Proceedings of the Standing Senate Committee on
Legal and
Constitutional Affairs
Issue 29 - Evidence
OTTAWA, Thursday, October 3, 1996
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-42, to amend the Judges Act and to make consequential amendments to another Act, met this day at 10:30 a.m. to give consideration to the bill.
Senator Sharon Carstairs (Chair) in the Chair.
[English]
The Chair: Honourable senators, we have the minister with us this morning. Unfortunately, he can only be here until 11:15. His officials, however, will remain until 12 o'clock when our meeting adjourns. With the minister is Andy Watt, Senior General Counsel of Judicial Affairs, and Harold Sandell, the Counsel of Judicial Affairs. I will ask the minister to be relatively brief in his comments so that we can get into questions, because I think that is primarily what is of interest to the members at this time.
The Hon. Allan Rock, P.C., M.P., Minister of Justice and Attorney General: Madam Chair, the background from which the appointment of Madam Justice Arbour arises is well known: the crimes of indescribable brutality in the former Yugoslavia and in Rwanda. Huge numbers of civilians, including women and children, were subject to inhumane treatment. There are allegations of crimes against humanity and war crimes. Madam Justice Arbour was requested by the Secretary General of the United Nations, Mr. Boutros Boutros-Ghali, to serve as the chief prosecutor of the United Nations International Commission on War Crimes for both the former Yugoslavia and Rwanda beginning October 1 of this year.
[Translation]
Madam Justice Arbour's name was suggested to the Secretary General of the United Nations by the outgoing Chief Prosecutor, Justice Richard Goldstone of South Africa. Madam Justice Arbour had an interview with the Secretary General, and she was his first choice for the position of Chief Prosecutor. Her service record as a judge is outstanding, her integrity is impeccable and she is fluent in both English and French. The members of the Senate committee will agree that she is the ideal person for this position.
[English]
The appointment of Madam Justice Arbour to this important and prestigious international position is, without doubt, a great honour for Canada. I might point that there are significant precedents for judges undertaking such work. The outgoing chief prosecutor for the former Yugoslavia and Rwanda, Mr. Justice Goldstone, is himself on leave from the South African Constitutional Court. One will also remember, Madam Chair, that Mr. Justice Robert H. Jackson, who was granted leave from the United States Supreme Court in 1945 and 1946, served as the U.S. chief prosecutor at the Nuremberg War Crimes Tribunal.
A necessary condition imposed by the United Nations for Madam Justice Arbour to take up this important appointment is that her salary and expenses be paid by the United Nations during the period in which she serves. This requirement relates to the UN's own rule for the independence of its chief prosecutor. I believe that, quite understandably, they are saying they do not want a member state to pay the prosecutor during the period she is at that work.
There is no provision in the Judges Act for a federally appointed judge such as Madam Justice Arbour to be granted a leave of absence without pay to work for an international organization such as the UN, nor does the act permit the salary and expenses of a judge during a period of leave to be paid by any organization or entity other than the Government of Canada, or, in the case of expenses, by the government of a province.
The amendments in the bill now before this committee have the full support of the Chief Justice of Canada and the Canadian Judicial Council. They would permit this type of arrangement to be entered into by Madam Justice Arbour and, in exceptional cases, by other judges.
The provision contained in the bill's proposed new section 56.1 would be a narrow exception to the general prohibition set out in section 55 of the Judges Act against the judge engaging in any occupation or business other than her or his judicial duties. It might be noted that the Judges Act already provides for judges to be granted leaves of absence in order to perform non-judicial duties, such as serving as commissioners of inquiry -- Mr. Justice Krever comes to mind, for example -- or to assist foreign countries developing codes of human rights. These existing provisions which require that the federal government continue to pay the judge's salary and that the federal or a provincial government pay expenses are not often used. It is my firm belief that the existing leave with pay and the proposed new section 56.1 leave without pay provisions would be infrequently used and would be exceptions to the basic principle that judges ought to be judging.
[Translation]
The new provision respecting leaves of absence without pay, which is designed to address cases such as the one of Madam Justice Arbour, where a judge has been invited to participate in the work of an international organization of states or an institution of such an organization, requires a leave of absence of at least six month's duration and the approval of the Governor in council, after consultation with the chairman of the Canadian Judicial Council. The Canadian Judicial Council has recommended that the amendment be of a general nature, not sui generis, or, in other words, that its application not be restricted to Madam Justice Arbour.
[English]
The new section 56.1 would also allow a judge who is on leave without pay of at least six months' duration for the purpose of participating in the work of an international organization of states, as well as judges on leave with pay for the purpose of taking part in other types of international activities, to receive reimbursement for expenses incurred in the process.
The reality of the world situation at present, and I see it more and more in my work, is that countries around the world are looking to Canada and other industrialized democracies to help in strengthening their legal and judicial systems. In the case of South Africa, the People's Republic of China, Russia and Ukraine, we are providing that help. The judiciary is in a position to be of particular help. This new provision allowing for alternative means of reimbursing the travel expenses incurred by judges in participating in such programs would be of particular help.
I stress to the committee that there are safeguards for leaves of absence without pay. Not only is the Chief Justice involved, but the Minister of Justice, cabinet and the Canadian Judicial Council are also involved. Therefore, it is not likely to be something that happens without serious and careful consideration.
Before closing, I wish to point out the provision in Bill C-42 which recognizes the importance of the Court Martial Appeal Court by including the Chief Justice of that court on the membership of the Canadian Judicial Council. The requirements of the Chief Justice of the Court Martial Appeal Court arising out of representational duties and functions inherent to the office are also reflected in the bill which would provide to that chief justice the same modest representational allowance that other chief justices receive.
Madam Chair, that is all I have to say in my opening remarks. I look forward to any questions that honourable senators might have about this bill.
[Translation]
Senator Beaudoin: I support the choice that was made. I know the candidate well. The legislation is not being amended for the sake of a single individual, but rather for the sake of a principle, that is freedom to participate in international activities. We have no objection to this nomination. We would have been prepared to pass special legislation to address a case such as this one. We have no objections in principle.
The bill was tabled late in the session, in June or July. Our attention was not drawn to this fact. I accept the principle, all the more so that it has been adopted by other countries such as South Africa. You mentioned the name of Justice Goldstone of the Constitutional Court. There are probably other cases.
There are other areas that we wish to address. We would like more information about the independence of judges with respect to section 55. The third point which was not addressed is that of pensions. I would like further clarification of this issue.
Let us just say that this is a concern of ours, not an objection. We agree that the choice made was an excellent one.
[English]
Mr. Rock: Madam Chair, let me deal first with the question of timing. It is true to say that we have been moving forward with this matter as expeditiously as possible since the spring. The first knowledge anyone had of this matter was in about February when the Secretary General of the United Nations approached Madam Justice Arbour. It was only after she had agreed to be considered that we became involved and began looking at what might be necessary to make that permissible. The formal request to us to enable the appointment occurred in late February or early March.
[Translation]
I attended meetings of the Canadian Judicial Council in March, I believe in Toronto. I raised this question at that time. I asked the Council if, given the circumstances, it would be preferable to introduce an amendment specifically to deal with Madam Justice Arbour's case, or if it would be better to introduce an amendment of a more general nature. They considered the matter and decided that it would be best to go with a general amendment to resolve all similar cases that might arise in the future.
[English]
We came back in late March with the express preference of the judicial council and prepared the legislation. We added some other things that we felt were needed to clean up the Judges Act, and pensions is among them. I will come to that point later, senator.
We put the bill before the House of Commons. It was passed at the earliest moment, which I think was June. It was a busy spring. We then sent it to this place.
I hope it is not thought by any senators that we were presuming that the Senate would act in the two days left in June. It would have been nice, but the very purpose of this place, of course, is to give careful consideration to bills. I had something similar happen in the past. In fact, it happened with respect to the last Bill C-42 which I introduced into the House. You may remember that it was an omnibus bill. It passed the House quickly, and we sent it here. Senators slowed down the process to take a close look at it. You found a couple of features in it which led us to withdraw a couple of amendments and rethink them. I very much respect and appreciate the care with which you are reviewing this legislation.
You are now examining the bill. If there is any sense of urgency, it is that Madam Justice Arbour's appointment be effective October 1. That was the date given to us by the United Nations. It was not our date. That is not to say that we are assuming the Senate will approve this bill or any such thing. That was the timetable in the international court, and we have been keeping that date in mind as we have followed the progress of the bill in the Senate.
The independence of the judiciary is an important point which, as I understand it from looking at the transcripts of your proceedings, lies close to the heart of the matters you wish to discuss today. The fundamental principle is that judges, once appointed, have tenure. In other words, they are there for life. They cannot be removed because we do not like a decision.
Second, while they are there they should only be doing the work of judges and not working on the side for businesses or in some other fashion. While that is an important principle, the Judges Act itself already contemplates exceptions. As I mentioned in my opening remarks, a judge might be appointed to chair a commission of inquiry or to arbitrate a dispute. That goes on all the time. It is a necessary adjunct to a judge's life.
Senator Beaudoin: We agree entirely.
Mr. Rock: What I am suggesting, senator, is that it is consistent with section 56. It grows out of the same notion that we would permit a sitting judge to leave her duties for a stated period to go to an international organization and fulfil a worthy endeavour. That is not inconsistent with her judicial role.
We have permitted Mr. Justice Krever to leave the bench to go to another setting. It is not inconsistent with his judicial role. It takes advantage of his judicial skills.
It is proposed that a judge also be permitted to go to an international organization, if the government of the day, the Minister of Justice and the judicial council agree that it is not inconsistent with her judicial roles and it fulfils a worthy public purpose
At the root of what we propose is if the task to which she is called is of sufficient importance and consistent with her judicial role, she should be permitted to do it. Since the international organization imposes the condition that they be allowed to pay her, we should allow such a thing to happen. Should it be just the "Arbour amendment," or should it be for all such cases? The judicial council thought it should be all such cases because the state of the world is such that this may not be the only time. That is not to say we are binding ourselves to do it again, but we are granting permission in this instance, with the agreement of the government of the day through Order in Council and after consultation with the Canadian Judicial Council.
I must say, senator, that I do not see an inconsistency with the independence of the judiciary. I am encouraged in that position by the fact that the Canadian Judicial Council saw no such difficulty.
Would judges be competing with each other for the reward of such work?
Senator Cools: Obviously.
Mr. Rock: I frankly do not know whether that is a possibility. Even if such a thing were to happen, we have to remember that the ultimate decision is up to the Governor in Council with the advice of the Canadian Judicial Council. If any such mischief were perceived to be arising, it could be controlled with those safeguards.
I will move now to the third part of Senator Beaudoin's question which dealt with pensions. I have invited Andy Watt to be here this morning specifically to deal with that matter. I ask him to provide that response.
Mr. Andrew Watt, Senior General Counsel, Department of Justice: Madam Chair, the pension question is a little difficult to understand, but I will do my best.
The existing section 44 of the Judges Act provides for pensions for surviving spouses of judges. Subsection 44(3), which is the one we are hoping to amend through this bill, provides that a surviving spouse does not have the right to a surviving spouse's pension if, at the time that the judge dies, she or he is already in receipt of a pension under this act.
We are satisfied that the intention of Parliament in drafting this prohibition was to prevent the situation where a surviving spouse collects a pension, marries another judge, that judge then dies, and that spouse collects a second surviving spouse's pension. There is a prohibition in most of the public service pension plans to that kind of thing. We are proposing in this bill that that prohibition continue. Where two judges are married to each other, we are attempting to allow for a situation where each can collect or one of them can collect a surviving spouse's pension and a regular judge's retirement pension.
The reason we are satisfied that the original intention of Parliament is not reflected in this situation or in the existing subsection (3), is that if the timing is different, if the judge is on the bench at the time that his or her spouse, who is also a judge, dies, the judge who survives can collect the pension, retire later, and get both pensions. We think it is quite consistent with good policy to allow a judge who is married to a judge to collect both those pensions because the judges both paid into them through their careers.
Senator Nolin: We must be clear on this point. We on this side do not have a problem with that section, but some of our colleagues do.
By the way, Mr. Minister, I had the chance to discuss that section with Mr. Watt prior to this meeting. He shed some light on my blindness.
Mr. Rock: He has the same effect on me, senator.
Senator Nolin: First, I want to go into the special bill aspect. The act almost refers to that possibility in section 56 when it says that a judge cannot do other functions unless they are expressly designated through federal law, a law of Parliament, or by a nomination or an authorization of the Governor in Council.
As Senator Beaudoin said, if we take the extraordinary situation in Bosnia and the special expertise of Justice Arbour, we should not have any problem with that specific case. However, we have a problem with a general application or a new set of possibilities for a judge to become involved internationally in other than judicial matters. We have discussed our concern at length in the Senate, and many people have focused on the issue of such an assignment lasting for more than six months. However, my concern is with assignments of less than six months. Please give us your opinion, because you are the chief legal advisor of the government.
A judge can take a leave with pay on the permission and at the request of his or her chief justice and embark on various endeavours for up to six months. The bill is quite clear on that point. At the same time, he or she will not be perceived by Canadians as still being independent from government influence. Ordinary Canadians would look at this judge and say, "He has received this appointment from the government, CIDA or an international organization of states, and we need an explanation." I have an understanding of what you mean in your bill, but we will need an explanation. Ordinary Canadians watching this judge are saying, "Is he still independent from government influence? Is he getting a freebie from his chief justice?"
Section 55 is rigid when it says "directly or indirectly." The law of the land, the intent of Parliament and the intent of the Charter are clear. We want our judiciary to be independent and impartial. We must look into all amendments or any changes to that principle from all angles.
Perception is also very important. We have just gone through the Bienvenue problem, and it was all perception.
As chief legal advisor of the government, what is your opinion? Is there a lack of independence or the perception of a lack of independence for a judge accepting such assignments from his chief justice?
Mr. Rock: In my view there is not, but let us examine the concerns you have expressed because they are important and they must be treated respectfully.
We are looking at three different aspects of the matter. First, we are looking at leaves of absence for up to six months, which we propose in this bill to be permitted by the chief justice rather than by me. We think that is more realistic, easier to administer, and puts the decision in the hands of the person who is best able to judge the appropriateness of a leave of absence. This could be for medical reasons, because the person has just had a baby, or for any number of reasons. It does not necessarily involve international involvement. Proposed section 54(1)(a) would devolve upon the chief justice the decision of whether a leave of absence for up to six months could be given to a judge.
The international elements are introduced in clause 5, subsections (1) and (2) of the proposed section 56.1, which provides that, with the authorization of the Government of Canada, a judge may take part in international activities as described therein. This proposed section also authorizes the judge to receive moving or travelling expenses, or other expenses either from the Government of Canada or from the international organization. This could be for work that the judge does in her part-time, on holidays or on weekends. A leave of absence is not necessarily involved here. This clause permits expenses to be paid by someone other than the Government of Canada, if we agree.
Approximately once every month, I receive a request from a minister of justice of another country for help. The state of the world is such that in Eastern Europe, Asia and Africa, countries are struggling into market economies. They are trying to attract investment. They are fledging democracies and they are saying, "Look, we cannot attract and keep investments unless we have a stable judicial system. No one will put a dollar into our country if they do not know that there is a legal system in place to protect it, to sue for breach of contract and to get damages if there is a wrong committed. Unless we have a stable judicial system, we cannot survive. Please help us. Tell us how we should appoint judges, how to write our rules of procedure, and how we should approach drafting laws."
Canada is an ideal advisor for those purposes because we are well respected around the world in those areas. They come to the Department of Justice, but we usually do not have enough money or enough people. They go to the judicial council or we go to the judicial council. The question we ask is: Are there judges available to help these countries?
Chief Justice Lamarre recently spoke at the bar association convention in Vancouver. He said that we should encourage such requests, but that we must bear in mind our responsibilities here at home. We have backlogs in our courts and we have a lot of work to do here. Perhaps we can make use of supernumerary judges -- that is, those judges who have reached 65 and elect for partial part-time work under the Judges Act. They can go for a month at a time and help in places like South Africa, Vietnam, or Ukraine. If such a thing were to happen, this amendment would allow the government of Ukraine, Vietnam, the UN, the OAS if they went to Chile, or ASEAN in Asia to help pay their travel expenses. Would it be seen as a perk or some favouritism by the Government of Canada? I hope not. There are some who could make that argument, but we are dealing with people of maturity who are serving as judges. We have shown enough confidence in them to make them judges in our courts, and where there is an important international element, we are fulfilling a responsibility to the world community. We are trying to help other countries get on their feet and we are using our judicial resources to enable that to happen, while at the same time allowing the others to pick up the expenses.
We then come to subsection (2), which involves Madam Justice Arbour. If there is a request that someone do this work on a leave-without-pay basis -- and, presently, that is prohibited; they can only be paid by us -- then subsection (2) permits the Governor in Council, after consultation by me with the chair of the Judicial Council, to give that kind of leave of absence without pay. That is for the more concentrated work and the greater commitment of time. That is for the Arbour situation.
Again, is there favouritism or lack of independence? You might say that even of the Krever commission or the Létourneau commission. If people are worried that any power by government to single out a judge for other work which might bring them additional challenges, prominence, and other opportunities -- and, Mr. Justice Krever could probably write a book right now that would sell very well -- undermines judicial independence, I do not agree. Applying my best judgment, and recognizing that no one can give the absolute answer on this point, I do not see it as a threat to judicial independence. Balancing all the factors together -- that is, our role in the world community and the particular expertise of our judges -- it is permissible to fulfil that role and to do it in this way without undermining judicial independence. I draw comfort from the fact that the Canadian Judicial Council itself is of the same view.
Senator Nolin: We will ask the experts.
Senator Cools: Thank you very much, Mr. Minister, for coming. I thank your staff for the assistance they have given me all summer.
I should like to say a few things at the outset. First, I do not think that anyone here has any quarrel with the person of Madam Arbour. My quarrel has been that in her instance perhaps a bill providing for her specific exemption from the law should have been brought before the House. It probably would have been law by now. I am also concerned that had this matter may be causing Madam Arbour enormous embarrassment.
Second, I have no problems at all with Canada being of assistance on social and judicial issues across the world or providing help where it has expertise. My quarrel, Mr. Minister, is with the use of judges to do so. These issues are quite different.
Third, Mr. Minister, I notice that you and several other persons have cited the case of Mr. Richard Goldstone who was the incumbent chief prosecutor until yesterday. I have inquired about Mr. Justice Goldstone. According to the South African Department of Justice, no legislative amendment was required to release Judge Goldstone from his position. Perhaps the South African government is wrong on this matter. From what I was able to glean, Mr. Justice Goldstone's situation was totally different because the law in South Africa is quite different. As a matter of fact, one of the persons with whom I discussed the matter said it was all sort of informal. I wish to put that on the record.
The minister has also spoken about judges going abroad to assist other governments to develop human rights codes. Which judge are we speaking about? Who assisted a government to write a human rights code?
Mr. Rock: If it is the position of Senator Cools that had the bill referred specifically to Madam Justice Arbour it would have been passed already, then I take it her quarrel is not with judicial independence, because the same argument would have arisen had the bill been specific to Madam Justice Arbour or general to all judges. So I take it she is not at all concerned with the point of judicial independence.
Senator Cools: I resent that, Madam Chair. That is not proper.
Senator Nolin: That is his answer.
The Chair: Senator Cools, you asked a question; the minister has answered the question. You will be given a chance to ask further questions.
Mr. Rock: Second, with regard to the situation with Mr. Justice Goldstone, as I mentioned, the only reason an amendment is required to our Judges Act is the prohibition against a judge receiving remuneration from any source other than us and the requirement of the UN that they pay the salary. It may be that South Africa had no prohibition that required legislative amendment, but that again does not change the fact that we have a sitting member of that country's judiciary who is on leave fulfilling this other international role.
I say that the example stands as a precedent to be considered, although it is not binding. Nor is it weakened by the fact that the circumstances in South Africa did not make a legislative change necessary.
On the third question, about judges advising various countries with respect to the improvement of their legal and judicial systems, I am certain that particulars could be obtained from the Canadian Judicial Council or from the office of the Commissioner for Federal Judicial Affairs.
Senator Cools: The minister has cited a particular instance. When he referred to developing the human rights code, he was speaking about a particular judge. I was not asking for all the other judges; I was asking for that judge's name, since you seemed to be referring to a particular one.
Senator Nolin: I do not think he referred to a specific judge?
Senator Cools: I just heard Mr. Sandell whisper "Strayer." Was it Mr. Justice Barry Strayer?
Mr. Harold Sandell, Legal Counsel, Judicial Affairs, Department of Justice: Yes. The most recent instance that I recall involved Justice Barry Strayer of the Federal Court of Canada, who was granted a leave of absence of three or four months, I believe, to assist the government of Hong Kong draft a code of human rights.
Senator Cools: When was that?
The Chair: Senator Cools, perhaps you may want to ask those questions after the minister leaves. The minister will leave in three minutes.
Senator Cools: Madam Chairman, I am quite prepared to wait, but the minister referred me to his staff.
The Chair: I realize that but I know that Senator Milne and Senator Pearson also have questions they want to put specifically to the Minister of Justice.
Senator Cools: Since the minister is leaving in two minutes, obviously all of us will not have time to ask our questions.
The Chair: If you ask your question, we might have time.
Senator Cools: Perhaps the minister could come back on another occasion, since he does not have time today.
Mr. Rock: Does the senator have another question? I am here to answer questions.
Senator Nolin: I have a short question. Do you know if Justice Arbour has envisaged resignation, as did Justice Deschênes a few years ago?
Mr. Rock: That is not something which, to my knowledge, has been discussed with her.
Senator Nolin: You do not chat with judges.
Mr. Rock: No, that is why I used the third person. I do not know whether that's been discussed with her.
Senator Nolin: I know of other ministers who have done that in the past. Never do that.
Mr. Rock: I do not know whether that has been raised with her. If that were to be put to her, she would have to decide whether she is prepared to relinquish her career as a senior appellate judge in this country in order to make this contribution to international objectives.
I ask rhetorically: Do we really want to put her or ourselves in that position? While I have profound respect for the concerns expressed by Senator Nolin and Senator Beaudoin about the care we must take with judicial independence, and while I think the questions you raise are good and legitimate ones, at the same time, we must balance our analysis of those issues against the other factors at play.
We have been presented with an opportunity to burnish and deepen our reputation internationally as a source of humane, knowledgeable and dedicated humanitarians prepared to involve ourselves in a leading role in a forum that is dedicated to prosecuting crimes against humanity. One of our best and brightest will take a leading role. Are we to inhibit her in doing so by making her choose between that responsibility and opportunity and her career on the bench?
I think she is about my age. She has a lot of good years ahead of her on the bench and I would hate to lose her as a judge in Canada. We are trying to keep her as a judge and also allow her to fulfil this international responsibility. I am suggesting that we can do both without undermining independence.
Senator Milne: What would be the specific effect on this present situation of the Senate amending or defeating this bill?
Mr. Rock: I will let Mr. Watt respond if I do not do your question justice.
It would make it very difficult, which is not to say that that is a reason for not following that course of action. You have to make up your own mind. It would complicate matters in this way: We would have to go back to the House of Commons, prepare other legislation -- a specific Arbour amendment if that was what was thought appropriate, or otherwise -- and then pass it through the House and come back here. Alternatively, we would have to confront Madam Justice Arbour with the possibility of resigning and taking on the role.
If we went back to the House for other legislation which was specific to Madam Justice Arbour, we would still have to confront the independence issue if she were to remain a judge, because those who are concerned with independence would say it of her specifically instead of judges generally, or she would have to resign.
The Chair: Mr. Minister, we thank you for your time this morning. We will continue our discussions with your officials.
Mr. Rock: Thank you, Madam Chair and members of the committee.
Senator Cools: I would have preferred to put my first question to the minister directly because he initially said that he contemplated a separate bill for Madam Arbour and that he consulted the judicial council. I gathered that, obviously, two sets of advice were going to the minister; advice, which I assume came from within the department, to make it an individual bill, and then advice from the judicial council to change the general application of the law. Am I reading the situation correctly based on what was said?
Mr. Watt: No, I do not think that is quite accurate. The minister wrote to the council on March 19 putting both of the options. He described the situation. I would be quite happy to read the letter.
Senator Cools: I would be happy if you would.
Mr. Watt: Writing to the chairman of the Canadian Judicial Council he said:
My dear Chief Justice:
As you know, the United Nations has announced the appointment of Madame Justice Louise Arbour as Prosecutor of the UN War Crimes Tribunal.
I may summarize briefly as I go through, but he announced that she would be replacing Mr. Justice Goldstone; that the appointment would take effect October 1, but that the UN would want her to act as a special advisor effective July 1.
The letter goes on:
The appointment means that Madame Justice Arbour will have to seek a leave of absence for at least two years in order to relocate to Europe and to undertake the duties of Prosecutor. While it might be possible under the existing provisions of the Judges Act to grant the required leave of absence, I believe that an amendment to the act would be desirable, for the reasons set out below.
He went on to set out the reasons, and then stated:
It seems to me that there are two options: a general amendment to the Act to cover the use of Canadian judges for international activities, or a special Act to allow Madam Justice Arbour to be given leave without pay and to receive salary and expenses from the UN.
Senator Cools: Mr. Watt, why did the department or the minister approach the judicial council seeking input on how to handle this matter? The judicial council, as it is currently constituted, really is not mandated to give such advice to the minister. It seems to me the issue of whether Parliament releases a judge from judicial duties is a political and a parliamentary matter and not one with which the judicial council should be concerning itself.
Mr. Watt: We have a practice in the department of consulting the judicial council on proposed legislative amendments affecting the administration of justice generally. I think it is a useful practice because, whatever the mandate of the Judicial Council -- and I can also read to you from the act on that, if you like -- it is a body of all the chief justices and associate chief justices in Canada.
The reason the minister consulted them, I believe, on how to proceed on this amendment, was his profound concern for judicial independence. This was an important policy issue, particularly in respect of the fact that we were proposing, for the first time, to allow a judge to go on leave without pay and to accept a salary from outside. We thought this was a very important principle upon which the government should not take a decision without some consultation with the judiciary.
When you think about consulting the judiciary, which is, in some senses, an independent institution of government, you must go to someone. Do you go to the 1,000 judges who are out there or to the judicial council? We went to the council.
Senator Cools: Was this matter raised at a meeting of the judicial council or, when you said you consulted the judicial council, did you mean that you consulted the chairman?
Mr. Watt: I believe it was discussed at a meeting of the judicial council. Certainly the chairman wrote back on behalf of the judicial council. The minister is invited twice a year to speak briefly to the semi-annual meetings of the Canadian Judicial Council, and he mentioned it in his speech, which happened to be a week after he wrote the letter.
Senator Cools: I will return to the judicial council in a moment.
The Chair: Clearly, Senator Cools, you are familiar with the Judicial Council Act, but I am not sure that the rest of the members are.
Senator Cools: I am very familiar with that act.
The Chair: Let me just tell you that the objects of council are set out in section 60(1) and include the promotion of efficiency and uniformity and the improvement of the quality of judicial service in superior courts and in the Tax Court of Canada.
Senator Cools: That role is far from what we are talking about today.
Mr. Watt: If I might add, in the reply from the chairman of the Canadian Judicial Council, he says that he discussed the minister's letter with the executive committee and subsequently with the council.
Senator Cools: Out of curiosity, how would the judicial council arrive at a decision like this? Would it be a vote at a general meeting of the members?
Mr. Watt: I do not know.
Senator Cools: That is the way with so many of these issues. No one knows.
This letter is dated March 19. It basically states that the person in question, Madam Justice Arbour, has been appointed. How was this matter actuated? I am certain this did not spring out of the air. Who approached the department to change the law?
Mr. Watt: Madam Chair, nobody approached us to change the law. We were advised by the Department of Foreign Affairs and International Trade that the UN might be considering this appointment, and then they told us the appointment had been made. We had to figure out whether an amendment to the law was required. We concluded that it probably was required.
Senator Cools: In other words, where did the request for this initiative come from? It seems to be a mystery. You are now suggesting that the initiative came from the Minister of Foreign Affairs.
Is there a body of correspondence? Was there a request made from Madam Justice Arbour to the Minister of Foreign Affairs? Was there a request from Secretary General Boutros-Ghali? These things do not just happen. The entire thing is mysterious. The Secretary General of the United Nations just looked into Canada and chose Madam Justice Arbour, with no selection process, and then suddenly, mysteriously, a piece of legislation springs into action. Is there correspondence around this issue? Is there anything you can share with us?
Mr. Watt: The only thing I can share with you, senator, is the UN resolution because I have not seen any correspondence between Foreign Affairs and our department and Madam Justice Arbour on this matter. To my knowledge, the choice of Madam Justice Arbour was entirely a UN affair. I do not think the Government of Canada was involved. The ambassador to the UN may have been consulted in the process; I am not sure of that. Certainly, it was presented to us as a decision of the United Nations, and the Government of Canada had the choice of whether to try to make it happen.
Senator Cools: Certainly the UN does not go about making appointments of people to --
The Chair: To be fair to Mr. Watt, Senator Cools, I do not think he can answer for the United Nations.
Senator Cools: I did not think he could, but he is suggesting that the Minister of Foreign Affairs has made a request to the department. That is an initiative from another department.
The Chair: For your information, the Conservative senators have in fact asked for Mr. Axworthy to appear before us. We have made that request.
Senator Cools: Very good.
Senator Lewis: I presume it is possible that the UN sent out application forms.
Senator Cools: Yes, that is a possibility. If I may say, tongue in cheek, Mr. Boutros-Ghali sent applications throughout the country, many applied and one judge was chosen. That is absolutely possible in today's community, but I think not.
I am curious as to why this consultation with the Judicial Council took place. No doubt all of these persons are eminently qualified. If I may, I would like to read into the record a news release from the Canadian International Development Agency, CIDA.
I was looking for the name of the ministry. It used to be under the ministry of foreign affairs. I believe it is no longer but is under one of the newly created ministries, International Cooperation.
The Chair: Again, Senator Cools, do not ask Mr. Watt questions which he cannot possibly answer.
Senator Cools: The issue here is the judiciary, and management of a program by the Office of the Commissioner of Federal Judicial Affairs. I do not know to whom to put these questions anymore.
In any event, I am referring to a news release which I would be happy to read into the record. It is dated September 24, 1996, and is entitled, "Canada to Assist Judicial Reform in Ukraine." It emanates from the CIDA media relations office and states in part:
The program, financed by the Canadian International Development Agency (CIDA), will help train judges across Ukraine...
Here is the part that concerns me:
The program will be managed by the Office of the Commissioner for Federal Judicial Affairs (OCFJA), which coordinates the Canadian judiciary's involvement in international cooperation.
The OCFJA will seek the support of other Canadian partners in carrying out the project, including the National Judicial Institute, the Association of Canadian Court Administrators, the Canadian Judicial Council and the Superior Courts and Attorney-Generals of Alberta, Manitoba and Ontario.
CIDA will provide $2.1 million for the project over three years....
Mr. Watt, consulting with the judicial council on this particular issue and complying with their request seems odd in view of the fact that the judicial council has established an interest in a particular set of programs funded by CIDA.
Senator Nolin: What is the date of that news release?
Senator Cools: I am putting this on the record because usually one does not pay much attention to these things. I do not follow CIDA's press releases. I just caught sight of this a few days ago.
Senator Nolin: Can we have a copy of that?
The Chair: I will make sure you receive one.
Senator Cools: These are different issues. We hear that on February 29, 1996, that the UN Security Council appointed Madam Arbour. Then I read this unrelated press release, which, again, treats this legislation as a fait accompli.
I am curious, because going to the judicial council now means going to a group of people who have a strong interest in receiving CIDA funding on this matter. It is unfortunate that the minister is not here because I want to know the Canadian government's position on it.
Mr. Watt: If I might try to respond, I do not quite see how the Canadian Judicial Council would have a strong interest in the passage of this bill just because it happens to be mentioned in a CIDA press release.
Senator Cools: Perhaps I should read you the bill itself. The bill says in clause 5, in proposed section 56.1(2):
The Governor in Council may, at the request of a judge and after consultation by the Minister of Justice of Canada with the chairperson of the Council, approve a leave of absence pursuant to paragraph 54(1)(b), without pay, to participate in the work of an international organization of states or an institution of such an organization.
Clause 5, in proposed section 56.1(2) names the chairperson of the judicial council as the definitive person with whom the Minister of Justice must consult on these leaves.
Mr. Watt: Madam Chair, we were aware that the office of the Commissioner for Federal Judicial Affairs has entered into an agreement with CIDA to be the executing agent for a project on judicial reform in the Ukraine. I think it also involves training court officials, administrators and so on. To the extent that Canadian judges will be used as experts in that process, I would be extremely, extraordinarily and flabbergastedly surprised if any of them went over there on leave without pay under the provisions of the section that Senator Cools has just quoted.
I think proposed section 56.1(1) of the bill might be of assistance in clarifying the ability of Canadian judges, with the authorization of the Government of Canada, to undertake international technical assistance programs like the one in the Ukraine and to be reimbursed expenses from an international organization. However, I do not think there is an international organization involved in that particular project. It would be the Government of Canada paying them anyway.
To the extent that they are now called upon to do so, with the approval of their chief, by Order in Council under the existing provisions of the act, the act is not clear. I think the new provision might help. However, I really do not think it gives the judicial council a major interest in that project or this bill.
Senator Cools: I believe the passage I read into the record says very clearly that the approval for the leave of absence, without pay, would be in consultation with the chairman of the judicial council.
Proposed section 56.1(1) reads, in part:
Notwithstanding section 55, a judge may, with the authorization of the Government of Canada, participate...
It goes on. Perhaps the witnesses can tell us, first, what are international activities and international organizations and, second, who is the Government of Canada in this legislation?
Mr. Watt: I can try. Starting with perhaps the easiest term, "international technical assistance programs" would be generally understood as programs for providing experts to help other countries abroad.
"International activities," I admit, is fairly vague, but I think it is understandable if read in conjunction with the rest of the paragraph. "International organization of states" are institutions or formal structures in which several countries are members, such as the UN.
"Government of Canada" would certainly include the Governor in Council. I think it would include ministers of the Crown and, pursuant to the Interpretation Act, probably deputy ministers. I hasten to add, however, that I doubt that most deputies would purport to give the authorization of the Government of Canada without consultation with the minister or cabinet.
The only possible exception to that, I think, is the Commissioner for Federal Judicial Affairs, who holds a special position under Part I of the Judges Act in that he is expressly mandated to act as the deputy for the minister in the administration of Part I, and this matter comes under Part I.
Senator Cools: Based on what you have just said, would I be right in concluding that the "Government of Canada" in this clause means the Commissioner of Federal Judicial Affairs?
Mr. Watt: I think it could if the Minister of Justice authorized him to do that.
Senator Cools: You just said that the commissioner is a deputy minister.
Mr. Watt: He is a deputy of the minister under section 74 of the Judges Act.
Senator Cools: Right. From my reading of this section, the Commissioner of Federal Judicial Affairs could grant authority without referring anything to cabinet or to the minister. Is my interpretation correct or am I wrong?
Mr. Watt: I think that could be possible if the minister said that he could do that.
Senator Cools: Perhaps Mr. Watt could read the section of the Judges Act which gives the Commissioner of Federal Judicial Affairs powers as a deputy minister.
Mr. Watt: I have it here. Section 74.(1)reads.
It shall be the duty and function of the Commissioner, under the Minister, to
(a) act as the deputy of the Minister in performing all such duties and functions in relation to the administration of Part I as fall, by law, within the responsibility of the Minister.
Also, 74.(1)(d), which says:
(d) do such other things as the Minister may require in connection with any matter or matters falling, by law, within the Minister's responsibilities for the proper functioning of the judicial system in Canada.
I am not sure subsection (d) would have any bearing here but it might.
Senator Milne: Following up on Senator Cools' concerns about the judicial council, has the judicial council commented on international assignments for Canadian judges?
Mr. Watt: I am not sure. Certainly, the chief justice, who is the chairman of the council, has made it clear -- and I believe he has also discussed this with the president of CIDA -- that to the extent the Canadian judiciary can help Canada assist developing democracies, he is prepared to offer encouragement and to help make it happen.
Senator Milne: Have they commented on whether this affects judicial independence?
Mr. Watt: No, I have not heard that issue raised. I am not saying they have not commented on it. I think they very much see it as not affecting judicial independence whatsoever.
Senator Milne: Have they commented on this bill specifically?
Mr. Watt: Yes. The minister wrote to the council in March and the council replied, after discussion by the chairman, the executive committee and the council, saying that they wanted a general amendment rather than a specific amendment.
Senator Pearson: My question is more related to my understanding of what happens at a war crimes tribunal. The role of chief prosecutor at a tribunal is not the same as that of a prosecutor in our adversarial system. There is an immense responsibility for collecting the evidence and things of a more general nature. It is difficult to equate the two.
Justice Goldstone's impact in raising the understanding of the world about the nature of these war crimes was significant, and I believe he is actually speaking here this afternoon, for anyone who is interested.
Can you make any distinction between the role of the prosecutor in Canadian law and that of the prosecutor in a war crimes tribunal? They have always been judges, as far as I know, in Nuremberg and so on.
Mr. Watt: In Nuremberg, it was a British judge, I believe, among others. You are right, senator, that the role of the prosecutor for the war crimes tribunals -- and there are two, one for Rwanda and one for Yugoslavia -- and the person in that position is in charge of both of them -- is much wider than that of a prosecutor in a case who stands up and says, "Here's the case on behalf of the Crown," and then sits down. As I understand it, the person in that position is in charge of collecting all the evidence, deciding what cases should be dealt with, ensuring that criminals are brought to justice, and trying to persuade countries to arrest them, which is the current problem, I gather.
I do not think Madam Justice Arbour will be appearing before the judges of the tribunals. I would be surprised. She has people under her to do that. I am stepping on thin ice in saying anything more because I do not really know exactly.
Senator Pearson: I just wanted to make clear for the record that it is a considerably different role, a very important role for all of us when you think of the horrible crimes that have been committed in Rwanda and Bosnia, to say nothing of what will happen in the long term. The reason one has had judges doing this kind of job historically is because it is the judgment of people with that kind of experience that is required.
When you think of the international implications given that we are working towards the development of an international court of criminal justice, this experience may also have implications in the future for our own judges. We will see what happens.
Mr. Watt: I know I do not have to respond, but if I could, I agree entirely. One of the reasons the UN wants judges for these roles is because of their independence.
[Translation]
Senator Nolin: If we can get away from Justice Arbour's case, she will feel better. Can a judge who wishes to participate in a conference being held outside in Canada do so?
Mr. Watt: Yes. Section 41 authorizes the reimbursement of expenses for travel to a general conference.
Senator Nolin: One that is held anywhere, even outside Canada?
Mr. Watt: Yes, although some approval is required.
Senator Nolin: I understand. Can a judge who wishes to participate in international activities do so at the present time?
Mr. Watt: Yes, but the following problem arises: section 55 is, we feel, qualified by sections 54, 56 and 57. Section 54 pertains to the general authority to grant leave. Section 56, for example, makes specific mention of commissions of inquiry and section 57 authorises the remuneration of judges for activities listed in section 56 and also for activities requested of the judge by the government. There is no mention of the word "international." We can read interpret this provision as if the word is implied or not. In our opinion, it is preferable to amend the act so that it is clearly stated that judges may participate in such activities.
Senator Nolin: I have expanded my second question to include international activities, using the same terminology as that used in the bill. Are you aware of cases where under the current legislation, judges have participated in international activities?
Mr. Watt: Yes, there is the judge who went to Hong Kong in 1989 to work with the Hong Kong government on the constitution; aside from that case, I am unaware of any others. Now, we have the case of Madam Justice Arbour who is in Europe.
Senator Nolin: With respect to Justice Arbour's case, the government could say: we have complied with the Judges Act and this particular individual served as a counsel at the court in The Hague. This activity is permitted under section 57 of the Judges Act. Is that the reasoning of the Government of Canada?
Mr. Watt: Yes, we passed another order on October 1 to extend the leave.
Senator Nolin: If we look at section 56.1(1) and compare it to the subsection (2) of the same provision -- I want to thank you for drawing my attention to this -- the list of possible activities in subsection (1 )is different from the list in subsection (2). For the benefit of my colleagues, could you explain the reason for this difference and enlighten everyone as to the nature of these differences?
[English]
Mr. Watt: In subsection (1), we have included three kinds of activities, I suggest: international activities, international technical assistance programs, or the third category, the work of an international organization of states or an institution thereof.
The effect of subsection (1) is limited. It simply allows a judge whose participation is authorized to receive expenses from the Government of Canada or from an international organization. It should be read together with the leave provisions, if leave is required, but, as the minister mentioned earlier, leave is not always required for a judge who is undertaking these activities.
Subsection (2) only deals with one of those three categories, that is, work directly for an international organization of states or an institution thereof.
If a judge is contemplating working for someone, or getting involved in an international activity and wants to take a leave without pay, then the only possibility is for the judge to work for an international organization or an institution thereof. It is not a general provision allowing leave without pay for any purpose or to work for a private corporation or to work on technical assistance programs generally.
[Translation]
Senator Nolin: I wanted to be certain that my colleagues' interpretation was the same as mine. You gave two examples of how, pursuant to the current legislation, a judge can participate in international activities while continuing to be remunerated as a judge and having his expenses reimbursed by the Government of Canada. This is valid for an international activity that is more important than a conference. This is your interpretation of section 57.1. Section 56.1 reads as follows:
Notwithstanding section 55, a judge may, with the authorization of the Government of Canada, participate in international activities... and may, if so authorized, receive moving or transportation expenses and reasonable travel and other expenses either from the government of Canada...
If no attempt is made to define or restrict the words "international activities," then you will agree with me that this is a very broad area. It could refer to any activity, provided it takes place outside Canada.
Mr. Watt: Yes.
Senator Nolin: Do you not see a possible conflict of interest there, or breach of a judge's independence? In an extreme case, the Government of Canada could decide to send a judge abroad for five months and to have his expenses paid by the government.
Mr. Watt: Yes.
Senator Nolin: That is if no effort is made to strictly define "international activity."
Mr. Watt: That would be possible under the existing legislation.
Senator Nolin: So, if I follow your argument, section 57.1 reads as follows:
Except as provided in subsection (3)...
We are not concerned about this, but rather about expense allowances that certain provinces give to their judges. You can read what it says.
[English]
It is your argument. Go through section 57(1) and explain to the committee how the Government of Canada can now pay a judge to embark on these international activities.
Mr. Watt: Section 57(1) states:
Except as provided in subsection (3), no judge shall accept any salary, fee, remuneration or other emolument or any expenses or allowances for acting in any capacity described in subsection 56(1) --
You will remember that was with respect mostly to Royal Commissions and things like that.
-- or as administrator or deputy of the Governor General or for performing any duty or service, whether judicial or executive, that the judge may be required to perform for or on behalf of the Government of Canada or the government of a province.
Subsection (3), which is the exception mentioned there, states that judges, in the cases described in subsection (1), can receive their moving and transportation expenses and reasonable travel and other expenses as long as they are paid by the Government of Canada or the government of a province.
I think you can read the closing words of subsection 57(1) as fairly broad. They state:
...or for performing any duty or service, whether judicial or executive, that the judge may be required to perform for or on behalf of the Government of Canada or the government of a province.
Senator Nolin: I underline the two words "judicial" and "executive." That is the kind of duties envisaged by your argument.
Mr. Watt: Yes.
Senator Nolin: The proposed section 56.1 is broader than that. There is no limit in terms of international activities. As long as they are international activities, the Government of Canada can pay for that. I do not want to put forward names or numbers. Is it possible that an ordinary Canadian is watching a judge receive from the Government of Canada his expenses for international activities? Can that Canadian deduce that that judge is receiving a gift from the Government of Canada? Will that judge remain independent and impartial under the wording of section 11(d) of the Charter of Rights? That is my only concern.
Mr. Watt: That is a serious concern, senator. I understand why you have it. I can only say that I hope that the Government of Canada would, under the watchful eyes of the judiciary and the Canadian public, not fall into any trap along those lines.
Senator Nolin: It is your argument that section 57(1) already allows for such situations for judicial and executive reasons. You now want to introduce new wording which is much broader. What can a judge do apart from judicial and executive duties? That wording is in the act. Why do you want to have a broader manoeuvring space?
Mr. Watt: There are two basic reasons for having that provision. One is to remove any doubt that judges could undertake international activities, without getting into what those are. The second is the much more technical question of the receipt of expense from an international organization of states.
Senator, I think that you have to look at this paragraph as a whole and from the point of view that the words "international activities" would be read as being more limited than, say, going to work for a mining company in Johannesburg.
Senator Nolin: I am not alluding to IBM. I am not saying that at all. I am speaking generally.
The Chair: Senator Nolin, I am going to have to bring this meeting to a close.
Honourable senators, I will be away from October 4 until October 16. I therefore would like to have a motion to the effect that Senator Lewis replace me as acting chair and that Senator Pearson be made a member of the steering committee during that time.
Senator Milne: I so move, Madam Chairman.
The Chair: Does that motion meet with the approval of the committee?
Hon. Senators: Agreed.
The committee adjourned.