Proceedings of the Standing Senate Committee on
National Finance

Issue 21 - Evidence


OTTAWA, Thursday, December 10, 1998

The Standing Senate Committee on National Finance met this day at 10:30 a.m. to examine the Main Estimates laid before Parliament for the fiscal year ending March 31, 1999.

Senator Terry Stratton (Chairman) in the Chair.

[English]

The Chairman: Honourable senators, today we have with us the Commissioner of Federal Judicial Affairs, Mr. Guy Goulard.

I understand, sir, that you have a brief presentation and then we will go to questions.

Please proceed.

Mr. Guy Y. Goulard, Commissioner, Federal Judicial Affairs: First, I would like to offer to all of you my own as well as my staff's condolences on the passing away so suddenly yesterday of Mrs. Cohen. I had the pleasure of appearing before her committee, as well as privately, and I can only guess at how much this affects and saddens you all.

Not knowing what I might expect today, I prepared a brief presentation on what my office is all about. With your permission, I will start that. Either during or after my presentation, if you have any questions, I will be pleased to provide any information that I have or obtain the information that I do not have with me that you might wish to receive.

[Translation]

I have been the Commissioner for Federal Judicial Affairs for a little over four years. I am pleased and honoured to have this opportunity to inform you on the mandate, mission and organization of our office.

We have provided very little information to parliamentarians about the organization of the judiciary in Canada. Therefore, I hope to be able to provide you with documentation containing a bit more information.

[English]

The mandate of my office comes from the Judges Act. It was incorporated into the act 20 years ago to assure some independence of the administration of judicial affairs from the Department of Justice. My minister is the Minister of Justice, and I hold the rank and status of a deputy head of department.

Section 74 of the act provides a threefold mandate for the commissioner: first, to administer Part I of the Judges Act, which basically deals with all issues of salaries and benefits paid to federally appointed judges; second, to prepare the budget for the Federal Court of Canada, the Tax Court of Canada, and the Canadian Judicial Council.

In terms of the Canadian Judicial Council, its staff and operation is basically part of ours. Although it has its own facilities and operates at arm's length, we administer its budget. As for the Federal Court and the Tax Court, according to the Judges Act the functions that I carry out are performed by their respective administrators, who according to the act perform under my direction. Basically, over the past years, it has been totally hands-off. We look at their budgetary submission and pass it on to the minister with our comments, but they run their own operations.

The third part of the mandate which makes the job fascinating and interesting is that the minister can request the commissioner to undertake any mission in connection with any matter falling within the minister's responsibility for the proper functioning of the judicial system in Canada.

We have a budget envelope of approximately $280 million, most of which goes to salaries and benefits payable to federally appointed judges, as well as retired judges and surviving dependants of judges.

We have an office staff of approximately 50, divided among our five main areas of involvement. First, the Judicial Appointments Secretariat process was created about ten years ago. This involves the application process for lawyers. Any person who is a member in good standing of a provincial bar for ten years, or a combination of being a member of the bar and being a provincial judge for ten years, may submit an application to be considered for judicial appointment at the federal level. This is done by submitting a personal history form, a document of roughly 12, 13 pages. The candidates are then evaluated by a provincial committee of seven persons. Each province and territory has one of these committees. There is one additional committee for Quebec and two for Ontario because of the large number of candidates in these provinces and to assure some regional input into these evaluations.

These committees, as I say, are made up of seven persons: three lawyers, three lay persons, and one judge. In each province, the chief justice is asked to submit a list of names of judges to sit on the committee. The Attorney General, the Law Society, and the provincial branch of the Canadian Bar also submit names. The Minister of Justice then appoints three persons of his or her own choice, two lay persons and one lawyer.

These committees evaluate each of the candidates by consulting and by discussion in meetings. There is a possibility of interviews, but all committees have chosen not to go this route because of a lack of resources. The committee members all do pro bono work, and since this process already involves a lot of time for them, there have been no meetings with the candidates.

Last year, they held 44 meetings across the country. As of the end of the month, there will have been 53 meetings.

There is an extensive consultation process. They are provided with criteria evaluation, namely, competence in the law, experience in the law, character, and temperament. Following that, one of three recommendations is sent to the minister, "highly recommended," "recommended," or "unable to recommend." From 1989 to this year, the average of "unable to recommend," those who are not recommended, stood at 66 per cent. Last year, it was 63 per cent. This year, interestingly, the rate of "not recommended" has dropped to 45 per cent.

For the current year, there has also been a drastic increase in the number of applications, following a couple of years where there was a decrease in the number. This might be a sign that not only are we attracting more candidates, but that we are also attracting a higher calibre of candidates.

Although it is not a statutory requirement, the present minister and those who have preceded her for the last ten years have agreed and been supported by cabinet that only candidates who are either "highly recommended" or "recommended" will be considered for appointment. There has been no exception to that. The only ones who do not need to go through the committees are appointees to the Supreme Court of Canada.

Last year, we had 317 applications, compared to 492 for this year, which is a 50 per cent increase.

Senator Cools: This is for how many positions, for how many judgeships?

Mr. Goulard: Last year, we had 37 appointments, this year, 55.

That is our role in the judicial appointments process. Once we have sent our recommendation to the minister, then we are totally out of the process.

The second branch of our operation is the administrative services.

[Translation]

The judges' administration section deals with all matters concerning judges personally, which includes the preparation of documentation for Orders in Council, including appointments, retirements, leaves of absence, and extension for such matters as removal allowances. This section also deals with all financial matters related to judges, such as salaries and travel expenses. All the money that a federal judge receives goes through our office.

The policy and corporate services section deals with office personnel finances, and changes in salary for judges and administrative staff. This section is also responsible for the development of new policies and programs. I will mention a few new programs that we've implemented in the past few years. The bureau is also responsible for publishing federal court decisions. In the past, the Department of Justice selected the decisions that would be published. This is now done by our bureau. The percentage of decisions published has dropped from 25 per cent ten years ago to approximately 8 per cent last year, simply because of the volume of decisions which makes it impossible to publish more of them. Last year, we published 3,000 pages, which represents an increase. In order to ensure that the legal community has access to decisions, all Federal Court decisions are available on the Internet and access is free to the public. Initially, decisions are published in the language they were written in, and later in both official languages.

The fifth aspect of our services is language training. This program was instituted in 1978 when language training for members of the judiciary was transferred from the Public Service Commission training program to our office. This training includes three programs and is specialized in legal terminology. There is a program for training in English terminology for francophone judges and the reverse for anglophone judges. We also have a training program for judges from anglophone provinces whose mother tongue is French. In my case, I am Franco-Ontarian. I studied and practised law in Ontario, mostly in English. In order to understand, express oneself and write in one's first language but with a technical terminology that is perhaps less familiar, we offer a refresher course in terminology. We are considering offering a program for administrative tribunals and federal Crown attorneys. We are also considering the possibility of offering this to their provincial counterparts.

In 1997-98, 305 federally-appointed judges and 47 provincially-appointed judges participated in our legal training program. I would like to say a few words on some new programs that we have undertaken in the past few years.

[English]

New programs in which we have become involved concern the maximum exploitation of technology. Courts and judges in particular have for a long time been left behind in terms of using modern technology in the performance of their duties.

Three years ago, we opened an intranet -- JAIN -- on the Internet. It is the Judicial Affairs Information Network. It now links 600 of our federally appointed judges, or 60 per cent of the 1,000 judges. This provides them not only with an electronic mail facility but also with secured discussion groups, open only to federally appointed judges, on topics such as judicial conduct, criminal law, family law, appeal process, juries, areas where judges can raise issues. Let me give you an example. There was a Manitoba judge who was sitting up North and he was faced with a new twist in a trial. He raised the issue on the Net. Within an hour, he received some comments from colleagues across the country, saying, "I have just done a case like this and here are some of my notes."

The intranet also serves as a library. If a paper is delivered at a judicial training program, that paper is then put on the intranet so that all judges across the country, not only those who attended the training program, can access it. The intranet is basically free once the service is set up. Word is spreading and there is growing demand. We hope that in the near future all federally appointed judges will be included; and if my minister and Treasury Board agree, we might consider expanding the program to provincially appointed judges, who most of the time deal with federal statutes of the Criminal Code, young offenders, and child maintenance guidelines. We are looking into that.

Finally on that front is video conferencing. We have been working with provincially created courts, provincial attorneys general, our own departments, especially Industry and Public Works, to do pilot projects on the use of video conferencing in the courts. A number of our judges travel across the country to hear cases and motions and to do sentencing. There could be substantial savings in travel costs with good use of video conferencing. As well, we have opened a judges central travel service, through Ryder, who provides services not only to the federal government but also to a number of provincial governments and large corporations. This allows judges to get better prices on their travel. We provide all our judges with a travel credit card, issued by Enroute Diners, which has reduced or eliminated the need for offices to issue travel advances, with 1,000 judges, some of whom, the Tax or the Federal Court, must travel because of their duties. This saves us issuing a number of travel advances, and we have already seen substantial savings there.

We have also negotiated with four small tribunals or agencies to provide specialized corporate services. We are seeing definite cost savings there because of sharing of resources. These very small agencies cannot have a personnel, an information technology service. We are sharing and the benefit to us is that we have been able to add a few staff members to our small complement. We have entered into discussions with a few others to provide similar services.

We have been very lucky in Canada that we have had no major security issues raised in our courts as a result of tragedies.

[Translation]

In order to assess security problems, we have had talks with the RCMP which made a commitment to providing facilities to evaluate safety concerns. The RCMP offered to provide courses to help judges take simple and easy measures to reduce risks. We have also distributed an excellent guide from the National Center for State Courts regarding safety in courtrooms.

We are aware of the fact that judges work under increasingly stressful conditions and that there is a lack of counselling services for them. In 1995, we provided judges with a program in cooperation with the Canadian Judges Conference and Corporate Health Consultants Limited. We provide an assistance program that enables retired judges and members of their family to make use of professional counselling services.

The last area of involvement is international cooperation. In light of the great interest expressed for our democratic and parliamentary institutions, there has been increased demand for Canadian contribution to efforts to improve such institutions. The Chief Justice of Canada asked me to coordinate the participation of federally appointed judges in international cooperation programs and to try to put some order in the requests we receive and provide a response insofar as possible. At the request of CIDA, we agreed to be the executing agency for a reform program that involves cooperation between judges in Canada and the Ukraine.

[English]

This is a three-, probably four-year program that is providing Canadian input into the Ukrainian judiciary, which is trying to cope with their return to a democratic, open government system. It is proving to be a fascinating, slow process, but just the fact that they are now discussing it, we felt we have helped them develop a code of judicial ethics. We are helping them create three model courts, where the notion of a registry is implemented. In times past, in most courts, and still in some, people were able to walk directly into a court house and go to a judge's office. This included politicians whose purpose might be to influence a judge. We are working to create that barrier, where the public would have to register at a counter prior to admittance.

This, Mr. Chairman, is basically what we are involved with. I will be happy to provide any additional information you may wish to obtain.

The Chairman: Thank you. Your presentation this morning has been most informative.

Senator Bolduc: I have a few questions. One of them is about the Federal Court. To my understanding, when you speak of the Federal Court, the Supreme Court is completely outside of that.

Mr. Goulard: Briefly, when the Fathers of Confederation were deciding on how best to share jurisdiction, the provinces kept the power to create courts of general jurisdiction. The provincial courts of appeal, superior courts and provincial courts, as we call them, are created by the provinces. The judges are appointed with equal input by the federal and provincial governments.

The federal government kept the power to create a general court of appeal. That is the Supreme Court of Canada, which is part of the federal courts system. The federal government also has the power to create special courts <#0107> the Federal Court of Canada, Appeal and Trial Divisions, and the Tax Court of Canada.

Senator Bolduc: There is the Supreme Court and the Federal Court of Appeal.

Mr. Goulard: There is also the Trial Division of the Federal Court.

Senator Bolduc: Yes, on both sides. Then you have the Tax Court. You do not have other tribunals by the federal government.

Mr. Goulard: No, except we have a contract to provide specialized service.

Senator Bolduc: When we talk of the federal court here, we do not include in that the people of what we call La Cour supérieure in the Province of Quebec, the judges of which are appointed by the federal government.

Mr. Goulard: That is right.

Senator Bolduc: They are not part of the federal court.

Mr. Goulard: That is right.

Senator Bolduc: Is the provincial appeal court in the province part of it or not?

Mr. Goulard: It is the same as the superior court. It is created by the province, administered and resourced by the provinces, but we provide the judges.

Senator Bolduc: How many judges comprise the Federal Court?

Mr. Goulard: The Supreme Court has nine. The Federal Court and the Tax Court have a total of about 60. The superior court and the Court of Appeal, 930. As of the first of the month, I think it totalled 1,001 judges in all these courts.

Senator Bolduc: However, your jurisdiction is not only over the 100 or the 90.

Mr. Goulard: It is the 1,000 less the Supreme Court of Canada. Their salaries and benefits and administration are provided by their own registrar.

Senator Bolduc: You take care of the working conditions -- let us call it that for the moment -- of the 1,001.

Mr. Goulard: We administer their salaries and benefits, not the working conditions.

Senator Bolduc: That is my first aspect, so people can understand what we are talking about here.

Mr. Goulard: That is a fascinating area.

Senator Bolduc: The Federal Court is not what people think it is. It is only 90 people.

Mr. Goulard: It is a maximum of 90.

Senator Bolduc: We have federal judges, by which I mean federally appointed judges. There are 1,000 people. When you go through the consultative route that looks at the selection process, it is not based purely on merit like it used to be in the civil service.

Senator Cools: It is not a merit process at all. People would like us to believe it is.

Senator Bolduc: It is better than a patronage appointment. It is process that is a mix, with people coming from various backgrounds.

The Chairman: It is far better than it was.

Senator Bolduc: Yes. Then you have, of course, the final judgment by the cabinet, or by the minister, I suppose.

Mr. Goulard: That is right, yes.

The Chairman: This is truly a fascinating area. It is not one that many people know about. Is there something in writing that we could have that would describe the breakdown?

Mr. Goulard: Yes. We have a document that we send to candidates. It is a brochure. I will send you as many copies as you want.

The Chairman: We would appreciate that.

Senator Bolduc: You have what you call consultative committees in each province. Is the consultative committee composed mostly of people with a background in law?

Mr. Goulard: It is comprised of one judge, three lawyers, three lay persons.

Senator Bolduc: Of the three lay persons, one is a representative of the Minister of Justice.

The Chairman: Two represent the minister.

Mr. Goulard: There are two from the minister and one from the provincial Attorney General.

Senator Bolduc: From the Minister of Justice, are they laymen or are they people who have some familiarity with the legal system or the judicial system?

Mr. Goulard: At least one or two have a legal background. One in Montreal did his law school and then went into business.

Senator Bolduc: What are the criteria for choosing them?

Mr. Goulard: They come from the list. The minister will look around and depending on the need he or she will choose someone. If there are few women, the minister may choose a women; perhaps someone from a rural area. There are teachers, accountants, retired business persons. There is a wide variety of persons serving. I am always impressed by the quality of their input. They call a lot.

Senator Bolduc: You have a system of grading them: "highly recommended," "recommended" and "not recommended."

Mr. Goulard: Yes.

Senator Bolduc: You choose between the first two groups.

Mr. Goulard: The minister chooses.

Senator Bolduc: That means you have a process where, let us say for a group of 300 people, you choose about 50 per cent of them. Then that goes down to an eighth or fifth. Is it that form of screening?

Mr. Goulard: In Ontario presently, approved persons and provincial judges do not go through the process. They must submit their names, but they are not evaluated. Their names automatically go on the list. For Ontario, where there are now maybe 10 openings -- I am guessing here -- the minister must have a list of almost 300 names. They have all been through the process except provincial judges.

Senator Bolduc: The implicit assumption in the process is that the process should be such that very good and highly recommended people in the legal profession will come into it, plus the judges from the provincial courts.

Mr. Goulard: That is right.

Senator Bolduc: Is it something like that?

Mr. Goulard: It is exactly like that.

Senator Cools: What are the criteria for determining your three categories? How are those determinations made? You talk about the merit system of the civil service.

Senator Bolduc: They are mentioned in this document.

The Chairman: It is on page 3.

Mr. Goulard: The criteria are knowledge, experience, character, and temperament.

Senator Cools: How do you make those determinations? You remember years ago when the civil service was first set up, they developed exams, tests. Maybe I should put the question another way. What are the tests that you use to come to these conclusions of these criteria? In other words, what is the test that you use for those criteria?

Mr. Goulard: There is the consultation. Each candidate must give at least four references. Those references are all contacted. They may be lawyers, judges, or people from the community. Also, the committee members will call literally dozens of lawyers and others to inquire about the candidate's knowledge and experience of the law. There may be, for example, a very knowledgeable professor who has never set foot in court; therefore, he has no experience before the courts.

Senator Cools: You take people's words for it. In other words, if this senator here puts in an application and you determine knowledge on what other people say about her, no objective test is applied to her.

Mr. Goulard: There is also the candidate's documentation. The candidate is asked to tell us his or her field of experience, if he or she has been involved in teaching, a list of judges he or she has appeared before. The same applies for lawyers who have been involved in working with them. It is subjective, but at least it is subjective by seven persons, and they usually arrive at a consensus. We have had a few cases where a dissenting vote has been noted in our précis to the minister. It is not perfect.

Senator Cools: I hear a lot about that process, and complaints remain about the fact that it is largely informal, it is largely hearsay, and very personal, very subjective. That is what I have heard.

Mr. Goulard: Yes, and I have heard the same. However, for judicial appointments, either myself or my judicial appointments secretary must be at each meeting. I have been there; I have seen them work. It is done very consciously and seriously. Of course, it is hearsay.

Senator Cools: Always. You are always at risk of being criticized anyway.

Mr. Goulard: Very often, they will adjourn to get more information, and occasionally more than once. They do the best that they can, given their resources, to try to arrive at a judgment that is fair. As I said, more than 50 per cent over the years have not been recommended. When they get into a meeting, very often the high flyers, the John Sopinkas of this world, for example, will not cause the committee to lose much time. On the other hand, if someone with no knowledge, no experience is up for consideration by the committee, the committee will say, "This is a joke. This guy or gal cannot be seriously considered. There is no knowledge, no experience."

Senator Bolduc: May I add that, in the case of provincial judges, you have more than hearsay in that case. You have their judgements. They have jurisprudence.

Senator Cools: When you say provincial judges, do you mean provincial appointments or federal appointments to the courts?

Mr. Goulard: They are provincially appointed.

Senator Cools: When I say provincial, I mean provincially appointed.

Senator Bolduc: Those people have rendered judgments. You have access to what they have said in law.

The Chairman: I have a supplemental question to that. Of the four criteria, are character and temperament the most difficult?

Senator Lavoie-Roux: How do you assess them?

The Chairman: This is highly subjective.

Mr. Goulard: Exactly, yes. In one case, I knew a lawyer through an association whom I thought to be a good lawyer. Evidently, he had good knowledge and good experience, but the committee determined that he should not be appointed to the bench because he could not work collegially. This opinion was unanimous throughout the consultation process. You need someone who can listen and who can be decisive. These are necessary character traits.

There is also a question about whether the candidate is in default on a support judgment, because over the years there were a few cases where it was discovered after a judge was appointed that he was in default. We do not need a judge who is being sued, especially on a child maintenance or spousal maintenance issue.

Senator Cools: Before I go on to my other questions, I would like to continue along this line because it is very interesting. There are many complaints surrounding this process. The complaints relate to the issue of subjectivity. How many of these committees are there?

Mr. Goulard: There are fifteen, one per province and territory, two additional for Ontario and one additional for Quebec.

Senator Cools: Could we have a list of the chairmen of each of those committees?

Mr. Goulard: Yes.

Senator Cools: For example, is there a committee for Ottawa?

Mr. Goulard: In Ontario, there is one for central Toronto, one for southwest and one for northeast.

Senator Cools: There are three. Who are the chairmen for the three in Ontario?

Mr. Goulard: John Laskin is chairman for Toronto, Art Lamarche, who is a lay person, is chairman for the east and north. I do not have the west Ontario committee.

Senator Cools: How are they chosen?

Mr. Goulard: They are chosen by the committee.

Senator Cools: They are elected by the committees.

Mr. Goulard: They are chosen by the committees. In some cases, they are judges. In other cases, they are lawyers or lay persons.

Senator Cools: I have a set of questions related to some of the issues that you raise. I think this is very interesting subject matter. I think this committee should continue to pursue this because it has been a long time since we have looked at some of this subject matter. It is extremely interesting.

My questions relate to the earlier issues that you raised about international activities with CIDA. I believe you said something about working at CIDA's request to execute reform in programs in Ukraine. I am reading from my own notes, which are a little sketchy.

Our committee has been trying to find out a lot about how CIDA works, something about how CIDA operates and how it works because it seems to be quite a mystery to some of us.

Mr. Goulard: If you find out, let me know.

Senator Cools: We were hoping to find out something from you.

We are told that you are in charge of a particular CIDA program, sending judges across the world to do various judicial tasks. We were hoping that you could tell us how much money the program has, the processes by which you operate it, which judges are going across the world, how much they are paid and which programs that they are working on.

Mr. Goulard: I hope we have the rest of the day. Are you interested in how I became involved in that particular program?

Senator Cools: Yes, and how the government got involved.

Mr. Goulard: Before coming to my present job, I was in abeyance for a while, waiting for an appointment after serving as an Executive Director on a Royal Commission on Electoral Reform and Party Financing. When that ended, I was in a holding pattern. While I was the special advisor to the then Deputy Minister of Justice, I was asked to put together a few cooperative programs with the Czech and Slovak Republics. Having that experience, CIDA approached me to develop a program with Ukraine as a result of discussions between our respective prime ministers and ministers of justice.

Senator Cools: When you say CIDA approached you, who at CIDA would that be? Was it the president?

Mr. Goulard: No. It was the analyst responsible for that part of the world.

Senator Cools: They approached you personally.

Mr. Goulard: They approached me personally. My first reply was that it was fascinating stuff, I would love to do it but that I had just stepped into this new job, so no. They approached again and convinced me that it would give me the resources to hire persons and that because it was strictly judicial --

Senator Cools: What year is this?

Mr. Goulard: It was late 1994, early 1995. I was appointed August 1994, and it was in the following months.

Senator Cools: That is before you were Commissioner of Judicial Affairs.

Mr. Goulard: No, that was after I became Commissioner.

Senator Cools: After you became Commissioner of Judicial Affairs, CIDA approached you. Please continue.

Mr. Goulard: I accepted, and we eventually signed an agreement between my office and CIDA that provides us with roughly $2 million over three years.

Senator Cools: Could I ask you under what authority of the Judges Act would you be signing such an agreement?

Mr. Goulard: By the authority of then Minister Allan Rock, in writing, adding this under the missions that the minister can give me under section 74.1(d).

Senator Cools: I would not have thought that the Minister of Justice had anything to do with international aspects. I know this section of the act that you are referring to. Perhaps we could put that particular section of the act on the record. Could you read that section of the act to us?

Mr. Goulard: That is section 74.

Senator Cools: Just read it into the record, please.

Mr. Goulard: 74.1(d) provides that the Commissioner shall "do such other things as the Minister may require in connection with any matter or matters falling, by law, within the minister's responsibilities."

Senator Cools: How is the judicial system in the Ukraine at all within the ministerial responsibility of the Minister of Justice of Canada?

Mr. Goulard: Our minister has received, and still receives, a number of requests from her counterparts around the world for a Canadian input into their continuing efforts.

Senator Cools: I understand the continuing efforts. I am trying to get at the beginning. I know that it is continuing. I am trying to figure out how section 74 of the act, which you have just read, which talks about the area of ministerial responsibility to Parliament of the Minister of Justice or the Attorney General of Canada, how within that section that can possibly mean that the Minister of Justice has some ministerial responsibility for justice in other countries. We are not talking here about a colonial secretary, right? We are talking very clearly about the position of the Attorney General of Canada and the Minister of Justice. It may very well be that it has been interpreted that way. I am just trying to be clear on how it got to be interpreted that way.

My understanding of the role of the Minister of Justice has always been that it is confined to the boundaries of Canada and that as soon as one steps outside of the boundaries of Canada, however noble and just the cause may be, the purview of this minister automatically moves to that of another minister of the Crown.

If you go back to how the Brits used to organize it, they had home affairs and then foreign affairs, which were colonial affairs or whatever they called it. In the British system, these two ministerial roles were always kept quite separate. I am just wondering how they have become merged here.

Mr. Goulard: I believe it is a relatively new demand not only on the Minister of Justice but the Commissioner of the RCMP, the Chief Electoral Officer, and the House and the Senate. There is demand on all these institutions.

Senator Cools: You say there is demand on the Senate?

Mr. Goulard: I believe that there have been senators who have provided some input.

Senator Cools: Perhaps we could have something on the record to show how the Senate has been involved. If the Senate has been involved, this is new to me.

The Chairman: The Senate has been involved in what?

Mr. Goulard: The Senate has been involved in providing Canadian input to ongoing efforts in other countries to reinforce their institutions.

The Chairman: Absolutely. I believe we recently had a group come back from an election in Taiwan.

Senator Cools: That is a case of individual senators and parliamentarians, and so on, not the Senate as a whole.

Mr. Goulard: I am talking about senators, of course.

Senator Cools: It is not the Senate, it is individual senators. I went to South Africa.

Senator Bolduc: I would like to come back on that. It is more than that. The Senate also has been involved because employees of the Senate have been sent as technical officers or technical support in some countries. That is what I understand.

Senator Cools: They are employees of the Senate. It would be nice if the Senate could know some of this. It is very interesting. The Senate can go anywhere because these are political tasks.

The Chairman: We can go as long as we have the money.

Senator Cools: Yes. Those are political tasks. This is judicial. I am trying to figure out how the mandate for the independence of judges in Canada possibly extends to political activities outside Canada. That is what I am struggling with. Once you leave the boundaries of this country, it does not matter what it is you are doing in another country, it is a political activity.

Mr. Goulard: Of course, yes.

Senator Cools: I am trying to figure that out. Perhaps you could help me with that. If you cannot, I understand, and you can give me some information or come back again. It is not a problem.

Mr. Goulard: I will try to present the scenario. The minister gets the request from a country, be it the Czech Republic or wherever.

Senator Cools: No, before you said that CIDA approached you.

Mr. Goulard: Yes, but this had already begun at that level.

Senator Cools: Who approached whom? Did CIDA approach Justice or did Justice approach CIDA?

Mr. Goulard: Way back, I have a feeling -- and I would have to check because I was there -- that the Minister of Justice of the Ukraine requested his Canadian counterpart for a Canadian contribution. Justice has no funds for that.

Senator Cools: I have a document here that, to me, says that it is the brainchild of Chief Justice Antonio Lamer.

Mr. Goulard: He was never involved with that one.

Senator Cools: You mean he does not know what he is saying?

Mr. Goulard: He always knows what he is saying. Chief Justice Lamer also receives requests from his counterparts for a Canadian contribution.

Senator Cools: Perhaps, Mr. Goulard, you are the ideal man to clarify this. The Senate had a bill before it two years ago that I had discussed with you. I had a meeting with you at the time about Bill C-42, which brought forth the questions of the so-called judges' international activities. It seems to me that the Senate very clearly spoke and amended the bill to limit judges' international activities to Madam Louise Arbour. I think that passed unanimously.

Immediately on the heels of that, there was a sizeable amount of information forthcoming, some of it from the chief justice. I can put these documents on the record. One of them is a CPAC interview that the chief justice himself gave. The other one is a Lawyers Weekly article. In both of those articles, the chief justice says very clearly that it was too bad that Parliament thought the way it did, that it was just unfortunate. However, it did not matter that much because where there was a will there was a way, and he was off to have lunch with you and Madam Labelle, and that the ball would be rolling very quickly to extend 40 or 50 judges across the world. Am I dreaming this, Mr. Goulard?

I am reading here from the Lawyers Weekly: "Mr. Goulard coordinates a growing number of highly successful international judicial coordination projects, many of which are financially supported by the Canadian International Development Agency." Then it continues, quoting Mr. Justice Lamer: "`Juges sans frontières'" or `Judges Without Borders' is how Chief Justice Antonio Lamer smilingly refers to his brainchild." That is from Lawyers Weekly, a very respectable lawyers' newspaper, dated August 29, 1997.

Mr. Goulard: What is your question?

Senator Cools: My questions are still far from the original questions: What are the amounts of money; how did the program come about; who are the judges that are going and what are they being paid? Those are the original questions. My questions have not changed.

Mr. Goulard: I am trying to get back to your first question as to why my office is involved and what is the minister's jurisdiction to grant me. The minister receiving a request from one of these countries, or his counterpart in one of these countries, could respond, "My job is to run the Canadian legal system. I have nothing to do with this. Knock somewhere else." Canada could say, "We have enough of our own problems, go somewhere else." However, I understand it to be a Canadian policy that we will contribute. I understand that it has been not only Madam McLellan but Allan Rock before her, and others before that, that they accept that there is a Canadian role, even a Canadian obligation to provide a Canadian input. That is not my business.

If there is a Canadian policy to help and our minister feels that it is part of her mandate to provide input, and if my office has a role to coordinate and I am given that role, then I will be happy to do that.

Mr. Goulard: I understand that. I am sure that you will be very happy.

You asked how many judges. I foresaw that question. We are now in the third year of the Ukraine project. Six judges went to Ukraine.

Senator Cools: Could you give us their names and the amounts it has cost?

Mr. Goulard: Yes, I can give you just about the total amount. I brought that. I should also note that we have had more than 100 Canadian judges giving their time in Canada, hosting visits, having Ukrainian judges sitting with them on the bench, walking them through the process, inviting them to their homes for the weekend.

Senator Cools: I want to ask about where they are going abroad. I am interested in a list of names of all the Canadian judges, since this program started with CIDA.

Mr. Goulard: Are you referring to the Ukrainian one?

Senator Cools: I am requesting a list of all the Canadian judges who have been funded by CIDA through your office to go abroad to do whatever it is they are going abroad to do.

Let me back up a moment then. I have before me here the testimony at this committee of the then-deputy minister of justice, George Thomson. I refer members to issue number 14 of the proceedings of this committee, October 23, 1996, in which Mr. Thomson was asked questions about CIDA and the judicial involvement of CIDA. In particular, a question was put to him, which is found at page 14, line 29. I will read the question into the record: "My special interest is the business of CIDA and the fusion that seems to be occurring between CIDA and the judiciary. In particular, I have a document entitled `Indicative List of Projects in Legal and Judicial Technical Assistance prepared for CIDA Legal/Judicial Roundtable,' April 19, 1996, at Meech Lake."

Honourable senators will know that Bill C-42 came to the Senate after that and that Bill C-42 was voted on in the Senate in October or November, 1996. Obviously, this is preparation leading up to Bill C-42.

I continue to question Mr. Thomson about what that meeting was about. Mr. Thomson said: "It was a workshop that CIDA held of academics, private NGOs, and a wide range of persons from across the country." Senator Cools: "Were there any judges present?" Mr. Thomson, the Deputy Minister responds: "Chief Justice Lamer was there at the beginning of the meeting to indicate the support of the judiciary in helping other countries to develop justice systems. I think he was the only judge present."

The questions continued and the debate continued. The particular document that I read, the interview that I read to you, very clearly says that it was Mr. Justice Lamer's brainchild. I am trying to find out how a project of that substance moves from being the brainchild of a judge to being publicly funded not by the Department of Justice, which cannot be done by law, but by CIDA. I am really looking for some enlightenment.

Mr. Goulard: When we talk of Chief Justice Lamer's brainchild, I am not sure what we are talking about because international cooperation involving judges from Canada and other countries existed long before the appointment of Chief Justice Lamer.

Senator Cools: I am only referring to an interview in which the chief justice says that. I am quoting his words. These are not my words.

Mr. Goulard: His brainchild was the concept of having judges, and he would prefer that it be retired judges, and he has expressed that, that it be retired or supernumerary judges using some of their free time to give to other countries. All of that work is done on an unpaid basis and usually on the judge's free time. His concept of having the "Juges sans frontières," as he calls it, is simply to have Canadian judges give some of their time, with outside funding paying for the costs involved. That could be CIDA. It could be the World Bank. It could be the Interamerican Development Bank. A number of other institutions fund judges going abroad to attend conferences, to give courses.

I am involved in one CIDA-funded cooperation program. I am aware that there are a number of others. One is administered by the University of Montreal. I know that judges have travelled through there.

Senator Bolduc: My own problem with all of that is why we use judges that are already paid by the Canadian government to work in Canada instead of using ex-judges or people who have experience. For me, that is a big problem because if we do that, those people are not working here, they are working outside Canada. The first thing we know, the Department of Justice will request that a number of judges on the federal establishment at the Treasury Board attend a position. That greatly troubles me because we have problems with national finance, as you know. We have a big problem that we are trying to solve. We made cuts in the civil service all over the place and, at the same time, we fund this program. I suspect that many judges now after 65 or 70 years of age can become supernumerary.

Mr. Goulard: It is after attaining age 65.

Senator Bolduc: Then they work half of their time. If they work half the time, they are fully paid for that. Maybe you could use those people to go outside but you are using people in a full exercise like we have here in some cases. One of them was a witness last night on TV, explaining his role in international affairs.

Senator Lavoie-Roux: What about Judge Arbour?

Senator Bolduc: That is a different situation. She is not there as a judge, but as a lawyer.

Mr. Goulard: She is not paid by us.

Senator Bolduc: I would like to come back to that situation. It seems to me that we should have a policy. I do not think that the Canadian people will accept that people who are paid judges here should work outside of the country.

Senator Cools: That is right.

Mr. Goulard: There might be exceptions but the judges that I have been involved with in the Ukrainian project and that I have observed in a few other projects are not giving months of their time. They are going for a very short duration to attend conferences to meet other judges. We have no judge in our project that is involved in the management of these or in the long-term placement.

Senator Bolduc: I understand that. However, it is tiring to go abroad for two weeks. Those people are not young people; they are people of my age. If you go to Europe or the Middle East for a couple of weeks, you need a week to recover from the trip going over, and a week to recover on your return. That two weeks turns into a month.

Mr. Goulard: I would like to answer the question on the names of judges. Five are federally appointed and one is provincially appointed. They went to a conference that lasted four or five days and a three-day seminar.

Senator Cools: Can you give us their names?

Mr. Goulard: Yes. Justice Sopinka, I think this was one of his last outings. He was at the conference in October 1997, along with Chief Justice Hewak and Justice Bracco. Chief Justice Hewak and Justice Bracco went because they are totally fluent in Ukrainian. Justice Lysyk went. I believe he speaks a bit of Ukrainian, but he was at that time Associate Director at the National Judicial Institute and it was in that capacity that he went, because an element of the process is trading judges.

Chief Justice Scott of Manitoba went as an expert in judicial conduct issues. He chaired the Canadian Judicial Council Committee that worked for four years on developing the book that came out last week, The Judicial Conduct Guidelines. They went in that capacity.

Senator Cools: What about Mr. Justice Strayer?

Mr. Goulard: I am not aware.

Senator Cools: I am told that he has gone to Hong Kong to write different things for three months at a time, or something like that. Again, you see, this is why your presence here is so important because one does not like to deal in conjecture. We are hoping that you will clarify some of these issues for us. I am under the impression, and if I am wrong I will be happy to be corrected, that Mr. Justice Strayer has been to Hong Kong on at least one occasion for several months writing some documents or something. I am not too sure. If you do not have the information now, perhaps you can give it to us later.

Mr. Goulard: I am not aware of that at all. I would be very surprised if it was several months because, up to recently, a judge needed to get an Order in Council to be away from his duties for more than a month. Now it is six months. I know this judge. I am not aware. I am not saying it did not happen. It might have happened before my time, so I am not aware.

Senator Cools: Could you find out for me if Mr. Justice Strayer has been away for an extended period of time?

Mr. Goulard: If I ask him, he might tell me that it is none of my business, and he would be right.

Senator Cools: Mr. Goulard, certainly you are not suggesting that I bring him here myself?

Mr. Goulard: No, I am not suggesting that, for sure.

Senator Cools: To the extent that you have this information, I think it is best to give it to us.

[Translation]

Senator Ferretti Barth: You stated that there is a selection committee for federal judges. The minister has the last word and must approve the committee's choice. A provincial and municipal court judge in Quebec can fulfil all the requirements to become a federal court judge. Are judges from other cultural communities selected according to their origin or according to their professional values? Is there a policy that states that a judge must be Italian, an other Greek and an other French? Is there a selection done among minority groups?

Mr. Goulard: A policy has been expressed by the current minister and by Mr. Rock in the past. The aim of the policy is to seek out and appoint an increasing number of representatives of minorities. For our part, we meet with minority groups. Last month, I was invited by the Canadian Association of Black Lawyers in Toronto. I discussed the process. The minister wants to see a larger number of representatives of minority groups. In the document that we give candidates we ask them to identify themselves as representatives of minority groups if they wish. Only 11 candidates out of nearly 500 identified themselves as being representatives of minority groups. That is very little and I'm aware that there are two individuals who did not state they were members of a minority but who in fact are.

One lady was Chinese and did not indicate that. During a meeting when I served as secretary, she was recommended for her qualifications but we did not mention that she was Chinese. I suggested that that be mentioned to the Minister and this person was appointed. If she chose not to identify herself as a representative of a minority group, can we do so? It's her right to do so or not and it's not up to us to do so.

Senator Ferretti Barth: Since the appointment of Judge Macerola 20 years ago, no other judge from an ethnic community had been appointed. There are many Quebec judges of Italian origin who have applied, but a person from another cultural group was appointed last time. Could you shed light on this? This is impossible because the Italian community is the third largest in Canada. I find that quite surprising.

I would like to know if it is true that in order to respond to these judges, we have to approach judges in Quebec. With regard to the CIDA program, the Minister of Finance seems preoccupied by the fact that a lot of money is being spent on this program. Is it entirely paid for by the Canadian government or by the countries that request Canadian judges in their jurisdiction? Do these countries contribute to supporting this exchange or does Canada foot the bill alone?

We provide brains, psychology and wisdom. Is this done very generously from the goodness of our hearts? Are we going to provide all these tools to countries that have some deficiencies in their institutions in this generous manner? Are these countries saying: Come and help us and we will share the expenses?

Mr. Goulard: In the contract we signed for the Ukraine program, we have yet to determine the Ukraine's contribution. They are to provide facilities and equipment for the three model courts. For the training programs, they must transport and house the judges. We take into account their contribution and we require it. As to whether our Canadian judges should devote their time exclusively to serving Canadians, that's a political issue. We could ask the same question about whether the RCMP, the Armed Forces or the Chief Electoral Officer should limit themselves to this country. I maintain that we have a duty to help the poor and those in countries that have a great need for assistance.

[English]

Senator Cools: However, this is a political matter. Sections 54, 55 and 56 of the Judges Act speak to it definitively. That is what the Parliament of Canada, particularly the Senate, spoke to expressly in the fall of 1996 when it essentially barred, or it thought it was barring, judges from doing this by limiting the sole exception by name to Madam Louise Arbour. It is a political matter. That is exactly the question. If it is a political matter as has been articulated by Parliament, how are these judges and your department and CIDA still continuing to do this, despite the fact that Parliament spoke?

[Translation]

Senator Ferretti Barth: How long can this exchange last? One, two, three months? How long do we allow judges to be outside the country for these exchanges?

Senator Bolduc: Right now it's six months I believe.

Mr. Goulard: The only one who had a six-month permission was Madam Justice Arbour. When I refer to six months, that is when a judge is sick.

Senator Bolduc: It used to be one month.

Mr. Goulard: This was a leave of absence for reasons of illness. Educational leave must be taken in Canada. Maternity leave is no longer considered sick leave. That was a recent decision. It was shameful that a judge had to take sick leave because she was pregnant. Now Chief Justice can grant leave for 10 months, but that has nothing to do with international exchanges. There is no leave granted for international purposes.

[English]

The Chairman: You were concerned about the cost of this. I truly believe that if we are going to have democracy spread throughout the world, this is the kind of thing we must undertake. Since the inception of this program, has there been an increase in the number of judges required in order to provide for this program?

Mr. Goulard: There has been no increase to our program, no.

The Chairman: There has been no increase in the number of judges?

Mr. Goulard: As far as I can see, there has been no increase because of the program. I think there has been an increase in demand for Canadian input in the re-democratization effort around the world, not only for judges -- in fact, mostly not for judges -- but for engineers, doctors, teachers and parliamentarians.

The Chairman: Has there been an increase in the number of judges?

Mr. Goulard: I do not think that there has been an increase in the number of judges involved.

The Chairman: Has there been an overall increase in the number of judges?

Mr. Goulard: Are you referring to judges who are participating?

The Chairman: No. I mean universally, for everything, have you increased the number of judges in Canada?

Mr. Goulard: You are speaking about the judges serving our courts then. There has been an increase at the federal level, but mostly because of the increase in supernumerary judges.

The Chairman: Do you want to define "supernumerary" for the record?

Mr. Goulard: A supernumerary judge is one who has attained what used to be the requirements for retirement, that is 65 years of age and 15 years of service. A judge who has attained that, the 65 and 15, can retire. Now they can opt to stay on the job, work at least half time with full pay. We have gone through the mathematics of this a number of times. The country is getting the half-time work for one-third of the money, because if the judge retired, he gets two-thirds of his salary. Looking only at that, I think it is still a paying proposition.

The fact is that for a large number of those judges, especially in the larger provinces, in the Courts of Appeal of Ontario, Quebec and B.C., a judge becomes supernumerary and simply does not change his hours of work, or basically not. I think it is still financially a good thing.

When a judge becomes supernumerary, the position is open, so he or she can be replaced. As a result of that, our numbers are increasing. When I joined my office four years ago, we were at about 900 and now we are roughly at 1,000. I think it was 1,001 at the start of the month.

Senator Bolduc: How many are supernumerary?

Mr. Goulard: Two hundred, or about 25 per cent, and about 20 per cent are women, which is usually the next question. The only way that the number of judges can be increased is by amending the Judges Act. The numbers are fixed there. We have just had a recent increase to provide a few additional Court of Appeal judges for Ontario and B.C., I believe, and also an additional number for unified family courts. I hope I have answered your question.

The Chairman: There, it is the case that our judges do travel, but you have said that it does not take away from the workload they currently carry. There has been no increase as a result of this demand on their time.

Mr. Goulard: That is what I am saying, yes. Also, I have a commitment with chief justices, both federally and provincially, that I will never contact a judge personally without going through the Chief Justice. The demands are usually to attend or give a conference. These demands come from the World Bank or from La francophonie in Paris. If they want a judge to give a conference on a topic, I will approach a chief justice. If it is somebody who must speak French, I will approach the chief justices. This usually costs our country nothing, at least nothing from my office. Minister Rock gave me approval, as long as I did not touch my operational funding for this purpose. The money must come from other sources.

[Translation]

Senator Bolduc: You have judges who take part in sessions in England, at Cambridge or Oxford. They have training sessions or law sessions. Do you pay the expenses? Are there many judges who participate in this?

Mr. Goulard: The Cambridge program takes place every two years. In alternate years, the study days take place either in Strasbourg or in the United States. In 1998 there was no session. The number of federally-appointed judges is determined by the Canadian Judicial Council.

Senator Bolduc: Approximately how many are there?

Mr. Goulard: About 60 obtained permission to go.

Senator Bolduc: About 5 per cent?

Mr. Goulard: The Judicial Council established the number of participants by province. After that, the Chief Justice of every jurisdiction makes a decision. It is a program where we invite the cream of the crop of speakers, the chief justices of these countries. In Strasbourg two years ago, the topic was bioethics. Canadian doctors and lawyers also participated.

Senator Bolduc: Do the judges who take part in these conferences or sessions have papers to present or are they simply members of the audience?

Mr. Goulard: Some of them have papers to deliver. The majority are there as participants.

Senator Bolduc: Do the same individuals tend to go back or is there a rotation?

Mr. Goulard: There is a rotation and we pay the expenses.

[English]

Senator Cools: I have one or two very quick questions just to clarify. For the record, the CPAC interview with Mr. Justice Lamer that I was referring to and quoting from occurred on December 9, 1996. I am quoting verbatim, Mr. Goulard. Mr. Justice Lamer said: "I'm speaking to Madam Labelle. As I said, I'm having lunch with her today, then I will be speaking to the Commissioner of Judicial Affairs Friday. I'll have lunch with him Friday and I think we'll get the ball rolling very soon."

Earlier in the text, he says that where there is a will, there is a way. He says, "... then I think we're going to go through CIDA" and "I will be very proud to see 20, 30, 40 judges of Canada," et cetera.

Then there is another statement I call to the senators' attention. This is a letter from Mr. Justice Lamer to Allan Rock dated November 6, 1996, in respect of Bill C-42 where it says, "May I add with respect to the proposals in Bill C-42 contained in ss. 56.1(1) that it is extremely unfortunate that the Senators objecting to this general amendment have completely misunderstood its purpose, at least from the perspective of the Canadian Judicial Council." Extraordinary.

You said you were approached in 1994. What are the total amounts? I have gone through the estimates and it is not always entirely clear, but perhaps you can help us to clarify the matter. Since 1994, what is the exact dollar amount of money that your department or Judicial Affairs has received from CIDA in respect of this program?

Mr. Goulard: The total agreement is just about $2 million.

Senator Cools: Is that per year?

Mr. Goulard: No, it is for three years. The same budget will spread into a fourth year.

Senator Cools: It is $2 million from 1994, for how many years?

Mr. Goulard: It will be four years.

Senator Cools: That is for four years. That should be coming to an end now, that $2 million.

Mr. Goulard: It will end in June 2000. The contract was signed in 1996.

Senator Cools: When in 1996 was this contract signed?

Mr. Goulard: I do not have the contract here.

Senator Cools: Can you let me have that?

Mr. Goulard: Yes.

Senator Cools: From 1996, you have received or been allocated $2 million for the next four years. How much is that per year? Is it an even amount?

Mr. Goulard: It is roughly half a million dollars.

Senator Cools: Is it an even amount per annum?

Mr. Goulard: No, it varies, based on the activities.

Senator Cools: Could I have from you a breakdown of how that money is spent annually?

Mr. Goulard: Surely, yes.

Senator Cools: Here, just the estimate is given. The final point I would like to make is that I think all of us really and genuinely believe that Canada has an important role to play internationally in the restoration or sometimes in the achievement of democracy. However, the achievement of democracy is a political purpose and it is not one that I believe judges should be involved in. That is a private opinion.

[Translation]

Senator Lavoie-Roux: I often hear that the possibility of being a supernumerary judge is considered a privilege. Supernumerary judges increase their income because they are retired and receive additional emoluments.

Mr. Goulard: Their full salary is maintained.

Senator Lavoie-Roux: They earn their full salary.

Mr. Goulard: They must work at least half-time and most continue to work full time.

Senator Lavoie-Roux: What is the rationale for being supernumerary?

Mr. Goulard: There are retired judges who are still fully productive.

Senator Lavoie-Roux: They could do some volunteer work for some worthy causes.

Mr. Goulard: There are some who do volunteer work.

Senator Lavoie-Roux: The notion of a supernumerary judge is greatly criticized.

Mr. Goulard: Perhaps because it is not well understood. Perhaps the judiciary and my office have been remised in their duty to provide information.

Senator Lavoie-Roux: I am ill-informed.

Mr. Goulard: There is very little understanding of our judiciary and that is very unfortunate.

Senator Lavoie-Roux: Do you intend to correct that?

[English]

The Chairman: It is like the Senate.

Mr. Goulard: Yes exactly.

The Chairman: They do a poor job of communicating.

Mr. Goulard: Having had a chance now to share and compare with people from a number of countries because of this involvement, I have no doubt that we have the best democratic institutions that can be found anywhere.

[Translation]

Senator Lavoie-Roux: I do not have a problem with that point; my problem is with what this costs us. Judges cost an awful lot of money and they are always being given more privileges. Bill C-42 that we recently passed gave judges a pay increase.

Mr. Goulard: If we want to have the cream of the crop --

Senator Lavoie-Roux: Where is the cream? There are good judges and judges who are less good. There are good senators and senators who are less good. That is life. I am in favour of paying them properly, but when you pile privilege on top of privilege, there is something wrong with that picture. It is judges who are eroding democracy at that point. What applies to them does not apply elsewhere.

[English]

The Chairman: Thank you, sir, for attending.

Mr. Goulard: I thank you for the invitation. I would welcome a chance to share issues with you from time to time. I would like to have the occasion to come and bring you my problems.

Senator Cools: People are not shy to bring us problems.

The Chairman: We appreciate your appearing today because the knowledge is a very formidable weapon. We now know a lot more than we did about what you do and what our judges do around the world, which is very beneficial.

Just briefly, we will not deal with the report that is in your hands today. We will deal with it when we come back in February. Should Parliament prorogue, we can bring all our work and this report back without difficulty. That will not preclude us from completing it. We decided that rather than try to rush it through now, it would be better if we gave it the fullness of time so that we can devote the proper amount of time to it. Is that agreeable?

Senator Cools: I think that is an excellent idea.

Senator Lavoie-Roux: We are agreeing, Mr. Chairman.

Senator Cools: Do you need a vote for that, Mr. Chairman?

The Chairman: No. We have noted for the record a motion for adjournment.

Senator Cools: So moved.

The committee adjourned.