Proceedings of the Standing Senate Committee on
Legal and
Constitutional Affairs
Issue 36 - Evidence
OTTAWA, Wednesday, October 21, 1998
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-37, to amend the Judges Act and to make consequential amendments to other Acts, met this day at 3:38 p.m. to give consideration to the bill.
Senator Lorna Milne (Chairman) in the Chair.
[English]
The Chairman: Today, we have with us representatives from the Department of Justice. Before we proceed to hear from them, I should like to bring the committee up to date on some of the things that have been happening.
I have been told that this is probably improper to do; however, some of us have been having some very long and detailed discussions with the minister about the concerns members of this committee have with Bill C-37. The minister has been listening to us. Under a certain amount of pressure, she listened some more to us. One of the Liberal members of the committee will move some amendments to the bill when we come to our clause-by-clause study of the bill.
In order that everyone around the table knows what we are talking about, I will ask Senator Joyal to outline the amendments that he intends to move.
Senator Joyal: Madam Chairman, the first group of amendments would delete clauses 1, 9, 10 and 11 of the bill. These clauses deal with matters concerning pensions and, in particular, the definition of surviving spouse in clause 1 of the bill. Clauses 9, 10 and 11 relate to the rearrangement of the pension plan for judges.
As you know, Madam Chairman, there have been many questions about whether or not these issues infringe upon provincial jurisdiction in terms of pension, marriage, status of both spouses, and so forth. We have suggested that those topics would be better dealt with when the commission is formed. The commission could make a report and a recommendation; but it would not be in the form of legislation. It would be merely in the form of compensation. Therefore, there would be no legal provisions in the bill as such for that, but the commission would not be prevented, in forthcoming reports, from dealing with the reform of judges' pensions.
These amendments would clear up all the questions that members on both sides have with the bill. They deal, first, with the definition of surviving spouse. Second, they deal with the constitutional issue related to the status of the federal government intervening into legislation concerning marriage benefits. We have been listening to witnesses who have raised issues related to that matter. I think there is a fair sentiment among the members that this is not totally clear.
Instead of doing something that we feel might raise questions, it is better to set it aside and leave the commission to deal with it in an administrative way more than a legislative way.
The second group of amendments deals with the compensation commission and the scope of its mandate. Our colleagues on the committee have understood that we have raised issues about the scope of investigation of the commission, in the form of criteria. We have heard Mr. Scott on that subject. Some of us around the table have been preoccupied with the idea that the mandate of the commission to evaluate the compensation was so broad that there would be no limits in terms of defining what kind of proposal can be put forward. Since the minister and the Parliament of Canada have to respond to the report of the commission, I think that to give to the commission some criteria which delineates the scope of their mandate in terms of you how far they can go in making suggestions is sound policy.
Senator Bryden tabled a summary of criteria that are applied in various provinces. We know that in some other countries there are other criteria. We would come forward with a set of criteria that are not new but which would give the commission some indication of the principles that it should be following in terms of determining what is fair compensation.
Even in its judgment on the P.E.I. Reference, the Supreme Court justices mentioned that there could be criteria. They even mention cost of living and other criteria of the like. In other words, even in the P.E.I. Reference judgment, the Supreme Court of Canada recognized that criteria might be welcome in determining the compensation system for the commission.
There will be another amendment dealing with the time within which the report of the commission should be responded to by the Minister of Justice. However, it is more of a technical element than anything else.
For the time being, those are the amendments that I would like to bring forward for consideration by the members of this committee.
Senator Nolin: Madam Chairman, I support totally what my colleague Senator Joyal has proposed. We must add that the courts can now be asked to determine what is a surviving spouse. That is already in the act. Thus, they can follow the decision of the Ontario appeal court and include same-sex spouse. It would be totally within their power to do that. We are not limiting the power of the court to define that. We are just saying that we do not want to get into that. There are some areas about which we are not sure. I totally support the idea of deleting some of those clauses.
Senator Beaudoin: Senator Joyal, are the proposed amendments coming from one member of the committee or are they government amendments?
Senator Joyal: As Senator Beaudoin will recall, the proposed amendments are related to issues that have been raised around this table in the course of questioning the experts from whom we have heard. At this point in time, I feel there is a fair appreciation among government members that they reflect the preoccupations that have been expressed by members on both sides of the table. I have consulted our colleagues. At this point, we feel these amendments could be made acceptable if the committee judged it appropriate to endorse them.
Senator Beaudoin: I raise the question because I am one of those who raised the point right from the beginning. I think that we have the power to legislate in respect of the surviving spouse. However, I agree that many have raised the problem of constitutionality with this measure. If we accept them, and I probably will because I do not have much of a problem with them, it means that we will rely on the family law as it exists in many provinces. It may, perhaps, vary from one province to another. I do not have any problem with that. This is what federalism is about.
I thought this bill was to harmonize the situation. If we accept the amendments, then there will be no harmonization. That will be my first question to the deputy minister.
I want to know exactly where we are going. I am quite open to any kind of amendment, if it will solve the problem. I know that some of our witnesses have said that the bill is encroaching on section 92(13), as well as family law, which is a debatable argument.
Senator Joyal feels that it would be better to go ahead with those amendments than to leave some of the problems unresolved, constitutionally speaking. However, as I have said, since we have the direct power under section 100, I think that we may occupy the field. If we choose not to occupy the field, then of course the provinces have already occupied that field.
Constitutionally speaking, both solutions are quite acceptable to me.
Senator Nolin: I think it is more than a matter of constitutionality. We were asked to establish uniformity among federal statutes on pension schemes that are different from what is actually done in the provinces under family law. For me, that was the big problem. What you are proposing is saving the status quo. Let us study that more in depth with the commission.
Senator Beaudoin: I would add only one other point. The deputy minister will tell us that it is not judges who have raised questions concerning the definition of surviving spouse but the Department of Justice who is interested in doing that with a view to harmonizing the situation.
[Translation]
We've cleared off the table, we agree on that, and now we have to know what's going to be done after that.
[English]
Senator Joyal: I think it is fair for us to have those proposals on the table without asking the witnesses and the experts from the Department of Justice to pronounce on the merits of the amendment. They can, of course, pronounce on the legal aspects of it. It is fair that we have this discussion at this point, while they are here, and save our privilege to vote to accept them or not. As members of this committee, that is our mandate and responsibility.
Senator Cools: I should like to articulate my perception here. The procedure that we are following is somewhat unusual. I understand that changes occur and precedents are set. However, to my mind, the discussion to date seems to be one that usually would not be conducted in the presence of officials from the department.
What we have before us is not a proposal to move amendments. Senator Joyal is telling us that he is intending to do that, which I find quite unusual. If Senator Joyal has those intentions, perhaps he should act on those intentions and move them in the form of motions immediately.
The Chairman: That is, of course, up to Senator Joyal. Normally, the only time we vote in this committee is when we are doing a clause-by-clause examination. It has been a standing rule of this committee that we wait until we do clause by clause, at which point we vote on everything.
Senator Cools: A motion can be made at any point in the committee's considerations. I was simply trying to be clear as to the exact format we are following here, because it is a little unclear to me. I think we are dealing with something like a notice of intention to do something.
Having said that, it is very difficult to speak to something that is not really before us. Senator Joyal has not properly moved his motion but has just told us he has an intention to do something, so I would like to speak to his intention to do something. I am not a member of this committee, as we know, but I would like to say that the consensus that has been articulated on the substance of some of those amendments is far from clear. I would like the record here to indicate that what we have before us is Senator Joyal's signal of an intention to move certain amendments, but the actual gathering of consensus is still to occur. Granted, when he moves it formally, that process will happen.
I should also like to say that I am quite happy to support the section of Senator Joyal's intentions -- this is a novel situation -- which speaks to the government's willingness to accept the deletion of what I would call the double spouse, as it has been reported in the media. Undoubtedly, there are media present here. What is unusual about this process that we are following is that this will be reported in the news forthwith, I am perfectly confident, since someone has signalled the intention to do this. Since it will be reported, I think we should be conducting ourselves as though it will be reported and to indicate that, in point of fact, Senator Joyal is committing the government.
The Chairman: Senator Joyal is not committing the government. These are not government amendments.
Senator Cools: He said they are being supported.
The Chairman: These are being discussed with the government, but these are the senator's amendments.
Senator Cools: However, he is committing the government to them. He has said that the government is committed to them.
Senator Nolin: No. We will be asking for that.
Senator Cools: They cannot speak to the business of the government's commitment to amendments that senators make. They can only comment on public policy.
Senator Beaudoin: We understand what is happening. There is no problem. We have already answered a question. If these amendments are accepted, there would be no reference in the statute to the surviving spouse problem, if it is a problem. If there were no reference to it, we would rely on the law as it is. We have the right to do that. That is exactly what will happen if we say "yes" to those amendments, in my opinion.
Senator Cools: My final point is that I can support wholeheartedly the deletion of the double spousal clauses, but I reserve the right to comment on Senator Joyal's other initiatives.
Senator Joyal, I understand, has done a fair amount of work on this. I am curious. Is the government bringing amendments? Will Senator Moore be moving amendments as well, since our custom usually is that amendments are made by the government sponsor? Can we anticipate an equivalent set of amendments from Senator Moore, the government sponsor on this bill, or is Senator Joyal replacing Senator Moore as government sponsor?
The Chairman: Senator Moore is the government sponsor of this bill. He will be moving the clauses of the bill when we come to clause-by-clause study, and Senator Joyal will be making Senate amendments to them.
Senator Cools: He will be making some motions. I understand.
The Chairman: In response to the comment about this being an unusual discussion, in that it is taking place in front of representatives of the department, that all the proceedings of this committee are public. Hence, in effect, everything that we have said all the way through is in front of members of the department.
I believe that members of the committee received, as requested, information related to judicial remuneration in Australia and the need for judicial compensation commissions.
We have with us today Mr. Morris Rosenberg, Ms Judith Bellis, and Mr. Ian Mackenzie. Welcome to the committee. The floor is yours.
Mr. Morris Rosenberg, Deputy Minister and Deputy Attorney General, Department of Justice: I do not have a formal opening statement, but I would perhaps respond to some of the remarks that were made in the preceding discussion.
First, just to be clear, it has been our position on the constitutionality that the federal government does have full constitutional jurisdiction incident to its responsibilities in these matters to set a pension regime. We would take issue with the view that that is a provincial jurisdiction.
Second, Senator Beaudoin is right that one of the primary motivations was to harmonize the regime for judges with some of the other federal regimes, including that of pensions for members of the House of Commons and the Senate. However, I note that the minister is aware of a number of concerns that have arisen in relation to survivor benefits for common-law spouses. We are also aware that an option for responding to these concerns would be to remove these provisions and refer them to the next judicial compensation and benefits commission.
When the minister was here, she indicated that the policy in the bill and reflected in the current provisions was chosen to ensure consistency with other federal pension legislation. That choice, we think, was a reasonable and considered policy choice. However, a number of substantive issues have been raised, not only division of powers and constitutional issues but also other equity issues. An example of this is whether the one-year cohabitation period in federal legislation is appropriate as opposed to some of the longer periods found in some provincial legislation. There are enough issues of substance raised that I am sure the government would give serious consideration to the proposed amendments relating to common-law spouses and perhaps asking the commission to consider them more fully.
The second proposed amendment would include statutory criteria to reinforce the objectivity of the mandate of the new commission.
[Translation]
Senator Nolin: Have you examined the testimony given before the committee?
Mr. Rosenberg: My officials examined the testimony.
Senator Nolin: More specifically that of Ms. Thompson, the lawyer for the region of Ottawa, when she appeared two weeks ago. She practices family law. She said that she sometimes represents judges or judges' spouses in cases leading to the divorce of said spouses. She presented a calculation method in which the judge's future pension was considered in calculating the family assets in the case in point. My question is whether you have read that testimony and if you agree with it.
Mr. Rosenberg: I did not read that testimony but I'll ask Mr. Mackenzie to answer your question.
[English]
Mr. Mackenzie: She testified that the annuity gains value during the life of the judge.
Senator Nolin: Yes, she was saying that if the judge were 50 years old, an estimation of life expectancy would be made. An actuary would calculate the future value of that pension. The capital value would be also be calculated, including the family property. Do you agree with that testimony?
Mr. Mackenzie: Yes, that reflects provincial family law principles. It addresses the assets of any citizen, including pensions.
Senator Nolin: After hearing that testimony, I studied that issue as it relates to Quebec. There are two relevant examples: one from the appeal court and the other from the superior court of Quebec. Each ruling says that the federal judges' pension scheme is not a pension system. The judges' pensions cannot be annualised. A judge only has the right to receive a cheque once a month during his or her lifetime. Upon death, the surviving spouse will receive a cheque based on the calculation as per the act.
Mr. Mackenzie: A pension is different from an annuity. There is no partial pension for a judge. Those are issues a commission would want to examine. That is, it would have to be determined how the provincial law would apply to annuities.
Senator Beaudoin: My concern is the harmonization. The Parliament has the power to do that under section 100. The idea of the surviving spouse does not come from the judges; it comes from the Department of Justice or the Minister of Justice. If we approve those proposed amendments, it means that we rely on the law as it is -- without any harmonization. This choice has some legal consequences. The parliamentarians and the judges would be under different pension regimes. Is there a reason for this difference?
Mr. Rosenberg: Some comparability of compensation regimes, including pensions, may be desirable for people similarly situated in public positions. That was a motivation in raising these changes. We could accept the bill as presented by the government and accept that no law is perfect.
The other choice is to take more time and refer this to the first pay and benefits commission for a more detailed set of change recommendations.
Senator Beaudoin: Yes, but if we do not go in the direction of harmonization and we accept this proposed amendment, we would need to rely on the existing provincial law. The judges would provide interpretation and it would differ from one province to another. If the public thinks that Parliament should go ahead and rely on the law as it is now, there may be a good reason to accept those amendments. How great would the variations be from one province to another if we do not harmonize?
Mr. Mackenzie: The easy answer is that only time will tell. However, I think the current status quo will remain for now, which will mean that the married spouse throughout Canada will be entitled to the surviving annuity. To date, provincial law not impinged on that right. I do not know how abandoning the status quo will change things in the near future.
Senator Beaudoin: Will it not raise some variations? Quebec has a Civil Code; the other provinces have statutes based on the common law. There may be some differences from one province to another. I do not claim expertise in family law, but since the judges have not requested harmonization, perhaps there is no need for it.
Again, I return to my basic question. The deputy minister summarized this very clearly: namely, that legislators, parliamentarians and civil servants have a harmonized system. Judges may or may not have a harmonized system. Which is the best? It is purely political but, legally speaking, the law will be interpreted as written. The judges did not ask for anything. I am surprised at that. They did not ask for harmonization, did they?
Ms Judith Bellis, Senior Counsel, Head Judicial Affairs Unit, Department of Justice: The specifics of how the Scott recommendation would be implemented was not elaborated upon. That is why we had so much discussion about it. Mr. Scott himself admitted that he was not entirely clear on what the phrase "in legally appropriate circumstances" meant in terms of the common-law spousal entitlement.
Senator Joyal referred to the fact that a common-law spouse of a judge could claim now, even in the absence of these provisions, an entitlement under the Charter. In that case, the variation that you talk about will likely arise -- at least in the interim -- not on the basis that some common-law spouses in some provinces would not have an entitlement while they might in others but, rather, on the basis that the three-year entitlement period in Ontario might be the measure that would be used by the court in interpreting what constitutes a common-law spouse for the purposes of that particular application. However, in a province where the period was only one year, the court might use the provincial standard as the measure in interpreting the Charter entitlement. You would have that potential variation in terms of lack of harmonization. Others would say that it might be appropriate, because there are differences of entitlement for other citizens, province by province.
As you have said, the deputy minister has indicated that those are political choices. That would be the kind of variation that would potentially exist. It may be that that would be an important issue that a commission would consider -- namely, which is the right policy option in this context? Furthermore, is it more important to have local circumstances reflected in making those choices or do we want the harmonization with other federal pension plans?
Senator Beaudoin: I am trying to be sure of this. Some people say, "This is very difficult. Parliament is not courageous enough. Leave it to the courts. The courts are strong legislators." The courts are very strong, but I have no problem with that because they interpret the Constitution. They are the guardians of the Constitution. But Parliament also has that role. We must take our responsibility seriously here. If it is better to harmonize, I will vote for harmonization. If it does not matter, then I may accept the alternative.
Mr. Rosenberg: If could I recast the choice slightly, I do not think it is a choice between harmonization and no harmonization. Regarding the proposal for amendment and the idea of asking the commission to look at this matter, the commission has a mandate to look at this matter. A recommendation to the government will be forthcoming on a regime to deal with pension benefits and all the issues that we have talked about. The government is not bound to implement that regime word for word, but in the normal course, would be expected to at least provide a response and implement something, or give a reason for not implementing it.
The choice is between harmonization now and the likelihood of harmonization after further study. Regarding "further study," it was felt that as a result of some of the issues that were raised in this committee -- and I do not want to put words into Senator Joyal's mouth -- there were enough of them that should go back for further consideration. However, at the end of the day, we will still be looking for a harmonized regime. It is not, harmonized versus not harmonized. There will be a temporary period during which this study takes place where, necessarily, there will be differences of interpretation as litigation that may occur -- and we do not know if it will occur -- winds its way up through the provincial courts. The intention is that within the next few years there will be a harmonized regime.
Senator Beaudoin: Thank you for that answer. It helps me.
Senator Cools: I wish to thank the witnesses for their clarification. I especially thank Ms Bellis for reminding us of the exact wording of the Scott commission. Mr. Scott talked about making a recommendation on the issue of common-law spouses in legally appropriate circumstances.
I was struck by previous statements made here by Senator Joyal where he said that we cannot refer anything to the commission but the commission should be allowed to go back to the drawing board to study the issue of pensions. I find this most interesting because the recommendation came forth from the commission in the first place.
The Scott commission, which cost so many hundreds of thousands of dollars, came forth with a recommendation. Yet we still arrived at this particular spot where we are today. The commission could not come up with sufficient clarity on what legislative action could be taken. What is the evidence to support the view that putting the same question to the newly renovated commission will bring forth a better answer?
I ask that question because we have heard, again and again, that we need the new judicial compensation commission because the triennial one has not worked. We have just demonstrated that the triennial one has not worked in this respect. Why do we believe that if we were to refer the very same subject matter to the new commission that we would get a different and better result? In other words, what is the magic that will occupy the minds of the new commissioners that will result in a better and a clearer recommendation than the one that put us into the current mess where we are essentially deleting the clauses? Could you clarify my conundrum?
Ms Bellis: There is this aspect of the common-law entitlement that requires clarification -- that is, the context where there are two surviving spouses. It was an important detail, but a detail that the Scott commission had not turned its mind to and I cannot speak to why it did not do that.
I can assure you that the discussions and vigorous debates that have taken place around this table -- and the input of the many witnesses who have contributed to our understanding of the complexity of the issues and the concerns -- will be the very kind of information and clarity that the government will be almost certainly providing in its submissions to the next commission.
We have had the benefit of this committee's refinement of the issues, of the options, of the concerns, of the way in which those matters need to be reflected on in a little more detail. I dare say that this experience will be salutary for the next commission, as well as for the Department of Justice as we prepare -- as I expect my colleague Iain Mackenzie and I will be doing -- the department's submission for the next triennial or the next commission.
Senator Cools: In support of those senators who have done a lot of work on this particular issue, I would say that the judges' interests were better served by the senators' study in terms of fleshing out the difficulties, than by the work of this particular commission.
As you say, the legislation came forth. We have heard repeatedly that the government ignores the triennial commissions and that is why we need the new commission. Yet the Scott commission brought forth its report and we have it before us. The government brought legislation forward. Both of them, quite frankly, failed.
I am not convinced at all that the enhanced judicial benefits compensation commission is a superior choice. A body of evidence was put forth to us indicating that the old triennial commission was fine and needed no tampering with. Witnesses talked about it in the terms: If it ain't broke, why fix it?
That is not my term but we hear it a lot. I am curious why all of a sudden we will have great confidence in the very same process. If we send it back, will we get a better result?
In point of fact, the best result that has been suggested so far is the study around this table. I would submit to all that the payment of the judges and the spouses and all of the interested persons would have been better served if Parliament had done a study like this before the bill came forward. I submit that to you because I do not have confidence that the second go-round will bring forth a better or clearer set of recommendations.
The Chairman: Senator Cools, thank you for that. I am not sure whether we are complimented or not, but this is truly another example of the Senate doing the sort of work it is supposed to do.
Senator Cools: Let us keep it in the Senate then. Perhaps we should go forward, and if I can make a motion on this committee, I will be happy to do so. If you remember, when we went back to Bill C-16, we did not get that little sentence into the report, but perhaps our report could go forward with an urging from the Senate to do a proper consideration of some of these very important judicial questions. Obviously, if this experience is showing us anything, it is showing that these issues are commanding parliamentary attention.
The Chairman: I thank you for that, Senator Cools. I will not take it as a motion at this point because we will do all this when we come to clause-by-clause consideration tomorrow morning.
Are there any further questions of our witnesses?
Senator Cools: I have more questions. There is so much talk of these commissions and judicial councils and Canadian conferences. So much material is written. Many of our members do not know that much of this information is the hardest information in the world to put one's hands on.
For example, Professor Peter Hogg, in a legal opinion submitted to the joint benefits committee of the Canadian Judicial Council and the Canadian Judges Conference, stated:
... the inaction by Parliament is insufficient participation in the process to enable one to say that the salaries have been fixed by the Parliament. It seems more natural to say that the salaries have been fixed by the tribunal, and left undisturbed by the Parliament.
Perhaps witnesses here could help me. I have been trying to get a copy of this legal opinion. My secretary called the conference and the judicial council. She was told that these are private opinions and are unavailable. Do you have a copy of this opinion or could you tell us how we could possibly, as members of Parliament, short of being a little drastic, obtain copies of these opinions?
The Chairman: Senator Cools, our researcher has just volunteered to try to find us a copy of that.
Senator Cools: I expect she will be told the same thing -- that it is a private opinion between lawyers and is bound by solicitor-client privilege.
The issue of judicial compensation commissions has been a live one for many years. We have not gone into it here, but many of the discussions on the commissions have also been accompanied by discussion on a negative resolution. Many individuals believe that not only should we have commissions, but that the recommendations of the commissions should be binding on Parliament. These are live discussion in this country.
Senator Beaudoin: We know that.
Senator Cools: Well, fine. Mr. David Scott is an eminent and bright man. He makes some reference to the concept of the negative resolution. I had hoped that we would have called Professor Peter Hogg before this committee because his is another preeminent mind on these issues.
How can Parliament do its job properly if we cannot get these opinions and these papers? We should be able to take these documents into our consideration. I was told that a request to release the document would have to go forward to the chief justice and to the executive of the Canadian Judicial Council. My request went forward and was declined. Yet that document is partially quoted in Martin Friedland's book, A Place Apart: Judicial Independence and Accountability in Canada.
What preconditions or criteria are being set in these exchanges so members of Parliament can see these documents? So much of the dialogue seems to go on in secret.
Mr. Rosenberg: First, we do not have a copy of Professor Hogg's opinion. To the extent that that opinion is excerpted in a submission which may have been made by the Canadian Judicial Council to the triennial commission, that part of it would be public, as far as I understand. It is legitimate for interest groups, when appearing before parliamentary committees or inquiries, to seek counsel. As far as I know, unless there is a waiver, the rule of solicitor-client privilege would apply.
It is the public submission of those groups to which you and everyone should have access. You raise a more fundamental question and I am not in a position to address it. You are saying that not only should you have access to the public submissions but also to the legal advice provided to those groups.
The Chairman: Senator Cools, if this is a matter of client and lawyer confidentiality, there is no way in which anyone can get a copy for you. Our researcher has volunteered to try to find it.
Senator Cools: I would support that. I would ask the researcher to go forward on behalf of this committee to obtain a copy of that legal opinion.
Senator Bryden: I do not think the committee is requesting it. She can make the request on your behalf.
Senator Cools: She usually puts requests on behalf of the committee and not on the behalf of individual senators.
The Chairman: I have just directed her to attempt to find this. If it is available, then you will have a copy of it. If it is a matter of solicitor-client privilege, then you will not have a copy of it.
Senator Cools: I do have many other questions, including some with regard to the rule of 80, but I understand we must adjourn at 4:30. I have many other pressing questions that I will just have to raise when the opportunity arises.
I want to know more about the legal origins of the rule of 80 proposed in Bill C-37. It is different from the rule of 80 proposed in Martin Friedland's document prepared for the Canadian Judicial Council. It seems there are many different rules of 80.
The Chairman: There being no further questions, I thank the witnesses.
This committee stands adjourned until 10:45 tomorrow morning when we will proceed with clause-by-clause study.
The committee adjourned.