Proceedings of the Standing Senate Committee on
Legal and
Constitutional Affairs
Issue 37 - Evidence
OTTAWA, Thursday, October 22, 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 11:05 a.m. to give consideration to the bill.
Senator Lorna Milne (Chairman) in the Chair.
[English]
The Chairman: This meeting of the Standing Senate Committee on Legal and Constitutional Affairs is now in session. We will proceed to clause-by-clause consideration of Bill C-37, to amend the Judges Act and to make consequential amendments to other acts.
Senator Moore: Honourable senators, I move that the committee complete clause-by-clause consideration of Bill C-37.
Senator Cools: Before we move to clause-by-clause consideration, I wish to raise a question of privilege.
Senator Grafstein: To be fair, Senator Cools did declare her intention in advance of the motion. I would hope that Senator Moore could withhold his motion so that Senator Cools has an opportunity to make her statement.
The Chairman: That is quite right.
Senator Cools, the floor is yours.
Senator Cools: Thank you for your consideration. In any event, it has always been my understanding that questions of privilege take precedence.
We had an interesting situation yesterday where, as a committee, we engaged in some unusual methodology. In hearing from Department of Justice officials, certain senators indicated their intention to bring forward motions. The content and intent of the motions were worthy. However, I questioned the procedural technique that was being used. I have never really encountered a situation where there is a public discussion between department officials and members about their intentions to bring certain motions.
I will agree with the motions when they are actually brought forth.
Yesterday, we had a discussion, without the motion, to discuss the subject matter being before us. Those questions were raised briefly and not as sufficiently as I would have liked because I did not want to resort to the technique of formally making a point of order or any more strenuous procedural technique. I thought the appeal to common sense and to our customs would have prevailed.
My concern about the techniques used yesterday has been heightened. Information has come into my possession that many of the interested judges -- those who would be affected by these provisions -- have known for quite some time that these clauses -- what I have learned to call the "spousal clauses" -- will be deleted.
As far as I am concerned, when one has had a political victory, one never does complain. I am pleased that reason, common sense, and judiciousness have prevailed and that certain individuals have recognized that these clauses were indeed very questionable and suspicious, not to mention embarrassing, and that they were sadly in need of amendment. I am also pleased that, after several weeks of effort, the minister has finally conceded that something was very wrong and that she herself was prepared to accept changes, mainly the deletion of those clauses from Bill C-37.
However, having said that, I believe that some "impropriety", and perhaps that is not the appropriate word, but a less-than- parliamentary occurrence has taken place. That, I believe, should be brought to the attention of members of this committee. To me, it is most distressing and vexing that certain interested judges and other interested parties will have information about the deletion or amendment of these clauses far in advance of the members of the Senate themselves knowing, or far in advance of any formal, procedural, or parliamentary activity to implement those wishes.
As I said before, this is not the first time that I have worked on committees and encountered this situation. For example, last year before our committee reached its clause-by-clause consideration of Bill C-41, certain persons at the Department of Justice, or whoever, had already put certain information into the public domain.
Let me be clear so no one would, for a moment, suggest that I am opposed to freedom of the press: I am a great believer in freedom of the press. My concern is that this information has been made available to interested judges and that there are currently separation agreements, and whatever other agreements being entered into, based on information which certain people have received. I find that very questionable.
It seems to me that, if we are doing proper and judicious work, which we have been doing, the formal process of Parliament should be allowed to function without the unnecessary, inconvenient or inappropriate release of information to interested individuals. This question is usually raised quite publicly when the Minister of Finance is preparing a budget.
I raise this as a question of privilege. I believe that there has been an impropriety, that there has been a breach, and that it is indeed unfortunate that information is out and available before senators have been informed, or before any senator has moved a motion in this committee to basically delete those clauses.
An additional consideration is that, frequently in committee and in the chamber, I raise the issue of constant, ongoing, persistent, and insistent contact between certain persons, whomever they may be, at the Department of Justice and certain judges of this land. I find it extremely disturbing and unhelpful that this information is in the hands of certain parties prior to it being in my hands.
To that extent, I consider this to be a very serious breach of my privileges here. As I said before, I support the minister's agreement to these amendments and I would have appreciated it had senators had the honour and the privilege of hearing this first, before the information was released into certain secretive circles.
Other persons may wish to speak to this point of privilege.
The Chairman: Before I open up the floor to discussion, Senator Cools, I should point out that this committee does not have the power to rule on a matter of privilege. If the committee so wishes, it must be reported to the Senate for decision.
I should also point out to you that, historically, the manner of proceeding in this committee has been to allow all members of the committee to know what was coming down the pike.
I think Senator Beaudoin will bear me out on this. I know that a similar situation happened when he was chair of this committee and I was sitting in as a member. This has been the custom of this committee, and I think we should proceed on those same grounds.
Senator Cools: That is not my question. My question is not on what you did yesterday. I accepted what you did yesterday. The question of privilege, the breach that I perceive, is the fact that other persons in this land, namely certain judges, are in possession of what we were to do as senators prior to any senator making statements about this in this committee and prior to senators having an opportunity to move motions to that effect. That is my concern, and I think it would behoove this committee to try to discover who has been making this information available to the judges of this land.
I am pleased that there has been progress made regarding these clauses but, frankly, I think we should have a chance to vote on it, or at least let the system move ahead.
The Chairman: We are about to have a chance to vote on it.
Senator Joyal: Following the statement made by Senator Cools, and since yesterday I was the member of the committee who notified my colleagues of my intention to move some amendments, I would like to bring a point of clarification. I would like to make a formal statement that I never, directly or indirectly, consulted any member of the bench, at any level, to get their opinion or reaction on my intention to move forward with any amendments and I never asked anyone in my office to do so.
I would like that point to be very clear on the record. If Senator Cools' statements happen to be true, it is certainly not because I was in any way part of an initiative that would have made my intentions known by any judge in this land.
The Chairman: I would further add -- if I may, Senator Cools -- that I want it made absolutely clear that any amendments that may be proposed today are not being proposed by the Minister of Justice. They are the Liberal senators' amendments.
Senator Cools: I accept that and I approve. I would like to be clear here. It was never my intention to question Senator's integrity in any form or fashion. I have known him for a long time. He is a man of outstanding character.
The information that I was referring to is obviously being exchanged between certain individuals at the Department of Justice and other persons across this land. I do not believe that members of this committee divulged the information. Let me be clear, so that no one thinks I was questioning that point.
Madam Chair, you have said that you cannot rule on a question of privilege. I know the rules concerning this well. However, this committee can resolve to take some action to investigate the matter in order to discover how this sort of information has been received by certain people. Perhaps the minister could come here to explain or perhaps we could recall the departmental officials to explain. I believe there is something here that commands attention.
The Chairman: Thank you, Senator Cools. However, for this committee to proceed in such a manner, we would need an order to do so from the Senate.
Senator Cools: In that case, since I cannot move a motion on this committee to that effect, I would urge the chairman or a member of this committee to put forward a motion asking the Senate to study the matter.
Senator Grafstein: Since I am a voting member of the committee, perhaps I could suggest to Senator Cools that a question of privilege, first and foremost, must arise and be stated at the first possible moment. In other words, if somebody's privileges are impinged, the rules state that the senator whose privileges one believes are impinged or interfered with must raise the issue. I assume that is why Senator Cools has raised it here.
Having said that, since Senator Cools believes that this is a matter of her privileges being encroached upon -- and, ultimately, it might affect others -- the appropriate way to deal with this matter that she is contesting is for the committee to take note of it. I assume we have already done so because it is noted on the record. If the senator wishes to pursue it, she should do so before the full chamber at the appropriate time, which would be today. I have not looked at the questions myself, but I am always sensitive to the privileges of senators. I assume that is the appropriate practice, but I look to Senator Beaudoin and others who may be more familiar with the rules. I am having difficulty with Senator Cools' position that a privilege has been breached because she is a non-voting member of the committee. I am not sure how the privilege is breached. Unless I am told otherwise, I conclude that this is a matter for the full chamber.
I would ask Senator Beaudoin for his comments and then we can move on.
Senator Beaudoin: If a person wishes to raise a point of privilege, then he or she must be a member of the committee. If no member of the committee wishes to do so, then that is the end of it. Of course, the matter may be raised in the Senate. However, if no voting member of this committee wishes to raise the point, then I do not see how we can deal with it.
Senator Cools: That is rubbish!
The Chairman: No. Order!
Senator Nolin: We do not accept "rubbish." If we are to decide on this, I want to hear all the evidence or I do not want to discuss it. I do not think we have the mandate to discuss it. It is your privilege to raise this matter in the chamber and to table all the evidence you have. You will have to produce something. You are accusing a lot of people without mentioning names and I do not wish to be part of that. It is your right to do so in the chamber, but do not do it here.
Senator Cools: I would like to respond to that.
Senator Beaudoin: One cannot call an explanation of our rules "rubbish."
Senator Nolin: No, you cannot.
The Chairman: Order. I agree with Senator Beaudoin's comments. I would hope that the senator would retract the word "rubbish."
Senator Cools: The word "rubbish" was an aside. It was not intended to be a formal statement.
Senator Balfour: Earlier you insisted on being on the record.
Senator Cools: Perhaps I should repeat that it was never my intention, in any way, to impugn the integrity of any individual member of this committee. If my use of a particular word as an aside was inappropriate, I will apologize. That is not a problem. Magnanimity comes very easily to me.
In response to the substance of what was said, I should like to say that the rule of "earliest opportunity" does not apply here. It is only applied when the Senate Speaker's role is being invoked in what we call a prima facie case in the chamber. It is only invoked in that instance and then, prima facie, that response is whether or not the Speaker of the Senate chooses to give priority over all other debate. This subject matter is becoming increasingly not only arcane but also unknown to the majority of senators.
The fact of the matter is that Senate privileges are not "my" privileges. Senators hold them collectively. It is my understanding that it is our duty to uphold the rules at all times. Those rules provide that senators must request information in a certain way. One of those ways, honourable senators, is to introduce a motion in the house. One cannot simply demand information.
What I am introducing here is a sense of discussion --
The Chairman: Senator Cools, I have the chair!
Senator Cools: You certainly do.
The Chairman: I believe that this subject has been explored in great depth. At this point, we will proceed to clause-by-clause consideration of Bill C-37.
It has been moved by Senator Moore that the committee complete clause-by-clause consideration of Bill C-37. Is it agreed?
Hon. Senators: Agreed.
The Chairman: Carried.
Shall clause 1 carry? At this point, I should point out that the normal procedure, if we want to delete a clause, is to vote "No, it shall not carry."
Senator Beaudoin: Yes, when the clause is called.
The Chairman: The clause is now called. Shall clause 1 carry?
Senator Beaudoin: No.
Senator Nolin: No.
The Chairman: I declare the motion negatived.
Senator Cools: Usually when we move clause by clause, there is opportunity for discussion first.
The Chairman: Senator Cools, there was no offer for discussion on this one and the motion has been negatived.
Shall clause 2 carry?
Hon. Senators: Agreed.
The Chairman: All those opposed? Carried.
Shall clause 3 carry?
Hon. Senators: Agreed.
The Chairman: All those opposed? Carried.
Senator Cools: I was under the impression that when we move a clause we do it formally by motion. It takes more than to say, "Shall this carry? Carried." It seems to me that an individual moved it. I move that.
The Chairman: It has been moved by Senator Moore that we should go to clause-by-clause consideration of the bill, and that is what we are doing.
Senator Cools: I think the proper way to proceed is for Senator Moore to say, "I move that this clause carry" when we get to each clause. It should then be seconded. Otherwise, the bill is not properly voted on.
The Chairman: This is the format that we have traditionally been following in the committee.
Senator Beaudoin: When we have an omnibus motion, such as that moved by Senator Moore, we do not repeat ourselves 25 times.
Senator Nolin: It implies we are moving each and every clause.
Senator Beaudoin: That is right. It is up to the chair to call each clause separately but not each motion separately.
The Chairman: Precisely, and that is what I am doing.
We have now carried clause 3.
Shall clause 4 carry?
Hon. Senators: Agreed.
The Chairman: Carried.
Shall clause 5 carry?
Hon. Senators: Agreed.
The Chairman: Carried.
Shall clause 6 carry?
Senator Joyal: Honourable senators, on clause 6, I move the following amendment. Members of the committee have copies in English in French.
That Bill C-37 be amended, in clause 6,
(a) on page 3, by adding the following after line 7:
"(1.1) In conducting its inquiry, the commission shall consider
(a) the prevailing economic conditions in Canada, including the cost of living, and the overall economic and current financial position of the federal government;
(b) the role of financial security of the judiciary in ensuring judicial independence;
(c) the need to attract outstanding candidates to the judiciary; and
(d) any other objective measure that the Commission considers relevant."; and
(b) on page 4, by replacing line 14 with the following:
"a report of the Commission within six months after receiving it."
[Translation]
In French, "Que le projet de loi C-37 soit modifié,
a) à la page 3, par adjonction, après la ligne 9, de ce qui suit:
(1.1) La commission fait son examen en tenant compte des facteurs suivants:
a) l'état de l'économie au Canada, y compris le coût de la vie ainsi que la situation économique et financière globale du gouvernement;
b) le rôle de la sécurité financière des juges dans la préservation de l'indépendance judiciaire;
c) le besoin de recruter les meilleurs candidats pour la magistrature;
d) tout autre facteur qu'elle considère pertinent.";
[English]
Of course, the rest of the article follows.
Senator Nolin: I have a subamendment. I do not have it in writing because I thought it would be included in the amendment just read. In the French version, section 26, or clause 6 of the bill, paragraph 1 --
[Translation]
The French version contains a reference to "juges fédéraux" in line 2, whereas the English version makes no mention whatsoever of federal judges. Federal judges do not exist in the legislation. The only reference is to judges. In my subamendment, I propose that the reference to "juges fédéraux" in clause 6, paragraph 1, line 2 of the French version of Bill C-37 be deleted. Unfortunately, I do not have this subamendment in writing.
[English]
Senator Beaudoin: I support that.
The Chairman: We are discussing this, Senator Cools, and I will give you an opportunity to speak.
Senator Joyal: I have no objection to including the proposed subamendment to the amendment which I have just read. Senator Nolin is right, there is no such qualification of judges in the English version of the bill. If we maintain "juges fédéraux," it could lead to confusion that we are dealing only with members of the Federal Court and not the other courts. That is certainly not the intention of the bill. We are dealing with the salary of all the judges appointed by the federal government, not only the Federal Court judges, but the Superior Court judges, the Court of Appeal judges, and so forth. The point raised by Senator Nolin is appropriate. It will not change the scope of the bill.
Senator Nolin: If we are on the discussion part of our consideration, in English, you have the word "Judicial" in the name of the commission. That word is not used in the French version.
Senator Grafstein: What word do they use in French?
Senator Nolin: In the name of the commission, there is no word like "judiciaire."
Senator Joyal: It is "Commission d'examen de la rémunération".
Senator Nolin: All of our judges are federal, first.
Senator Joyal: There is no doubt that if we maintain "juges fédéraux" in the French version, it could lead to some confusion in the interpretation of the mandate of the commission.
Senator Beaudoin: There is another reason. Both texts are equal according to law and the Constitution, and I think that is a major reason to eliminate the redundant word. We are talking about judges appointed by federal authority, but the expression "juges fédéraux" is not the best translation.
The Chairman: Our clerk is writing madly here. Senator Cools?
Senator Cools: I would submit to this committee, in particular to Senator Joyal and to the Liberal senators here, that this amendment has not received substantial and sufficient discussion in the Liberal Senate caucus. I would ask Senator Joyal if he would impose a limitation on himself, difficult as it would be, and that is to consider submitting this proposed amendment to our caucus and then --
Senator Beaudoin: On a point of order.
Senator Cools: I have not finished my remarks, but that is quite all right.
Senator Beaudoin: We are sitting in committee. What is going on in your caucus or in our caucus is immaterial.
The Chairman: I am not accepting that as a point of order, but I am accepting it as a valid point on this.
Senator Cools: My statement was cut off midstream. I was asking Senator Joyal to delay by a day or two, prior to proposing his amendment, so that this matter could be properly canvassed by the Liberal Senate caucus. I do not believe that I asked anything that was out of order. It is a very curious situation where the gentlemen across here are raising this as a potential point of order. I think I understand why. That is quite acceptable, because life unfolds as it does. I was making an appeal to Senator Joyal, since it is his amendment.
As I see it, it is not the government senators' amendment, because it has not been placed before us by the government sponsor of the bill. Thus, I must conclude that it is a personal amendment being moved by Senator Joyal. There is a big difference. Our government sponsors usually do certain things. If Senator Joyal wishes to comply with my request, I would submit, Senator Beaudoin, that it is no business of yours. I was putting it to Senator Joyal.
Senator Beaudoin: And my business is to point out that we are in committee. This committee does not need to know what is going on in your caucus or in my caucus.
Senator Cools: I am trying to ask a member whether he will consider delaying making a motion, and that is usually done at the point in time when that motion is made. I would like to hear Senator Joyal's response.
The Chairman: Order. Senator Joyal has heard your request. I do not believe that the caucus of any side of the Senate should be brought into discussions in this committee. It is up to Senator Joyal to decide whether he will agree to postpone these discussions, for whatever reason. Senator Cools, you did not have the floor.
Senator Joyal: Madam Chairman, we are now engaged in the process of voting on the proposed legislation clause by clause. I have suggested that we move forward, as that is our agenda for today. If there is any need for further discussion among certain members of this committee, that discussion will proceed outside the sitting this morning.
The Chairman: We shall proceed on the suggestions that have been made by Senator Nolin and Senator Joyal that Bill C-37 be amended, in the French version, by deleting, in clause 6 on page 3, line 4, the phrase "des juges fédéraux".
Senator Fraser: No, just the word "fédéraux".
Senator Joyal: That is right because the Judges Act defines which judges are covered by the Judges Act. Since it is an amendment to the Judges Act, the definition that is applied in that section is already contained in the Judges Act. Therefore, we should not create confusion. I feel that we should maintain the definition currently in the Judges Act. That is probably the most compelling argument in support of Senator Nolin's argument.
[Translation]
Senator Fraser: Still with respect to the translation, point (d) in the English version refers to "any other objective measure", while the French version refers to "de tout autre facteur". Should the word "objectif" be added to the French version or does the word "facteur" imply objectivity?
[English]
Senator Joyal: That is a very important point. Would Senator Fraser care to explain why she raised it?
Senator Fraser: I suggest that we insert the word "objectif" after the word "facteur" .
Senator Beaudoin: Two words or just one?
Senator Fraser: Just one.
[Translation]
Senator Beaudoin: How would the amendment read then?
Senator Fraser: Right now, it reads "tout autre facteur qu'elle considère pertinent". I am proposing that it to be amended to read "tout autre facteur objectif qu'elle considère pertinent".
[English]
Senator Joyal: In the English version we say "any other objective measure". There is a qualification in English which does not exist in the French version.
[Translation]
Senator Nolin: "Objectif" is used as an adjective rather than as a noun. It would be inserted after the word "facteur".
[English]
The Chairman: Before we continue with amending clause 6, perhaps we should decide whether we will vote on the amendment to clause 1, in the French version, to delete the word "fédéraux".
Our researcher has something of interest to say on this.
Ms Nancy Holmes, Researcher: I should like to bring it to the attention of senators before they vote, that section 26 of the Judges Act does not use the reference "des juges fédéraux" with regard to establishing the commission.
Senator Beaudoin: What did they use?
Ms Holmes: They did not. They said:
[Translation]
"Chargé d'examiner si les traitements et autres prestations prévues à la présente loi".
[English]
It continues in the same.
The Chairman: So the entire phrase is not there.
Senator Nolin: The act refers to the appointment of commissioners without naming the commission. Now we will have a name for that commission. In the English version of the name we have the word "judicial". In the French version we have "juges fédéraux". I am suggesting that we leave out the word "fédéraux". All our judges are "fédéraux".
The Chairman: At this point, I will put the question on the first amendment to clause 6, which is that Bill C-37 be amended, in the French version, by deleting, in clause 6 on page 3, line 4, the word "fédéraux". Will all those in favour of the amendment so indicate.
Hon. Senators: Agreed.
The Chairman: Will all those opposed so indicate.
The amendment is carried.
We shall move to the second amendment.
Senator Grafstein: May I ask a question of Senator Joyal on the substance of the drafting? I have no difficulty with the principles. I just query the placement of "(a)" as opposed to "(b)". One of the fundamental principles and one of our concerns is the principle of judicial independence. I wondered whether "(b)" should be "(a)" and "(a)" should be "(b)". I raise this in the context that general principles should follow with specifics, as opposed to specific and then general. The key principle here is to sustain the principle of judicial independence.
Having said that, I then look at the wording of "(b)". While I think I understand the principle, to which I do not object, I wonder whether we could redraft it slightly. Just to illustrate my point, instead of using the phrase, "the role of financial security of the judiciary in ensuring judicial independence", I would suggest we start with, "to ensure judicial independence, the role of financial security of the judiciary." I would make that the first principle that describes what we are doing here. We are really trying to establish an objective standard for judicial independence, yet political accountability. Those are the two principles.
I am not suggesting that we make that change. I am only asking Senator Joyal, who has looked at this longer than I have, to tell me if that meets with his view. If it does not, I will not move it as an amendment.
Senator Joyal: Madam Chair, we all know that one of the fundamental principles is, of course, the independence of the judiciary from the legislative and the executive. Those principles are at the root of our parliamentary and constitutional system. To maintain the separation of the three powers, there are elements that the independence of the judiciary should be asserting. One of them, of course, is security of tenure. The second one is financial security. It is important that those elements be stated when we are dealing with compensation of the judiciary.
I personally have no opposition to the suggestion put forward by Senator Grafstein, as such. However, since we are addressing only one aspect of the independence of the judicial system, which is financial security -- we are not dealing with security of tenure in this bill -- I suggest that, in bringing forward the importance of the financial security to the commission, as it is an essential element of their work, we not deal with the overall elements of the independence of the judiciary.
That, of course, involves security of tenure and so on. That is why it was phrased that way. Otherwise, we would need to enumerate the three elements that have been traditionally considered as the guarantees of judicial independence.
This is the best way we could find to state the principles which you just stated yourself and which are, in fact, at the root of any work of the commission. The commission works within the context of the independence of the judicial system and, in that context, it has a specific role to ensure that financial security is confirmed through the recommendation and the study that it makes. It gives the overall context in which the commission must work to prevent the discussion of the questions which were raised in the Supreme Court of Canada in the P.E.I. Reference case, which is: How do you define "financial security" versus "judicial independence"?
Of course, it brings forward the overall capacity of the commission to maintain a balance between that principle and the other prevailing economic conditions and so forth. In other words, there is not only the economic set of elements. There are also sets of elements which deal with the very structure of the independence of the judicial system, which, for instance, do not exist in compensation boards for the public service. The public service is not separated from the administration of the government, but the judicial system is totally separated from the administration of the government. It is important to state that principle when we are formally establishing a commission that has the responsibility to define how the element of financial security will be guaranteed in that context. That is why it is stated that way. I agree there are two ways to state the overall objective of the work of the commission, but I feel that the way it is stated now meets Senator Grafstein's preoccupation.
Senator Balfour: I do not wish to quibble over words with Senator Grafstein, but if I had been drafting the text, I think I would have stated "the necessity for" or "the need for" rather than "the role of", because that is what we are talking about. In order to have judicial independence, it is necessary that judges have financial security. We are not talking about a role; we are talking about a need.
The Chairman: I must say this clause has been the subject of a great deal of debate.
Senator Balfour: And I was not present for that.
Senator Joyal: I agree with Senator Balfour and Senator Grafstein. I should say, in a candid way, that the dictionary is full of words. That is the magic of language. Certainly we can state an objective and use a certain number of words to describe it without changing the very nature of what we want to say. My honourable colleagues will understand that I tried to draft a text which would meet the very point I was making in my remarks, that is, to be sure that this text is in conformity with our constitutional tradition and our constitutional obligations of separation of power. I was conscious of choosing the terms to be sure that they were acceptable in the context of our legal tradition.
At this point, while I know that those of us who are lawyers or who have discussed legal concepts can express principles in various ways, I would be tempted to maintain this one as it stands, taking into account the research and discussion I had with the legal adviser on the selection of these words.
I understand your point. It is part of the overall essential of judicial independence that we want to maintain through the capacity of the commission to ensure that judges have financial security.
Senator Beaudoin: I think we have discussed this ad nauseam, because it is only one point out of three in the Valenti case. I am ready to accept this as it is.
The Chairman: May I ask your opinions on point "(d)", Senator Joyal and others?
Senator Joyal: I would like to hear the opinion of my colleagues before I make my comments on that, Madam Chairman.
The Chairman: We are referring to the change suggested by Senator Fraser in the French version of "1.1(d)", that the word "objectif" be added after the word "facteur".
Senator Beaudoin: I have a problem with that. Look at this.
[Translation]
The French version reads "La Commission fait son examen en tenant compte des facteurs suivants", namely (a), (b), (c) and (d), "tout autre facteur qu'elle considère pertinent.
[English]
I think if we change any version, it should be the English version which states that the commission shall consider. There is no mention of the objective or the measure. It states, shall consider "(a), (b), (c), (d)" and any other objective measure. It has been translated as "tout autre facteur".
[Translation]
When you say "tout autre facteur", this implies objectivity.
Senator Joyal: No, not necessarily.
[English]
Senator Beaudoin: A factor is something that exists. It exists or it does not exist.
Senator Grafstein: That point is well taken. In the P.E.I. Reference case, one of the overlapping issues was the need for objective criteria. "Criteria" is better than "objective measures". I can bring a criterion to bear. I can say that I think everyone who has a certain colour of hair should be treated in a certain way. That, to my mind, is an arbitrary criterion. On the other hand, if I say judges who are disabled should be treated in a certain way, then I move from the arbitrary to the general. I think that "objectif" means those objective, non-arbitrary factors. We do not want the commission to say, "By the way, this was our thought." If they have a thought, it must be a generally accepted criterion. It is almost like the notion of generally accepted accounting principles.
The Chairman: Before we go further, it may be of interest to you to note that, in the P.E.I. Reference case, they must make recommendations on judges' remuneration by reference to objective criteria. This is where the reference comes from.
Senator Beaudoin: Objective criteria is much better. I think we should change it to that expression.
Senator Grafstein: How would that be translated in French?
The Chairman: Senator Nolin has the floor.
Senator Nolin: Of course, we can change the word "measure" to "criteria", but the intent of Senator Fraser's amendment was to add --
[Translation]
-- if you look at the three first factors or criteria listed, clearly, they are all objective. There is no need to qualify them. However, in subparagraph 4, because they are no longer defined, these factors need to be qualified. The commission has the flexibility to choose on its own those measures or criteria that it deems necessary. These criteria should be objective. It is quite appropriate to insert the word "objective", but only in subparagraph 4.
[English]
Senator Beaudoin: In the P.E.I. Reference case, they referred to objective criteria. That decision is also available in French. What does it say in French?
The Chairman: We do not have the French version of the P.E.I. Reference case here. We will try to get it off the Internet.
Senator Joyal: To continue on the point raised by Senator Nolin, I would remind you that the concept came from the P.E.I. Reference case. In my opinion, it was important. The basis of this amendment is that the mandate of the commission be circumscribed. The court clearly mentioned it had one element in mind when it stated that objective. In other words, it did not want to leave the commission with an open-ended mandate to make recommendations that could not be measured by objective criteria. That is my interpretation of the decision, and that is what I think we understand here.
When I was drafting the amendment, I thought it important that the word "objective" be maintained. It qualifies the various elements that the commission would take into consideration in making recommendations. I thought it was necessary to add a certain number of examples of criteria, such as the need to attract outstanding candidates to the judiciary. That idea came from the Scott commission. Honourable senators will remember that when Mr. Scott was here, he testified in that regard.
As well, the prevailing economic conditions in Canada, including the cost of living, must be taken into account. It is mentioned in the P.E.I. Reference decision as an objective criterion. The overall economic and current financial position of the federal government is also an objective criterion.
If we are to allow the commission the capacity to do its work, then it must be able to consider other criteria, but in an objective manner. In other words, it must consider criteria that are justified, ones that are measured on objective grounds. That is why the word "objective" is so important.
I certainly support the suggestion of Senator Fraser in that regard; the word "criteria" is part of the sense of that amendment.
The Chairman: It is in the French version of the P.E.I. decision as well.
Senator Joyal: We agree that we must ensure that the English and French versions are as similar as possible.
The Chairman: We cannot change the wording after we have passed it. Therefore, we should have the exact wording before us before we vote.
We can come back to it later. We will leave the staff to worry about it.
We will move on to part "(b)" of clause 6, on page 4. Do you have a further amendment, Senator Joyal?
Senator Joyal: Yes, Madam Chairman. It is essentially a matter of clarification.
I move that Bill C-37 be amended at paragraph "(b)", on page 4, by replacing line 14 with the following:
"a report of the Commission within six months after receiving it.".
The French amendment would read:
[Translation]
Paragraph:
b) à la page 4, par substitution à la ligne 13, de ce qui suit:
"(7) Le ministre donne suite au rapport de la Commission au".
...within six months of receiving it. The six-month period remains in effect. We are talking here about the commission's report. This provision can be somewhat confusing, as it is not clear if we are talking about the commission's report or about Parliament's report.
Senator Beaudoin: Does the French version make no mention of this six-month period?
Senator Joyal: Yes, the text continues on line 14.
Senator Beaudoin: And that is where mention is made of the six-month period?
Senator Joyal: Precisely. The only thing added to the French version is "de la Commission" because it is not clear which report is being referred to. It is purely a technicality.
[English]
I think we all understand the point.
The Chairman: At this point, rather than voting on part "(b)," we will go back to part "(a)" because we now have the wording.
Because there are changes to both the English and French versions, we will have to vote on both versions. We will start with the English version. Senator Joyal, will you restate the amendment?
Senator Joyal: The amendment to paragraph "(d)" states:
"any other objective criteria that the Commission considers relevant.";
The Chairman: Shall the English version of clause 6, as further amended, carry?
Hon. Senators: Agreed.
The Chairman: Carried.
Rather than reading the entire clause, it has been moved by Senator Joyal that paragraph "(d)" read:
[Translation]
Tout autre critère objectif qu'elle considère pertinent.
Senator Beaudoin: Perfect.
[English]
Senator Nolin: In the introduction of "1.1" we have the word "facteur". We must change that to "critère". I want to ensure that we are talking about the same thing.
Senator Joyal: Personally, I would prefer "facteur" in both paragraph "1.1" and in subparagraph "(d)".
Senator Nolin: My point is to use the same wording in both places.
Senator Beaudoin: But what will we use?
Senator Joyal: We will use the word "facteur".
[Translation]
Senator Joyal: "Facteur."
Senator Nolin: The correct word is "facteur."
Senator Beaudoin: However, in point d), we would use "critère objectif"?
Senator Joyal: No, we would use "facteur" to maintain agreement with paragraph 1.1.
Senator Beaudoin: And what do we do with the English version?
[English]
The Chairman: What Senator Joyal is moving is to change his amendment to read, in part "(d)":
[Translation]
Tout autre facteur objectif qu'elle considère pertinent.
[English]
All in favour?
Senator Beaudoin: If we leave the word "criteria" in, it is included in "facteur".
Senator Joyal: I totally agree with Senator Beaudoin that in the definition "criteria" is part of "facteur". To ensure that the concordance is maintained, we should include the word "facteur". One includes the other.
The Chairman: All those in favour of the amendment?
Hon. Senators: Agreed.
The Chairman: All those opposed?
Carried.
That clause 6 be further amended by substituting at line 14:
"a report of the Commission within six months after receiving it."
I am informed that the French works as well.
All those in favour of the amendment?
Hon. Senators: Agreed.
The Chairman: All those opposed?
Carried.
Shall clause 6, as amended, carry?
Hon. Senators: Agreed.
The Chairman: All those opposed?
Carried.
Shall clause 7 carry?
Hon. Senators: Agreed.
The Chairman: All those opposed?
Carried.
Shall clause 8 carry?All those in favour?
Hon. Senators: Agreed.
The Chairman: I declare clause 8 carried.
Shall clause 9 carry? All those in favour?
Hon. Senators: No.
The Chairman: All those opposed?
I declare clause 9 negatived.
Shall clause 10 carry?
Hon. Senators: No.
The Chairman: I declare clause 10 negatived.
Shall clause 11 carry?
Hon. Senators: No.
The Chairman: I declare clause 11 negatived.
There are no changes to clauses 12 to 20. Shall we consider them en masse?
Hon. Senators: Agreed.
Senator Beaudoin: I wish to confirm one thing. Clause 12 refers to amending section 47. It mentions the word "enfant".
[Translation]
I trust it is not related to the question of the surviving spouse.
Senator Nolin: No, it has to do with the question of children.
Senator Beaudoin: Shall this clause carry?
[English]
Senator Beaudoin: My concerns have been addressed. I wanted to be sure.
The Chairman: Shall clauses 12 to 20 carry?
Hon. Senators: Agreed.
The Chairman: Opposed?
Carried.
Shall clause 21 carry?
Senator Joyal: Madam Chairman, taking into account that we have amended the previous clauses of the bill, I would like to move an amendment to ensure that we are consistent with the previous clauses of the bill. I would like to move that Bill C-37 be amended in clause 21, on page 13, by replacing lines 1 to 3 with the following:
"21. Sections 2, 3, 7 and 14 to 20 come into force on a day or"
[Translation]
In French, the amendment would read as follows:
Que le projet de loi C-37, à l'article 21, soit modifié, par substitution, aux lignes 3 à 5, page 13, de ce qui suit:
"21. Les articles 2, 3, 7, et 14 à 20 entrent en vigueur à la date".
And it goes on to say on line 6 "à la date fixée par décret".
Senator Nolin: The coming-into-force date is determined by an order of the Governor in Council. A question just occurred to me. I did not put any questions to the department's witnesses when they testified before the committee. Since the coming into force of these amendments affects remuneration, does this clause not put some power in the hands of the executive? Could this not be perceived as the executive branch exercising some control over remuneration? Why would the bill not come into force on the day it receives Royal Assent?
Senator Joyal: I would not venture to speak on behalf of the justice department or the Minister of Justice, but I do believe that some provisions have been put in place.
[English]
One of the main reasons this provision has been added is that there are elements in the bill which needed further consultation with the various levels of the judiciary. In particular, in Ontario, there are discussions about the establishment of the new judges of the family court, and so forth. That is why there are elements that require further discussion with other parties and the necessity of clause 21.
Normally legislation comes into force on the day of its Royal Assent. However, because of the particular elements in the bill with respect to the provincial court, the coming into effect of the bill is fixed by an order of the Governor in Council.
Senator Beaudoin: Having regard to the complexity of the statute, I do not think it detracts from the independence of the judiciary. I understand your point because if the executive branch chooses to delay, the judges may interpret that as going against the independence of the judges." However, in my opinion, this is purely technical, and I would not worry about it.
Senator Nolin: My concern relates to clause 5. As I see it, clause 5 is not included in here. Therefore, I can backtrack on my earlier comments. Clause 5 is the remuneration clause.
Senator Joyal: However, it is not included.
[Translation]
The amendments pertain to clauses 2,3,7, 14 and 20.
Senator Nolin: I withdraw my comments in that case.
[English]
The Chairman: If I may clarify, these technical amendments are being put in because, in conjunction with Ontario's Bill 79, which would rename certain courts of Ontario, clauses 2, 3 and 7 and the transitional provisions of Bill C-37 would make corresponding amendments to various pieces of legislation, including the Judges Act.
Senator Nolin: I would ask members of this committee to forget my previous comments. The Constitution gives that power to Parliament, not to the executive branch of the government.
Senator Beaudoin: It is the power of the purse.
Senator Joyal: It is important that we know which parts of the bill are subject to a decree of the Governor in Council, taking into account the principle of the separation of power, which we discussed this morning. We must be clear that what we are doing is in strict conformity with the separation of power.
The Chairman: The question then is on the amendment to clause 21. All those in favour of the amendment?
Hon. Senators: Agreed.
The Chairman: All those opposed?
Carried.
Shall clause 21, as amended, carry?
Hon. Senators: Agreed.
The Chairman: Carried.
Shall the title carry?
Hon. Senators: Agreed.
The Chairman: Carried.
Shall the bill, as amended, carry?
Hon. Senators: Agreed.
The Chairman: Carried.
Is it agreed that the clauses of the bill be renumbered appropriately?
Hon. Senators: Agreed.
The Chairman: Carried.
Shall I report the bill, as amended, to the Senate?
Hon. Senators: Agreed.
The Chairman: That completes our agenda for today, honourable senators.
The committee adjourned.