Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 30 - Evidence, March 20, 2002
OTTAWA, Wednesday, March 20, 2002
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-30, to establish a body that provides administrative services to the Federal Court of Appeal, the Federal Court, the Court Martial Appeal Court and the Tax Court of Canada, to amend the Federal Court Act, the Tax Court of Canada Act and the Judges Act, and to make related and consequential amendments to other Acts, met this day at 4:05 p.m. to give consideration to the bill.
Senator Lorna Milne (Chairman) in the Chair.
[English]
The Chairman: Before we hear from the witnesses, I should like to inform honourable senators that the group of young people we have with us today is from the Forum for Young Canadians. Welcome to our committee.
I wish to inform our guests that we are meeting in an historic room. This room was redesigned and built specifically for the first meeting of the G7 summit countries. One of the first participants in the G7 group of countries was of course Canada, the host country, as well as Great Britain, when Margaret Thatcher was the Prime Minister. You are in an historic room that is exactly as it was when that first summit meeting was held.
Our witnesses are from the Department of Justice. They are here to give us a presentation as to why we should pass this bill immediately.
[Translation]
Ms Judith Bellis, General Counsel and Director, Judicial Affairs, Courts and Tribunal Policy, Department of Justice: Madam Chairperson, I propose to provide a brief overview of the main elements of the bill. My colleagues and I will then make every effort to answer any questions that committee members may have with respect to what, as you can see, is very technical legislation.
[English]
At second reading, Senator Bryden mentioned the principal objective of Bill C-30, which is to improve the efficiency and effectiveness of the administration of the Federal Court of Canada and Tax Court of Canada through structural modifications to those courts.
By way of background, honourable senators, Bill C-30 is not intended to alter the current jurisdiction of either the Federal Court or the Tax Court; rather, the focus is on opportunities for administrative improvement, many of which were identified by the Auditor General for Canada in his 1997 report on the Federal Court and Tax Court of Canada.
Also by way of background, I should advise the committee that the administrative improvements in Bill C-30 have been developed in close consultation with all the affected courts. The courts were actively involved, not only to respect their necessary independence, but also to ensure that the public continues to be well served and to receive the high quality of justice that we have come to expect from these courts.
The bill has three main elements: first, the creation of a new body, called the Courts Administration Service, which would consolidate the current administrative services of the Federal Court and Tax Court; second, the separation of the existing trial and appeal divisions of the Federal Court of Canada into two distinct courts managed separately by two chief justices; third, the conferral of superior court status on the Tax Court.
I will describe the main aspects of these three elements. The proposed Courts Administration Service would provide administrative support to the Federal Court, the Federal Court of Appeal, the Tax Court, and the Court Martial Appeals Court. This would include common management of facilities, registries and related real properties, such as libraries and case-related information systems, and common corporate services such as finance, human resources, material, information, technology, related management systems.
A chief administrator who would be a senior, experienced official appointed by the Governor in Council would head the new service. The chief administrator would be the chief executive officer of the service, with overall management responsibility and administrative authority. The chief administrator would be accountable to Parliament through an annual report and would appear before parliamentary committees to answer questions on the administration of these courts.
As honourable senators are no doubt aware, the Constitution established that court administration is an area of shared responsibility between the government and the judiciary. The principle of judicial independence requires that the judiciary retain control over matters touching on the judicial function.
Bill C-30 recognizes this constitutional imperative in a number of ways. First, as honourable senators will see in clause 8, the authority and responsibilities of the chief justices are specifically enumerated. The bill also expressly provides that the chief administrator must consult the chief justices when making decisions concerning the establishment and the operation of registries and when preparing budgetary submissions.
These proposals contemplate a strong collaborative partnership between the chief administrator and the chief justices in the administration of the courts. They also recognize that there may be occasional disagreements between a chief justice and the chief administrator regarding an aspect of Courts Administration and a definitive decision is needed.
The bill provides that in such cases the chief justice may give the chief administrator a written and binding direction. The chief administrator, in turn, can rely on such a written direction in fulfilling her responsibility to account for all aspects of courts administration before parliamentary committees. She could also publish any direction in the annual report to Parliament. I have indicated that that is one of the statutory requirements.
Honourable senators, one of the reasons this bill is so long is that the establishment of the proposed Courts Administration Service of the Federal Court and Tax Court results in many essentially technical consequential amendments.
[Translation]
The second main element of this bill is the formal separation of the current Federal Court Trial Division and the Federal Court of Appeal. The objective of this reform is to clarify the respective roles of the Chief Justices of the trial court and court of appeal, in order to ensure the most efficient judicial management of each court.
[English]
At present, the chief justice of the Federal Court of Canada is responsible for the overall management of both the trial division and the Court of Appeal. The bill would create two separate courts. The current chief justice would continue to be responsible for the management of the Court of Appeal but would have no further responsibility for management of the trial court. The current associate chief justice would become the chief justice of the trial court with overall management responsibility of that court. I would note for senators that this structure, as you are probably aware, is the norm for most of the provincial superior courts.
The separation of the trial and appeal courts would also result in a number of technical changes, mostly related to the titles of the courts and the judges, including redistribution of judges drawn from the Quebec bar between the two newly created courts.
There would also need to be changes in the overall composition of the Federal Court Rules Committee. The chief administrator would become a member of the committee and membership would increase in order to ensure the necessary judicial majority. The chief justice of the Court of Appeal would continue to designate the chair of the committee and the chief justice would continue to designate non-judicial members.
The last main element of the bill would confer superior court status on the Tax Court of Canada. This change is intended to provide a sound basis for the effective collaboration between four courts that would be served by the proposed Courts Administration Service. In essence, it allows all four courts to deal with each other and with the chief administrator as equal partners in this new courts administration model. This change in status would not result in additional cost, since judges of the Tax Court of Canada already receive the same salaries and benefits as superior court judges and the judges of the Federal Court of Canada.
As with the structural changes to the Federal Court of Canada, this proposal is essentially administrative in nature and is not intended to make any substantive change to the current procedures or remedial powers of the tax court.
[Translation]
Most of the other proposed changes to the Tax Court of Canada Act are essentially technical and relate to changes in the new titles of Chief Justice and Associate Chief Justice.
[English]
The bill would also codify certain jurisdiction that the tax court currently exercises at common law with respect to contempt, ex facie, vexatious proceedings and constitutional questions.
That, Madam Chair, is a brief overview of Bill C-30. My colleagues and I would be pleased to respond to specific questions that honourable senators might have.
Senator Beaudoin: I am for the principle of the bill. It is true that it is a technical bill. However, Bill C-30 is related to the third power of the state, the judicial branch. I agree with the idea of having an important officer with good administrative powers, but did you say that he or she would respond to Parliament?
Ms Bellis: It would be in the same fashion that a deputy minister would appear in committee with respect to the Estimates or administration of his department.
Senator Beaudoin: Usually a person who goes before Parliament is appointed for more than five years, for example, the commissioners. Is there a reason for this restriction being for a period of five years?
Ms Bellis: It is true, Senator Beaudoin, that the term for the commissioner's tenure is specified here for five years. It is my understanding that that is a renewable term, that it does not restrict the opportunity for renewal. It is not an outside term. He is not a parliamentary commissioner in the same way as the Information and Privacy Commissioner or the Commissioner of Official Languages. A five-year term was chosen as appropriate.
Senator Beaudoin: Take, for example the Department of Justice. The deputy minister is at the top. That is not a five- year appointment; he or she is appointed for many years. I do not have any problem with that. That is an Order in Council.
Ms Bellis: It is an Order in Council in the same way as this.
Senator Beaudoin: However, it is not a mandate, it is an appointment to the public service.
Ms Bellis: It is not a public service appointment; it is an Order-in-Council appointment in the same way that an appointment is made to a tribunal or to other office. Deputy ministers are the one level within the public service that do hold office at pleasure and are not governed by the Public Service Act, including the security of office.
Senator Beaudoin: With that I cannot agree more.
That person will be appointed to a very important position. There are many judges involved here — 50 perhaps. Of course, that person will have only administrative duties, nothing else.
I want to be sure that this will not raise any problem for the justice system, the third branch of the state. As we say very often in this committee, justice should be done and should be seen to be done. If it were only administrative, I would say that I agree that it should be for a certain period. However, five years does not seem to be prima facie adequate. It should be more than that. Will this change at each election or some other time?
Ms Bellis: The tenure of the chief administrator is at pleasure, which means that at any point it is open to the government to —
Senator Beaudoin: It is more than five years.
Senator Grafstein: It is five years.
Ms Bellis: The tenure is at pleasure. He is not appointed on good behaviour.
Senator Beaudoin: We have to look at the terms: Is he appointed at pleasure or is he appointed for a term?
Ms Bellis: He is appointed at pleasure for a term of up to five years. There would be an outside time frame for the original Order in Council. It could be renewed.
Senator Moore: Maximum five years.
Senator Beaudoin: Prima facie, I think that is a bit short. That means that there may be a change every five years, or perhaps less than that. I agree with the term ``at pleasure.'' I have no problem with that.
However, why is the term restricted to five years?
Ms Bellis: The choice of five years was because it was similar to other offices, orders and appointments. The more important point is that the tenure of the chief administrator does contemplate, even if he is appointed for up to five years, that he could be removed at pleasure by the government. The five years —
Senator Pearson: Or renewed.
Ms Bellis: Exactly.
Senator Beaudoin: It is not the term ``at pleasure'' that is the problem, it is the term ``up to five years.''
Ms Bellis: I expect, and I can only offer this as an explanation, that the appointment of a chief administrator who had demonstrated an effectiveness in his or her office at the five-year point would be renewed. There is no legal limitation on that.
Given that the objective of this bill is to ensure improved accountability with respect to the administration of the court, while respecting the necessary area of independence of the judiciary, it will be a challenge — I say that politely but with some conviction — for the chief administrator to administer essentially under the direction of four chief justices. In order to ensure that the accountability and the efficiency of the administration continues, the government and the judiciary will want to ensure that the person who holds that office has ongoing and continued capacity to do that.
In the event that he or she is not able to affect the necessary cooperation and collaboration, it would be possible to have someone else come in to assume that role. It is that balance that was being sought by having the ``at pleasure.'' In terms of the five years, I believe it was contemplated that it would be useful to have a review of those issues every five years on the assumption that because that person had developed the experience, relationship and collaborative capacity, the government would be loath to change that person at the point of renewal.
Senator Beaudoin: That is my only preoccupation. I agree with everything else.
Senator Andreychuk: In the provincial courts with which I was familiar, there was great discussion on the independence of the courts, and the conduct of the administration of the court was one of those issues of independence. Here they are basically at the pleasure of the government. The decisions that came down with respect to the provincial court should also be instructive to federal courts and their independence. Have you taken those into account? I cannot remember all of them. There was one in New Brunswick or Nova Scotia.
Senator Grafstein: P.E.I. Supreme Court.
Senator Andreychuk: That was it. Have you taken those points into account by having someone at the pleasure of government?
Ms Bellis: I can respond to that probably in the most general way. Yes, we have taken that into consideration. As you can imagine, it was a point of primary concern to the chief justices and the judges of the court. The model that we have proposed for the tenure of the chief administrator was one that they agreed struck the balance between their necessary area of judicial control and the need for an administrator who would continue to be effective.
As we pointed out, in the event of a particular disagreement between the administrator and a chief justice on a matter of administration, there is a mechanism that has been provided. That is the binding written direction. It is expected that that would be rarely exercised, for obvious reasons. It is the rare administration that wants to have this kind of an issue in public. I would expect that the chief justices would feel that even more strongly.
If, however, for whatever reason, the wrong choice was made or the chief administrator found himself or herself at a regular impasse with the chief justices, the effectiveness of that administration could clearly suffer. However, the chief administrator held office on good behaviour, you could have a situation that could really undermine the overall effectiveness of the system. I expect it would be a rare case, but it could well be in both the interests of the courts and of the government to find someone else to come into that office to assume those responsibilities.
Senator Bryden: In the clause that appoints the chief administrator, there is provision for a consultation with the chief justice of the courts on the appointment, the reappointment and also on the termination, if that becomes the case. It is my understanding that this was the deal that was cut with the judges, to say, ``Yes, we need to be able to get rid of this person but we need to be able to be consulted.'' It is subclauses 5(1), (2) and (3).
Senator Joyal: Ms Bellis, when you said ``they have agreed'' and you said that about the judges, which body has agreed?
Ms Bellis: The consultations were directly with the chief justice and associate chief justice of the Federal Court, the chief judge and associate chief judge of the Tax Court, and the chief justice of the Court Martial Appeal Court. They, in turn, had extensive consultations with the members of their court. There were court meetings with respect to the evolution of this initiative. The consultations were undertaken by the former Deputy Minister of Justice, Mr. George Thomson, while subsequent discussions were undertaken by Mr. Morris Rosenberg.
Honourable senators may also be interested to know that the chief justice and associate chief justice of the Federal Court retained Roger Tassé as their constitutional adviser on the initiative. With the advice that he has provided, we were provided with clear written indications that the court would be prepared to support this bill. Those exchanges occurred in meetings as well as in written exchanges between the courts.
Finally, the consultations were in depth. They were very constructive, and were actively involved in the evolution of the model that we have here in Bill C-30.
Senator Joyal: Can we see the letter that was sent to the department agreeing to these proposals?
Ms Bellis: I would not be at liberty to release the letters coming from the judiciary, unless the chief justices were prepared to do that. As there is a necessity for the judiciary to maintain a frank, open and confidential exchange of views with the government in the development of this kind of policy, I expect there would be a reluctance to do that.
Senator Joyal: Perhaps we can ask Mr. Tassé to attend before the committee as a witness to comment about the constitutional aspect of this bill.
This is a very important defining line of judicial independence, and as you have properly recognized in the Supreme Court of Canada decision of 1997, I quote paragraph 130:
[Translation]
Independence of the judiciary implies not only that a judge should be free from executive or legislative encroachment and from political pressures and entanglements but also that he should be removed from financial or business entanglements likely to affect or rather to seem to affect him in the exercise of his judicial functions.
[English]
They must appear to be remote from any legislative intervention. With the chief administrator being appointed for five years, which I feel is a short period of time, as it is the life of a Parliament according our Constitution, the fact that he or she is removable may create the impression that this person does not benefit from the overall independent status that he or she should have in order to maintain the administration of services outside of political reach.
Ms Bellis: The range of control of the judiciary with respect to courts administration is an important one that must be respected. However, it is not, and Valente made this point, with respect to all courts administration, only those touching on the judicial function. That has been captured, and it was partly in our discussions with the chief justices that they were satisfied with the statutory articulation, which is inclusive, of course.
That being said, we could explore whether a statement from the courts as to their agreement with the bill could be provided.
Senator Joyal: That would be helpful. As I continue to read that same decision of the Supreme Court of 1997, paragraph 251 states:
[Translation]
[...] defined administrative independence in rather narrow terms, at p. 712, as ``the essentials of institutional independence which may be reasonably perceived as sufficient for purposes of s. 11(d)''. That essential minimum was defined (at p. 709) as control by the judiciary over:
[...] assignment of judges, sittings of the court, and court lists — as well as the related matters of allocation of court rooms and direction of the administrative staff engaged in carrying out these functions [...]
[English]
When you read the list of items under clause 8, the question of the direction of the administrative personnel is not mentioned.
In other words, there is an administrative element that is part of the judicial independence definition according to that paragraph of the Supreme Court decision. That may create the impression that the court is not totally independent from political reach in its daily function.
Ms Bellis: The functions that you quoted are enumerated in more detail in subsection 2 and subsection 3. There is specific reference to the officers, clerks and employees of the service acting at the direction of the chief justices. That had to do with any matter touching on the courtrooms.
Then there is the broader power, which is the deal breaker. The chief administrator has overall responsibility for management, recognizing this very difficult to define grey area of ultimate judicial control. The thinking in the development of the written, binding directions mechanism was that it was going to err on the side of reducing the area of the administrator's discretion. However, this would avoid your concern, that the chief justices would somehow be constrained in the exercise of their constitutional control in areas where there might not be clear definition.
That was the intent of subsection 9.
Senator Joyal: As you said, there is a grey area in the operation of the two entities, the judiciary and the chief administrator.
Ms Bellis: The presumption is in favour of the chief justices under this model.
Senator Joyal: Yes, I hope so. I share your views on that. My concern is ensuring those administrative questions remain outside the political reach as much as possible, to avoid, as the Supreme Court said, damaging the credibility of the functioning of the system.
Ms Bellis: As Senator Bryden pointed out, from a practical perspective the chief administrator's termination requires consultation with the chief justices. In a circumstance of inappropriate pressure, I expect the chief justices would rely on that statutory requirement to make their views known in order to restrain any inappropriate political interference.
Senator Joyal: The problem of political interference, as you mention, remains with those who report to Parliament. The issue of report to Parliament is not resolved in the context of what the Supreme Court has said with the remuneration of the justices. The Supreme Court has said that Parliament cannot decide the salaries of judges directly. The Supreme Court said there should be an entity in between the judges and Parliament. We debated that issue here some years ago. I see some of my colleagues who were part of that debate.
The Supreme Court said there should be a commission and the commission should make recommendations based on objective elements. If the minister does not accept those recommendations, they should be on reasonable grounds. There is a well-structured pyramidal system. On the administration of the court, which is a sensitive element, we immediately send it back to Parliament — in other words, in the realm of the political debate and partisan debate, on a yearly basis as you said. Clause 12 provides that there be a report to Parliament. As you have said in your presentation, any report in Parliament can be the object of a motion and be debated.
Ms Bellis: Of course there are annual reports that are informally given, not as a result of a statutory requirement by the Federal Court and the Tax Court now.
Senator Joyal: This bill ensures that the administration of the court remains as much the object of parliamentary debate as any other issue.
Ms Bellis: That includes any other departmental Estimates. If we return to the objective of the bill, admittedly, it is responsive to concerns articulated by the Auditor General that the current court administration requires a reform in order to improve efficiency, effectiveness and accountability.
Senator Joyal: You took the words out of my mouth. If an independent entity would review the report of the chief administrator, like the Auditor General, who is probably the best officer of Parliament, and make comments on the report to Parliament, to me that would satisfy the control of the purse because parliamentarians remain the ultimate judges of public expenses.
On the other hand, it will give to the report that kind of protection from the politicking that can come from anything that is thrown in Parliament.
Let me draw an analogy. The salaries have been taken out of Parliament; they have been given to a commission, with some guidelines. The proposal here is for the report of the court administration to go Parliament, but without the capacity, as you have said, of an officer like the Auditor General to review the report and say: ``I vet the report; this is okay.'' Having an officer like the Auditor General involved would help to confirm that the money has been well-spent, that the management policy, the hiring policy and all those sorts of things meet the requirements. Having it done that way would give the impression that the review of administration of the court was done in an arm's length manner.
I essentially tried to reconcile what we have been doing with the salaries and what we are doing now with the administration of the court.
Ms Bellis: I am not in a position, clearly, in my role here to enter into a discussion of alternative models, except to say that the model that we have here goes some way further to establishing an independent service than what exists in any of the provincial superior courts. As you know, the administration of the courts is essentially part of the Attorney General's department. This model takes the administration of the courts one step distant from that. Not only is it not part of the Department of Justice as it was 20 years ago, but, indeed, it is created in a status that is more arm's length. However, it still is an arm of the executive and its responsibility is for the effective administration of the courts.
There is an accountability objective in this, and this has not been structured as a completely self-administering model.
My only further point is that it is a model that has been agreed to and accepted by all the chief justices and the judges of the court as meeting their own needs for independence in their area of operation. They are satisfied that this is a model that will work for them in ensuring their independence in their area of necessary control, as well as in effective collaboration between the courts themselves.
[Translation]
Senator Rivest: On the subject of judicial independence, some restrictions are necessary when it comes to administrative services. When the government decided to charge public servants for parking, honourable justices, for whom I have the greatest respect in Quebec, argued that this substantial increase constituted an encroachment on their judicial independence.
Some caution is therefore in order. The Supreme Court judgement states that on the matter of fixing remuneration, a commission should be established. The government is free to follow the recommendations put forward by the commission, provided they are reasonable. I believe the Court was justified in ruling that a recommendation must be put forward by an intermediary body.
Regarding administrative matters, the principle of judicial independence must not be taken to extremes. It is clear to me on reading the bill that the administrator handles administrative matters, supplies and so forth. However, pursuant to section 8, the Chief Justice may be responsible for decisions more closely tied to judicial independence. The administrator ensures that a courtroom is available, that the lighting and ventilation are adequate, and so forth. However, the Chief Justice is responsible for assigning courtrooms and judges to sittings. Senator Joyal's concern is very legitimate. A balance has been struck. The role of the administrator is to provide administrative services to the various courts in question. However, assigning courtrooms and judges to sittings is a prerogative reserved for the Chief Justice. I do not see that having an administrator appointed by order-in-council interferes in any way with the judicial independence of the courts. It is a question of perspective.
[English]
The Chairman: Do you require an answer, Senator Rivest?
Senator Rivest: No, as long as the witnesses agree.
Ms Bellis: I completely agree with what was said.
Senator Moore: Proposed section 14 says:
The Chief Justice of the Federal Court of Appeal may designate an employee of the Service as the Judicial Administrator of the Federal Court of Appeal...
And similarly in the Federal Court. What is the relationship between a judicial administrator in one of those courts versus the chief administrator? Who has the final say?
Ms Bellis: I will let my colleague Ms Crosby speak to that question.
Ms Adair Crosby, Counsel, Judicial Affairs, Courts and Tribunal Policy, Department of Justice: There is already a provision in the rules of the Federal Court for the designation by the chief justice of a judicial administrator. In the legislation, we recognize the importance of a role for the judicial administrator to support the judicial function. The administrator's responsibility is not administrative, except to the extent that it is to assist the chief justice vis-à-vis the judicial role he or she fulfils. The duties of the administrator would include arranging the distribution of judicial business — that is, basically docket-management-related duties — and tasks assigned by the chief justice.
Senator Moore: Is that not what the chief administrator does?
Ms Crosby: No, if you look at the discussion we just had under clause 8 of the bill, the docket-management responsibilities fall within the parameters of the responsibility of the respective chief justices. So the role of the judicial administrator would be specifically in support of the chief justice's functions relating to his judicial responsibilities.
Senator Moore: It seems to me there is something here that is unnecessary. Is this chief administrator the chief of the designated judicial administrators?
Ms Crosby: The judicial administrators would be members of the public service. The chief justice would be designating members of the registry to assist him with his judicial responsibilities. It is not contemplated by the legislation that the functions for which the chief justice is directly responsible — for reasons of institutional independence — would be assumed by the chief administrator.
Senator Moore: I do not see much difference between the chores that each of those officials is undertaking.
Ms Bellis: Perhaps I can give an example, Senator Moore. The judicial administrator would assist the chief justice in maintaining the docket and the assignment of judges, for example — that is, in support of those functions exclusively within the control of the chief justices. However, in fulfilling the function of which judges are be assigned to which cases and in which courtrooms and, in the case of the Federal Court, in which cities, there would necessarily be a direct, active interaction between the judicial administrator and the rest of the registry and administrative staff, whether it be the people who arrange the travel, the registry agents or other aspects. It is not contemplated that this person be somehow separate and apart and fulfilling functions that do not relate to the rest of the administration.
Senator Moore: What is the protocol? The chiefs have retained the paramount position here, and then who is next — the administrator we will be appointing under the act, followed by these various court judicial administrators? Is that the hierarchy?
Ms Bellis: In terms of the way in which the administrative service would be structured, the judicial administrators would be appointed from that service. They would be chosen by the chief justices and they would work directly with the chief justices, and that is the case now.
Senator Moore: Who is the head person?
Ms Bellis: The chief administrator is the head person in terms of administration. If you are asking who is fully in charge with respect to matters like docketing and assignment, the answer is the chief justice. That is his area of administration. The chief administrator will have to play facilitative roles in ensuring that that happens, because it is he or she who will make the mechanics of the court system work in support of what the chief justice says needs to happen.
The Chairman: The judicial administrator then is in effect a chief of staff —
Senator Moore: What clause are you referring to?
The Chairman: It is on page 12, proposed section 14.
Senator Moore: It enables the chiefs to appoint the judicial administrator for the respective courts.
The Chairman: Am I correct?
Ms Bellis: That is correct. As my colleague has pointed out, the need for that office was identified and then created under the current Federal Court rules. This is merely reflecting that in the statute. As a practical matter, it is one of these areas where there is a shared direction to that person and a shared responsibility.
Senator Moore: There is an overlap.
Senator Grafstein: On a reading of this bill, we understand the complexity of two conflicting principles, the independence of the judiciary on the one hand and some form of accounting under the responsible government on the other. How do you mesh what appear to be conflicting principles? The question for this committee is whether the solution presented in this bill meets the paramount objective of the independence of the judiciary.
I have also read through the Supreme Court case, where the Supreme Court, as Senator Joyal pointed out, is very careful to say that they want the judiciary to be free of entanglements or administrative problems so they can exercise their discretion fully and freely without interference. That is in effect our calculus against which we have to measure the proposals made by the government to solve a problem that perhaps should not have been done by the Auditor General in the first place but should have been done independently. Let me start by testing the principle. How is the Supreme Court of Canada administered? Who is the chief administrator?
Ms Bellis: The Registrar of the Supreme Court of Canada is the equivalent office here.
Senator Grafstein: How is that person appointed?
Ms Bellis: That person is appointed by Order in Council in a very similar model to this. Madame Anne Roland has been in that position now for a great number of years.
Senator Grafstein: It is at pleasure?
Ms Bellis: It is at pleasure. It is Madame Roland who, where there is a necessity to have answers to questions with respect to that court's administration, whether in Estimates or in other specific contexts, would appear on behalf of the court to answer questions.
Senator Grafstein: Am I correct in this — again, I have not had a chance to check this — that the chief justice of the United States is in effect not only the chief judicial officer of the court but also the chief administrative officer?
Ms Bellis: The American model is quite different, based on tradition and the evolution of their particular system.
At the other end of the spectrum, as I have mentioned, are the models that are in place in the superior courts of plenary jurisdictions in all jurisdictions, other than the federal jurisdiction, in Canada. The invariable model is that the administration of the courts is not in a separate department or service; it is actually a subsection of the Attorney General's department.
This, as I say, has moved the administration of the court at greater arm's length from the overall —
Senator Grafstein: I understand that. Let me just test that.
Let us take a look at the subject matter before the courts. We are talking about a subject matter before the courts where the federal government has a particular interest, that is, the Tax Court and the Federal Court. Most matters in effect before those courts will essentially have the government on one side. The Tax Court, as an example, is all government — the government is one side or the other. In effect, the mandate of judicial independence has to in effect beyond reproach when it comes to independence question, particularly given these subject matters.
I say that after reading through the judgments in Valente, and also the Manitoba case.
Having said that, I am curious to know why, following Senator Moore's line of questioning, the chief administrator was not really appointed by the four judges and, in effect, treated in exactly the same way as their own. I understand the difference between the responsibility of overall governance and individual scheduling for each court. There is a dual role there.
Why would the model not commend itself to have the judges, in effect, appoint, under the same terms of reference, their judicial administrators? Again, there would not be any question of judicial independence. The judges would administer, as the Supreme Court mandates, both the administrative and the judicial aspects. It would be a clean and independent break.
In addition to that, the chief administrator would not be a public servant, in the traditional sense, the way the chief administrator is here. Remuneration is fixed by the Governor in Council, and the chief administrator, in effect, becomes an employee of the public service. That raises areas of apparent conflict between the public service and a matter that may come before the courts.
I am thinking of one case in particular that came before the Supreme Court dealing with Bell employees. That case had deep ramifications for the public service. I am certain you are familiar with that.
Ms Bellis: Yes, I am familiar with that.
Senator Grafstein: I understand your problem. The minister is proposing and you are here to dispose of the minister's views. Why would that not commend itself to a better model?
Ms Bellis: I believe I can answer that question directly, Senator Grafstein. It would certainly ensure, to the nth degree, the preservation of judicial independence over administration matters. However, that would not achieve the objectives of the government in seeking the appropriate level of accountability for the expenditure of significant public resources.
In the structure of responsible government, as Senator Rivest pointed out, we are seeking a balance. Judicial statements from the Valente case and from other cases, going back to the Deschenes report on the administration of the court, recognized that there would never be a completely happy balance. However, it is a balance in terms of administration being a matter for which the executive continues to be responsible within our system of government.
Senator Grafstein: Would the model not have been perfect or close to perfect if the chief administrator were appointed by the four judges? They would be compelled to get together and appoint someone based on their requirements. In that way, the accountability is direct. Then, to satisfy the public accountability — an important principle — that officer would be compelled to report to the Auditor General or to Parliament on how the funds are being dealt with.
At the end of the day, the administrator has to do that, in any event. Currently, instead of the task falling to an officer of the judges, it falls to an officer of the government. Would that not have met your secondary objective of ensuring that there is public accountability?
Ms Bellis: It is a model that might recommend itself. It is completely novel within the Canadian construct.
Senator Grafstein: You do not agree.
Ms Bellis: I am not in a position to disagree; I am here to speak to this model.
Senator Grafstein: Fair enough. Let me complete my line of thinking about this on the question of term.
I have no problem with a term for an officer who, essentially, reports to Parliament. However, a term that is less than one session begs many political questions. You do not want to have a term that is coincident with elections. The seven-year term that was first promoted was to avoid the problem of a parliamentary officer being at the dictate of the government of the day.
Again, I find this a curious solution — that we end up with pleasure for five years coincident with the session and no bow to the principle that it should be beyond a political mandate. Why, in effect —
Senator Bryden: On a matter of clarification, Senator Grafstein, when you say that the five-year term is coincident with the term of office of a government, presumably that is true, if you appoint the person at the beginning of the term, the government stays for exactly five years and the next appointment comes at that point. That would be a rather interesting situation. I do not think the appointments are usually made coincident, whether it is a five-year, two-year or three-year appointment, on the day that a government takes office and then is changed when the government changes. It could be seven years or five years.
Senator Grafstein: The debate took place in Parliament some time ago concerning these officers. The conclusion was to make the term of appointment seven years so that it would be beyond the purview of a doubt. The term would overlap at least two full governments.
Do you have a response to the question of the seven-year term?
Ms Bellis: I believe that the best I can offer is to reiterate what is contemplated here: an officer appointed at pleasure for up to five years that would be renewable at each point with consultation with the judiciary. The concern with respect to inappropriate decisions that might be politically motivated would be lessened by the fact of those consultations. The four chief justices would have an interest and would potentially speak publicly in criticism of potential influence being exercised by the government.
Senator Grafstein: The wording in clause 5(3) is curious. It says: ``The Minister of Justice shall consult...'' Why is it not, for greater certainty of independence, ``The Minister of Justice shall seek the consent of the justices...''?
If you wanted independence — independence is consent; independence is not consultation.
Ms Bellis: The consultation model is used with respect to the concurrence of the chief justice as President of the Canadian Judicial Council and the Commissioner for Federal Judicial Affairs, who, I would remind honourable senators, administers all of the judicial remuneration and compensation. The administration of those resources is of equal or greater significance to the judiciary. That officer is appointed on similar terms and is subject to the same accountability. That was the model used for the design of this office as well.
[Translation]
Senator Rivest: I would point out to my colleagues who are justifiably concerned about the role of the administrator and how it all ties in with political powers and judicial independence that they need only consider clause 9 of Bill C-30.
9.(1) A chief justice may issue binding directions in writing to the Chief Administrator with respect to any matter within the Chief Administrator's authority.
If ever a case of interference were to arise, the chief justice would be aware of it. Basically, the Chief Administrator operates under the full authority of the chief justices.
[English]
Senator Beaudoin: The more I think about this, we cannot compare the chief administrator with an officer of Parliament, such as the Auditor General or the Commissioner of Official Languages, et cetera.
If that chief administrator is responding to someone, it is to the judiciary. It is obvious that clause 9(1) is very broad.
It states:
9.(1) A chief justice may issue binding directions in writing to the Chief Administrator with respect to any matter within the Chief Administrator's authority.
In some ways, he may supervise the chief administrator, even in the administration of the chief administrator's own affairs. That being said, obviously the chief administrator is not at the level of an officer of Parliament.
Now, clause 12 says:
12. (1) The Chief Administrator shall, within six months after the end of each fiscal year —
That is a very short time.
send to the Minister of Justice —
The Minister of Justice is not a parliamentarian; he or she is a minister.
— a report on the activities of the Service for that year.
The judiciary is certainly strong enough with that.
My last point follows on the point raised by Senator Grafstein, the term of five years. A Parliament may last five years; the exception is in case of emergency. It is usually four years. It is not mathematical. There is only one question that remains: Could he or she be appointed for four years?
Ms Bellis: The current term is up to five years.
Senator Beaudoin: Does that mean the Governor in Council may appoint a person for two or three years? I do not think that would be a good thing, but it is possible.
As a result of clauses 9 and 12, the administrator is not as strong. At first I thought the position was very strong, but it appears not to be so. He falls under the chief justices in clause 9.
If an administrator from the third branch of the state has the final word, and that person may be supervised by the judicial system, I am not too worried.
Senator Joyal: On the same subject, there is an element of continuity that is inherent to the appointment of judges. The example we have in federal statutes of an appointment that would be of comparative length of time to judges is the Chief Electoral Officer. I should like to quote sections 13 and 14 of the Canada Elections Act; they deal with the Chief Electoral Officer. Those sections read as follows:
[Translation]
13.(1) There shall be a Chief Electoral Officer who shall be appointed by resolution of the House of Commons to hold office during good behaviour. He or she may be removed for cause by the Governor General on address of the Senate and House of Commons.
(2) The Chief Electoral Officer ceases to hold office on reaching 65 years of age.
[English]
In other words, the Chief Electoral Officer can be removed by order in council. He or she is allowed to function until age 65, more or less on the same basis as a judge. The Chief Electoral Officer must look independent, and be independent; otherwise, he or she would, understandably, come under attack. That person is appointed up to age 65 to help maintain the independence of the position.
I follow your reasoning from start to finish — and as you said, the bill is a model. However, there is also a way to define a model that would maintain some of the objectives that this bill tries to satisfy. It would also provide more guarantees than currently exist in the bill, especially following Senator Beaudoin's comment that, in fact, a person could be appointed for two years or three years. A government may decide to use that approach to exercise tighter control over the administration of the court.
We should not have such a facility in our system because we pride ourselves on our credible court system. Canadian judges possess the highest level of credibility of all the professions, as you know. That means that the system is good, and it means that judges are at least seen to be independent.
When we devise to create such a system to ensure suitable administrative support — the human and materiel resources — to ensure that the courts function well, those details are not included in the bill. Those must be seen as being independent.
One could use clause 5 to twist the system. When we are asked, as legislators, to deal with this and maintain the principles of the system, we almost have to become the devil's advocate and say: ``Someone would like to intervene in the system. How could you include those clauses or proposed sections?''
That is, essentially, a way to measure the accuracy of the bill to meet the objectives that we want and share. I am certain that we do not have any conflict in our goals nor those of the government. There is certainly a conjunction of will. We want to ensure that what you have, what we agree on and what all honourable senators share — the objective and independence of the judiciary — is maintained, and end with, Bill C-30. We are trying to improve the situation, not trying to jeopardize the system.
Ms Bellis: I should like to respond to your final point. I dare say with some confidence that the model we see in the new federal courts administration service is the envy of chief justices in the superior courts of the provinces across Canada. It is a model that weights the balance on the side of judicial independence so much more significantly than those models. I would suggest to honourable senators that, in terms of policy options, the debate, the points that you have raised and the identified models have comprised an ongoing discussion between the executive and the judiciary, and within the judiciary itself, for many years, ergo the Deschenes report that is 30 years old now.
This has been an active debate about the need to strike the right balance. The government chose this model, which has the full support of the effective chief justices, through an extensive consultation.
Senator Bryden: I thank the witnesses for making my job, as sponsor of Bill C-30, so much easier than I thought it would be, given the excellent questions by my honourable colleagues, Senators Grafstein and Joyal.
The Chairman: Thank you for appearing before our committee, Ms Bellis.
Senator Joyal: I understand that the witnesses have offered to obtain confirmation of the position of the justices.
Ms Bellis: I shall undertake to have a discussion only. As you can appreciate, the judiciary, with legitimate concern for its relationship with the other two branches of government, has a certain reluctance to take a stance publicly. However, I can certainly explore what might be possible. I am uncertain whether I will be able to report back tomorrow on that point because I am not sure I would be able to make the necessary contacts tomorrow morning. However, I undertake to do my best.
The Chairman: Thank you, Ms Bellis. Please do your best because we intend to do the clause-by-clause consideration of the bill at 10:47 tomorrow morning, in this room.
The committee adjourned.