Proceedings of the Standing Senate Committee on
National Finance
Issue 3 - Evidence - Meeting of September 27, 2006
OTTAWA, Wednesday, September 27, 2006
The Standing Senate Committee on National Finance met this day at 6:17 p.m. to examine the Main Estimates laid before Parliament for the fiscal year ending March 31, 2007; and to consider Bill S-201, to amend the Public Service Employment Act (elimination of bureaucratic patronage and geographic criteria in appointment processes).
Senator Joseph A. Day (Chairman) in the chair.
[English]
The Chairman: The committee is meeting today as part of our study of the Estimates. In particular, we are studying support to the federal judiciary.
Our first witness this evening is David Gourdeau, Commissioner for Federal Judicial Affairs. The Office of the Commissioner for Federal Judicial Affairs was created in 1978 to safeguard the independence of the judiciary and put federally appointed judges at arm's length from the Department of Justice. The office's mandate extends to promoting better administration of justice and promoting support for the federal judiciary.
Mr. Gourdeau is accompanied by Marc Giroux, Acting Deputy Commissioner, and Wayne Osborne, Director of Finance and Administration.
Thank you very much for being here. This is a new area for some of us, so please take some time to explain the commission to us, if you will, and then we will have questions and points of clarification.
[Translation]
David Gourdeau, Commissioner for Federal Judicial Affairs, Office of the Commissioner for Federal Judicial Affairs: Thank you, Mr. Chairman. I am the Commissioner for Federal Judicial Affairs. I am accompanied today by Marc Giroux, who is Deputy Commissioner, and Wayne Osborne, the Director of our Finance Division.
We are pleased and honoured to have this opportunity to inform you on the mandate of our office and answer questions you may have. We have been provided with a list of topics on which this committee wishes to receive information and this is what I intend to touch upon during these remarks.
[English]
Our office was created in 1978 under the Judges Act, to safeguard the independence of the judiciary and put federally appointed judges at arm's length from the Department of Justice. Our mandate extends to promoting better administration of justice and providing support for the federal judiciary.
To answer one of your questions regarding our relationship with the Department of Justice, we maintain a collaborative working relationship with the department while respecting our mandate to administer the Judges Act and safeguard judicial independence.
In accordance with section 73 of the Judges Act, the Commissioner for Federal Judicial Affairs is appointed by the Governor-in-Council, following a consultation by the Minister of Justice with the Canadian Judicial Council. As you may or may not know, the council is a body made up of all chief justices throughout the country and is presided over by the Chief Justice of Canada. Section 73 stipulates that the commissioner has the rank of a deputy head of a department.
[Translation]
I will now move to budgetary and financial matters. To begin, our budget is broken into four elements, two votes and two statutory appropriations as follows: there is vote 20 — Office of the Commissioner for Federal Judicial Affairs — Operating Expenditures; there is vote 25 — Canadian Judicial Council — Operating Expenditures.
The first statutory appropriation is for judges' salaries, allowances and annuities, annuities to spouses and children of judges and lump-sum payments to spouses of judges who died while in office. The second appropriation is the Statutory Contributions to Employee Benefit Plans.
Our office follows the normal Government of Canada's budgeting process. In August of each year, we receive from the Treasury Board Secretariat the call letter for the preparation of the Annual Reference Level Update or ARLUs. Our office receives its reference levels and, through the ARLU process, confirms the levels allocated.
During this process, adjustments to the resource levels to meet the statutory requirements are identified and proposed.
[English]
Once the ARLUs are approved, the Main Estimates are prepared and the Reports on Plans and Priorities are also drafted. The Main Estimates are tabled in Parliament by the Minister of Finance and follow the normal parliamentary approval process. The Reports on Plans and Priorities are also subsequently tabled in Parliament.
When the fiscal year is completed, the office prepares its departmental performance report. If during the fiscal year additional funding is required to meet our operational needs, a Treasury Board submission is prepared and submitted for consideration. If funding is approved, the funds are obtained through the supplementary estimates process. That process would only apply to resources needed for votes 20 and 25.
As to judges' salaries, allowances and annuities, and annuities to spouses and children of judges and lump-sum payments to survivors of judges who die while in office, since these are statutory obligations, funds required for these reasons will be received through the statutory process.
With regard to the role of Parliament in determining and overseeing the support provided to the judiciary, our office is a department of the federal government and accordingly must adhere to all Treasury Board and other government policies. Our office has developed controls and procedures to ensure that all payments issued to judges are authorized pursuant to the various provisions of the Judges Act. Although the controls we have in place are not specifically governed by the Financial Administration Act, they have been developed based on the established structures that are in place to meet the requirements of the FAA.
We currently have established guidelines relating to expenses incurred by judges. For travel, for example, judges are entitled to be reimbursed for actual and reasonable expenses incurred. Judges are entitled to travel business class, but they are encouraged to fly economy class, and in fact most do so.
The maximum amount reimbursable for hotel accommodations is $150 per night and the maximum amount reimbursable for meals is $85 per day. In the event of special circumstances, judges will be reimbursed for expenses incurred in excess of these guidelines, but this requires either prior notification or a letter explaining the special circumstances.
Internally, since the office was created more than 25 years ago, the funding levels provided by the Treasury Board have been allocated to the various divisions and have essentially remained static aside from increases provided to meet salary increases and funds received to meet specific requirements which have been approved by the Treasury Board Secretariat.
While we conduct mid-year reviews of our budget, the directors of the various divisions have come to expect what their funding levels will be and are charged with the responsibility to allocate these resources to best meet the needs of our clients.
If a special requirement were requested by the judiciary and funds could not be reallocated internally, then a Treasury Board submission would be completed and funding would be requested. Our ability to respond to the special requirement would be contingent on receiving the required resources.
[Translation]
Now, let me move on to the activities we carry on in our office. The services and support our office provides to the judiciary stem from the Judges Act. At the present time, there are 1,045 federally appointed judges that are active; our services also extend to retired judges of which there are now 400 as well as to judges' survivors of which there are 350.
I will first present an overview of these activities and then for those activities I was told you would like further information, I will provide more detail.
One of the main roles and responsibilities of the commissioner is to act on behalf of the Minister of Justice in matters related to the administration of Part I of the Judges Act, which deals with the terms of appointment, age limit and salaries applicable to federally appointed judges. These are matters dealt with by our finance and human resources divisions.
The office also has an appointments secretariat which administers 16 advisory committees responsible for evaluating candidates for federal judicial appointment. For the last appointment to the Supreme Court of Canada, our office was also given additional administrative mandates. The Federal Courts Reports division of our office is responsible for selecting and publishing Federal Court of Appeal and Federal Court decisions in both official languages. We also have an intranet called JUDICOM, which provides judges with e-mail, a secure, restricted-access conversation system and a virtual library. For judges wishing to better their skills in either English or French, we have a language training program.
We play a role in the coordination of initiatives related to the Canadian judiciary's role in international cooperation, which I will talk about in more detail. Finally, we support the work of the Judicial Compensation and Benefits Commission, and I will also come back on this point.
[English]
Let me return to the activities you have asked me to focus on. The first was judicial compensation. The Compensation, Benefits and Human Resources Division handles the duties and functions conferred by the Judges Act to the Minister of Justice for the application of Part I, and this must be handled by the Commissioner for Federal Judicial Affairs pursuant to section 74(1) of the act. For instance, the commissioner must administer all matters pertaining to the payment of salaries to judges; all matters pertaining to the payment of pensions to retired judges and to the beneficiaries of retired judges; the files pertaining to insurance regimes created by the government — for instance, medical and hospitalization insurance — covering judges and their beneficiaries; matters pertaining to the resignation or the retirement of judges; all matters pertaining to judges who decide to become supernumerary judges or to chief justices who decide to become puisne judges. The commissioner must also communicate on behalf of the minister with judges in relation to all matters mentioned herein above.
I often joke to new judges that they will be with us even after they have passed away or have gone to the grave and beyond. The process is briefly as follows: To begin with, one must presume that there is a judicial vacancy. The minister, or his or her advisor, asks us to prepare the documents pertaining to an appointment. Our office then confirms that the proposed candidate is eligible. We prepare the submission that must be signed by the minister and draft the Order-in-Council. Once signed, the package is sent along to the Privy Council Office. When the Order-in- Council is signed by the Governor General after its approval by cabinet, a file is opened for the new judge. We collect all required additional information and immediately start paying his or her salary.
At present, the annual salary of federal judges is set at $231,000 for puisne judges. This does not include Supreme Court judges and chief justices of the various courts.
As you may also know, Bill C-17, which is currently being examined by the House of Commons, proposes to amend the Judges Act and raise the average judicial salary to $244,700 a year.
When a judge retires, the same Order-in-Council process is followed and, when it is signed, our office is then able to start paying the retired judge his or her pension, the amount of which is two thirds of that of the regular salary at the time of retirement. When a judge dies, again an Order-in-Council must be made to grant a pension to his or her survivors.
[Translation]
The second activity of our office I was asked to focus on is international cooperation. Since early 1995, our Office has been actively involved in promoting and facilitating participation by members of the Canadian judiciary in international cooperation projects and initiatives. Canadian judicial and court systems are considered to be among the best in the world and this is why foreign judges always were and continue to be increasingly more eager to have access to Canadian judicial expertise and know-how.
In 1996, the Chief Justice of Canada and the Minister of Justice mandated our office to coordinate initiatives related to the Canadian judiciary's involvement in international technical cooperation. Since then we have implemented several judicial and court reform projects in Ukraine, Russia, Ethiopia and China.
Currently, our office is involved in the implementation of the second phase of the Canada-Russia Judicial Partnership Program, scheduled to last until 2009, and is partnering with the National Judicial Institute on the delivery of the five-year Canada-China Judicial Linkages Project.
Another four-year judicial partnership project with Ukraine has just been approved by CIDA. In addition, our office continues to respond to requests from foreign governments and the judiciary for access to Canadian judicial knowledge and expertise in the form of shorter information-sharing sessions.
To accommodate these requests, we have organized numerous condensed programs for visiting delegations from other countries including India, Pakistan, Chad, the Philippines, Rwanda, Japan, Singapore, Jamaica, Azerbaijan and Georgia.
All these international projects have been or are being funded by the Canadian International Development Agency.
[English]
The third activity of our office that you have asked me to focus on is the Judicial Compensation and Benefits Commission. I will be brief on this point as the support we provide to the commission is limited. As you know, every four years a Judicial Compensation and Benefits Commission is struck to study judicial compensation and provide recommendations to the government. Bill C-17, which is presently before the House of Commons, stems from the recommendations of the latest commission. While the commission is made up of three members, one nominated by the judiciary, another by the government and a third by the first two members, the commission requires a secretariat to provide administrative services.
Our office supports the operation of the secretariat. This includes the provision of office space, furniture, and computer equipment — both hardware and software; and it includes access to our internal email communications network, accounting, purchasing, contracting, telecommunications and website maintenance. We also distribute copies of the final report to all members of the judiciary and to any other interested parties. In addition, our office will provide responses to questions for statistical information on the judiciary as well as responses to questions on administrative practices and support provided to the judiciary.
After the completion of the commission's work, we maintain the office space, equipment, files and documentation in a separate, secure, area in our offices. We monitor, and respond to, questions asked, and we forward requests for information from the commission to either the chairperson or the executive director of the commission. If the Minister of Justice requests that the commission undertake other duties, we will again support the members of the commission through the provision of administrative support, as I have just mentioned.
I hope I have provided the information you requested and that I was not too long. I think I stayed within the 15 minutes. Obviously, we would be pleased to answer your questions, especially if they are easy.
The Chairman: Mr. Gourdeau, I cannot guarantee that all the questions will be easy, but I do appreciate your having prepared the speaking notes beforehand so that our translators were able to follow your quick read through the speaking notes.
Senator Cools: I do not know if, as commissioner, you have ever had an opportunity to review the debates on the last set of bills in respect of judicial compensation, or if you have ever been apprised of the many concerns expressed in the Senate when the judicial compensation commission was being made a permanent institution. Prior to that it used to be appointed and it was an entirely new process every time. In 1998, it was enfolded into the ambit of the Judges Act.
My first question has to do with the control of the public purse and the fulfillment of the constitutional requirement that the salaries of judges be charged to the Consolidated Revenue Fund. Just let me put that on the record. I shall read section 100 of the BNA Act, Constitution Act, 1867.
The Salaries, Allowances, and Pensions of the Judges of the Superior, District, and County Courts (except the Courts of Probate in Nova Scotia and New Brunswick), and of the Admiralty Courts in Cases where the Judges thereof are being paid by Salary, shall be fixed and provided by the Parliament of Canada.
If you drop down to the bottom of that page, footnote number 54 tells us that that is now provided for in the Judges Act. In other words, the Judges Act has one purpose, which is the fulfillment of the constitutional requirement under section 100. For quite some time into the history of Canada after Confederation, the judges' salaries were fixed by individual acts. I believe that it was around 1905 that someone suggested creating a Judges Act that would do all of the salaries of the judges in one shot.
One of the concerns expressed in the Senate in 1998 during those debates concerned the wording of section 53(1) of the Judges Act, which I will put on the record. It states:
The salaries, allowances and annuities payable under this Act and the amounts payable under sections 46.1 and 51 shall be paid out of the Consolidated Revenue Fund.
There was a great concern that that section of the Judges Act had been expanded over the years to include all manner of salaries, which was not the intention. In other words, the intention, if you go to the origin of that section, was clearly ``the salaries of the judges.'' Right now, it is just ``the salaries under this Act''; so it could be any salary. From the point of view of parliamentary control of the public purse, there has been a lot of discussion over the years about this, especially in respect of the compensation commissions.
I would like to read to you an opinion that was given to the Judicial Council some years ago by Professor Hogg in reference to section 100, on the phenomenon of the fixing of salaries by Parliament. In the Constitution, the word ``fix'' has a definite meaning and the word ``provide'' has a definite meaning. I was never able to get a copy of his opinion, but a section of it, a quotation, is recorded in Martin Friedland's book, A Place Apart: Judicial Independence and Accountability in Canada.
The concern at the time was the real role of Parliament in these salaries. Professor Hogg said:
...the inaction by Parliament is insufficient participation in the process to enable one to say that the salaries have been fixed by the Parliament. It seems more natural to say that the salaries have been fixed by the tribunal, and left undisturbed by the Parliament.
There is a body of thought that the recent process as it has developed, and as it mushroomed in 1998, is flawed; as you know, the 1998 act was driven by the Supreme Court of Canada's decision in the P.E.I. case with respect to judges' salaries, and many of us thought at the time that there was something very wrong with a lot of that. It is a basic common law principle that a man should not be a judge in his own case.
The government at the time said they were creating this compensation commission because the court said that they had to. The background is all there. There was a huge, robust debate on all of this.
The days are long over when, as a commissioner, you or anyone has to work hard to obtain applications or interest in being appointed as a judge. Those appointments represent significant increases in salary. My real question to you has to do with these constitutional requirements and the role of Parliament. In your opinion, and in the opinion of the office that you hold, in a parliamentary sense, is the current regime for bringing forth these recommendations for salaries consistent with the constitutional requirement that the salaries of judges be fixed and provided by the Parliament of Canada?
Mr. Gourdeau: I am not in a position to give you an opinion. With the position I hold, I am not in a position to give an opinion as to what the construct of the act presently is. The mandate our office has is to administer Part I of the Judges Act. We presume that what was adopted by the House of Commons was validly adopted and we administer it accordingly.
Senator Cools: I was hoping that you would not be so frugal in your answer. The development of this system of remuneration for the judges was charged to statutes for reasons that were seriously political and constitutional. An entire scheme was worked out and now the salaries of judges are being determined with little reference to Parliament. At the end of the day, a bill arrives in the chamber and MPs are basically ordered under the system of party discipline to pass it, or else.
The system even reached the stage where the exaggeration was appalling, such that even the salaries of MPs were tied to the salaries of judges for a period of time. What are your thoughts on this constitutional diversion or deviation in the way that the salaries are being fixed. The idea of a permanent commission was to drive the nosy, questioning members of parliament out of the process and into the back seat in the phenomenon of deciding salaries.
The Chairman: Senator Cools has made her point. Mr. Gourdeau feels that he cannot add anything to what he has said.
Senator Cools: I had discussions with some of the predecessor commissioners so I quite understand. It is a serious point. Most members do not know much about the implications of the political and constitutional requirements and votes of confidence.
Senator Mitchell: Could you tell me whether this latest proposal, a reduction of the commission's proposal, will be retroactive?
Mr. Gourdeau: My understanding is that in the last go-round it was passed after the date and was retroactive.
Senator Mitchell: It is a critical question, because the commission's recommendation was that it should be 10.8 per cent, retroactive to 2004, but I am not certain that this 7.25 per cent is retroactive.
Mr. Gourdeau: My understanding of C-17, as it reads, is that it would be retroactive, although the eventual outcome is another story.
Senator Mitchell: Has it been common practice for government to alter or disregard the recommendation, or is this the first time?
Mr. Gourdeau: With the quadrennial commission, under its present set-up since 1998, I believe this is only the second one.
Senator Mitchell: This is the first time?
Mr. Gourdeau: To my knowledge, yes.
Senator Mitchell: I am interested in the whole process of government rejecting it. Clearly, you cannot be political, but I guess I can be to some extent. I am concerned that the commission is not set up frivolously, and that it is set up with strong people who have undertaken a broad, detailed review of what the judiciary's pay should be; it is obvious that much hangs on this pay, that this is a critical question to judges and, ultimately, affects the kind of level of judges that we attract to the judiciary, which is critical to Canadians. Canada has been blessed with a remarkably successful, fair, internationally renowned and envied judiciary. For the government to then take a recommendation of this commission and reduce it by 30 per cent is significant. How is it that this government has come to the conclusion that judges should be paid less? I guess you cannot comment on their judgment in that respect, or can you? Are you aware of the impact, in an academic study sense, that this will have on our ability to attract to the judiciary?
Mr. Gourdeau: Our office has not studied that impact. You are right, senator, I am not in a position to comment.
Senator Cools: The government is absolutely correct.
Senator Mitchell: Do you have an assessment of what a senior member of the bar would reasonably expect to earn?
Mr. Gourdeau: It would depend on the location in Canada, and whether the individual was a senior in a big or small firm, or a partner, or a solo practitioner. It varies widely across the country.
Senator Mitchell: It cannot be more than what they are getting paid as judges.
Mr. Gourdeau: It varies widely. I would recommend that you take a look at the commission's work, because I believe that issue is dealt with in their hearings.
Senator Di Nino: Is the information provided to the committee correct in stating that the recommendations of the commission are not binding and that, in effect, the government has the last word?
Mr. Gourdeau: I do not know whether the recommendations are binding.
Senator Di Nino: I wanted that on the record.
The Chairman: Perhaps you could put that question to the next witness.
Mr. Gourdeau: Representatives of the Department of Justice and/or the Minister of Justice could answer that question for you, senator.
[Translation]
Senator Fox: The committee members are glad to welcome you here today. Your work in supporting an independent judiciary is essential to our legal system. My first question will be brief. Did your budget escape the series of cuts announced by the government this week?
Mr. Gourdeau: Yes.
Senator Fox: Do you regularly meet with the Canadian Judicial Council?
Mr. Gourdeau: The council has two general meetings a year, one of which is currently going on in Montreal.
Senator Fox: And what is the purpose of these meetings of the Canadian Judicial Council?
Mr. Gourdeau: The Canadian Judicial Council's rule consists in identifying issues that concern the future of the judiciary. This could include questions about the administration of justice, which are of general interest to the federal judiciary as a whole.
There are several subcommittees working on various issues, such as penal law, intellectual property, civil law or comparative law.
Senator Fox: In your presentation, I noted that you are not a part of the Department of Justice, but that you report to the Minister of Justice.
Mr. Gourdeau: That is right.
Senator Fox: Do you consider yourself as a channel of communication between the Canadian Judicial Council and the Minister of Justice?
Mr. Gourdeau: That depends on what you mean by channel of communication.
Senator Fox: Do the recommendations of the Canadian Judicial Council go through you before going to the Minister of Justice?
Mr. Gourdeau: No. The council makes its recommendations directly to the Minister of Justice.
Senator Fox: In light of recent discussions with the council, what sectors in your office should make changes or be more efficient?
Mr. Gourdeau: In general, the judiciary seems to be satisfied with the services provided by our office. Concerns are constantly coming up. They have to do with vacations and the salaries and training of judges. These are the usual issues that the council is interested in.
From a broader perspective, there are also issues like the independence of the judiciary and how to maintain it.
Senator Fox: Have issues been raised regarding the independence of the judiciary?
Mr. Gourdeau: No, this is more of a constant concern. Canada is one of the rare countries that has a relatively independent judiciary. You need only visit other countries to see how independent our judiciary is.
This is something that was won by hard struggle over the years, but it is also something that Canada should not necessarily take for granted.
Senator Fox: Regarding refundable expenses, the amount of $150 a day for accommodation does not seem to be very much. How did you manage to find such reasonably priced accommodations for our judges?
Mr. Gourdeau: The judges are reasonable and they have been flexible. Depending on the time of year and the city, sometimes they cannot find suitable accommodations for $150. In such cases, we asked them to advise us beforehand or to give us an explanation when they hand in their expense sheet. But in several parts of Canada, the amount of $150 a night for accommodation is rather high. It might seem that this is not enough for some of the large urban centres, but it is enough in other places.
Senator Fox: Do the justices of the Federal Court travel more than the justices of the superior courts?
Mr. Gourdeau: This varies from province to province. Federal Court judges and justices of the Tax Court of Canada do travel quite a lot in all parts of the country. In British Columbia, judges travel a lot inside the province. In Quebec, judges in the Quebec City region travel a lot in what I call the Quebec district of appeals. It extends as far as Sept-Îles, Blanc-Sablon.
Senator Fox: Do you expect them to share rooms?
Mr. Gourdeau: No, we have nothing to do with that.
Senator Fox: This is not a large amount in the current situation in Canada and in the large cities of our country. If they have to send you an application for an exemption each time they travel to Vancouver, Toronto or Montreal, perhaps you should revise this figure upward.
Mr. Gourdeau: Let me say that our rule has not yet become the exception. We gave you this information as an example, but it is constantly being revised.
Senator Fox: What role do you play in appointing judges? You said that you have a secretariat; the term used in English is:
[English]
...the minister's 16 advisory committees responsible for evaluating candidates for federal judicial appointments.
[Translation]
Mr. Gourdeau: These committees were struck in 1988 to allow the Minister of Justice to get advice from people in various regions so that the appointed members of the said committees can evaluate the candidates. Currently, a lawyer is working full-time as secretary for the various committees. The people who sit on these committees do it pro bono, for free, and evaluate the various candidates. We are also expected to screen the applications upon arrival to ensure that they meet the regulatory requirements. Those who want to be candidates for judicial positions can visit our Internet site, they can call or write to our office to get application forms for judicial appointments.
Senator Fox: Do the appointments involve a security check? Is the screening done through your office?
Mr. Gourdeau: It is not done through our office.
Senator Fox: Who does the check?
Mr. Gourdeau: To my knowledge, the minister's office does.
Senator Fox: You talked about judges' pensions. You did not talk about the pensions of judges' widows or widowers. How much is it?
Mr. Gourdeau: The regular system allows for the surviving spouse to draw half the pension. However, under the new system established a few years ago, a judge can draw less so that his or her surviving spouse may draw an increased pension.
Senator Fox: In your budgets, are there sums which are not completely spent, year after year?
Mr. Gourdeau: No, to the extent that that is possible.
Senator Fox: Do you use up your entire budget?
Mr. Gourdeau: Normally, we use up all of the amounts.
[English]
Are we off by a few dollars?
Wayne Osborne, Director, Finance and Administration, Office of the Commissioner for Federal Judicial Affairs: The statutory numbers in the Main Estimates are an estimate based on our experience. We are generally within a million dollars.
[Translation]
Senator Fox: If I understand correctly, if I look at the statement made by the Minister of Finance and the President of the Treasury Board, you are an exception because your office does not make any ``wasteful expenditures'' and there is no need to eliminate the surplus.
[English]
Mr. Gourdeau: We hope so.
Senator Downe: Just to follow up on Senator Fox's question, how long does a judge have to serve to qualify for the pension?
Mr. Gourdeau: It falls under what we call the rule of 80, which is 15 years on the bench plus their age. If the total comes to 80, then they have access to the pension. There are a few wrinkles in the act, and I do not want to get into too much detail. If I were to give you the rule of thumb, it is 15 years plus the age of 65.
Senator Downe: If they quit after two years, they are not eligible?
Mr. Gourdeau: They would get a return of contribution. After a certain level, it would be prorated. It depends on the number of years of service. It is explained in the act, but since I am a lawyer by training and not an accountant, I do not want to mislead you. I will refer you to the act rather than to my explanation or interpretation.
The Chairman: Accountants would not mind misleading us.
Mr. Gourdeau: I am not saying that. My father is an accountant, so I would not say that. I do not have the professional capacity to explain it properly.
Senator Downe: Could you explain to the committee what ``supernumerary'' means?
Mr. Gourdeau: When a judge has reached the age of 65 — or, once again, the rule of 80 — the judge can then advise the Minister of Justice that he or she wants to elect supernumerary status, which means they continue to serve the court but on a part-time basis. They continue to draw a full salary. This status can be maintained for a period of ten years.
Senator Downe: How many years must they have on the bench before they can claim this option at age 65?
Mr. Gourdeau: It is a function of their age. There is an additional proviso in the act whereby if someone were appointed at the age of 64, they could not elect supernumerary status. If my memory serves, they must have been on the bench for at least ten years.
In other words, by the way the act is structured one could not be a supernumerary judge longer than one could be a full-time judge.
Senator Downe: If one joined the bench at age 55, then at age 65 one could retire on full salary for ten years and work part time?
Mr. Gourdeau: You do not retire. You must still fulfill your judicial functions. Actually, a number of supernumerary judges continue to work close to full time.
Senator Downe: Are there others who obviously do not?
Mr. Gourdeau: I imagine you would have to ask the Chief Justices in order to get a correct estimation of that.
Senator Downe: It seems to me there is a fog in the process of the judicial review committee in that the committee members are highly recommended or not recommended, but the lawyers applying are not advised of the result. Is that correct?
Mr. Gourdeau: Yes.
Senator Downe: Why is that?
Mr. Gourdeau: For a brief period of time they were. This was before I became commissioner. This is an advisory process. It is not a statutory obligation on the minister's part.
When they were advised of the results, surprisingly those who did not make the grade all of a sudden wanted to take the committees to court and make the whole process judicial. Since this was an advisory process, it was deemed at the time that the result would not be communicated to the candidates.
Senator Downe: Did the government make a commitment that they would not appoint anyone who was not recommended or highly recommended?
Mr. Gourdeau: Yes.
Senator Downe: It is, in effect, binding on the government?
Mr. Gourdeau: To my knowledge, yes.
Senator Downe: Yet you have candidates who have failed and could be under the impression that they have passed?
Mr. Gourdeau: That is possible.
Senator Downe: They are doing all the things they should be to be appointed judge, yet they will never be appointed?
Mr. Gourdeau: That is a possibility.
Senator Downe: I think it is more than a possibility. Everyone who applies is over 18. We do not always get everything we want in life. Why are they not advised as to the results?
Mr. Gourdeau: Apparently, some of them were acting as if they were 18.
Senator Downe: The ones acting that way were appointed?
Mr. Gourdeau: Not if they were not recommended.
Senator Downe: The current Minister of Justice, Vic Toews, when he was in opposition, was critical of the process to appoint judges. He was on the public record stating the same. Has he made any changes since he has been minister?
Mr. Gourdeau: To my knowledge, no.
Senator Downe: Therefore, the new government has made no changes in the process that has been in place for the last number of years?
Mr. Gourdeau: No. There was one change that I think began under the previous government and was then amended, and that was for the Supreme Court appointment process, not for the other federal courts.
Senator Downe: With respect to the last comment, the witnesses may or may not be aware of this information. I am wondering if they could find out.
I should like to know about the growing discrepancy between the pay for the members in the House of Commons and the judges. I understood that in the 1960s, members of the House of Commons received a higher salary than judges, but now they are considerably lower. They are in a position of trying to be re-elected, and it is obviously not popular to speak out for additional funding for them. I am referring to them and not to the Senate. There seems to be a major growth in the salary for judges that has not been the same for MPs. Are you aware that the salaries were at one point very similar?
Mr. Gourdeau: Anecdotally, but I cannot say I researched the issue. It seems to me that they would have been close to the same or even a bit higher.
Senator Downe: Now judges are about $100,000 more.
Mr. Gourdeau: You know the figures better than I do.
Senator Nancy Ruth: My questions relate to the size and the kind of the judiciary.
Who determines the number of judges needed in the federal judiciary to meet reasonable demands? Where are we today in terms of supply and demand? How does that all that happen?
Mr. Gourdeau: On that particular issue, I will defer to Ms. Bellis; she will be able to answer that.
Senator Nancy Ruth: Who is responsible for the long-term planning function of federal judges with respect to the rate of retirement, and who is coming and who is going? Are there peaks and valleys in that?
Mr. Gourdeau: I can answer part of your question.
Senator Nancy Ruth: I also want to know what the pattern will be for the next 10 years, if there is a pattern.
Mr. Gourdeau: It is very difficult to predict the future. However, if we are to go by the recent past, and I have been commissioner for just under five years now, on average there are 50 to 60 retirements every year and 50 to 60 appointments every year. It has been fairly stable.
There are some provisions in Bill C-17 that might cause, not a flurry of retirements, but a little bump in the number of retirements. If Bill C-17 is adopted as it presently stands, some people will be able to retire a bit earlier or elect supernumerary status earlier, and that will create some vacancies. Otherwise, it has been fairly stable in the last 10 years.
Senator Nancy Ruth: Is the office of the Commissioner for Judicial Affairs covered by the federal government's employment equity plan, and how is employment equity in the commission related to federal judicial appointments?
Mr. Gourdeau: Our staff is covered by that act; judicial appointments are not.
Senator Nancy Ruth: Do we know why?
Mr. Gourdeau: I am not the person who can answer that question.
[Translation]
Senator Chaput: I would like to talk about how judicial candidates are assessed. In your presentation, you say that there are 16 advisory committees throughout Canada. These committees are supported by the nominations secretariats to which you provide administrative services.
How are the members of this committee chosen? How is the chair of the committee chosen and how are candidates evaluated?
Mr. Gourdeau: The Minister of Justice appoints the members in consultation with different groups or individuals. Based on memory, I will try to explain the process.
First, the committees are struck on a geographical basis. There is one committee per province and territory — the two exceptions being Quebec and Ontario, because of their respective populations. There are three committees in Ontario and two in Quebec.
The committees are struck as follows. There are seven members per committee, including a representative of the judiciary. The minister appoints this person in consultation with the chief justice of the province. There is also a representative of the Attorney General or of the Provincial Minister of Justice. There is a representative from the provincial Bar, a representative from the Canadian Bar and three members appointed by the minister.
Senator Chaput: What about the chair of the committee?
The chair is appointed once the committee has been struck. In the majority of cases, the judiciary representative is the chair, but I have seen committees that are chaired by someone other than a member of the judiciary.
Senator Chaput: If I understand correctly, these people evaluate candidates, and then put forward a recommendation to the minister. The committee does not appoint anyone.
Mr. Gourdeau: Indeed, the committee does not appoint anyone. It can happen that the group is unable to recommend someone. In other cases, a candidate may be highly recommended or very highly recommended.
Senator Chaput: Are the basic criteria given to each of these committees, or does each committee decide on its own criteria?
Mr. Gourdeau: The basic criteria are given them. Obviously, we are looking for certain skills. In fact, on our website, we highlight the skills and qualities we are looking for in judges.
We are talking about committees that are struck province by province. We know that Canadian provinces share certain similarities and certain differences. As such, there are sometimes regional differences as to the most desirable skills and abilities.
Senator Chaput: For example, if I were to apply, and if after two years I was not appointed, would I have to restart the entire process from the beginning?
Mr. Gourdeau: Exactly. This provides a new opportunity to those who did not reach the required level. Sometimes, time improves things, or makes them worse. Indeed, nothing remains static. Therefore, candidates must be reassessed.
[English]
The Chairman: Once an applicant for a judicial appointment has been rated by a local group, who keeps that list? Do you keep that?
Mr. Gourdeau: The reports of the committees are sent to our office, and we send them along for the minister's eyes only. It is up to the minister as to what he or she does with the list afterwards.
The Chairman: On page 4 of your presentation, you state the following:
To begin, there is a judicial vacancy; the Minister or his adviser asks us to prepare the documents pertaining to an appointment;...
Therefore, when the minister has picked out a name, he asks you to proceed with the paperwork for the appointment.
Mr. Gourdeau: He asks us to prepare a draft Order-in-Council.
The Chairman: We do have another witness coming on this very point, and she is Ms. Judith Bellis, General Counsel, Judicial Affairs, Courts and Tribunal Policy, Department of Justice. If you have a question that specifically pertains to Mr. Gourdeau and his submission, let us go to the second round. If not, please hold your question for the next level.
Senator Cools: I believe only he can answer this question. I have no doubt that Ms. Bellis will also know the answer, however.
In 1996, the then commissioner of judicial affairs was in charge of a bill, namely, the Judges Act. In the lexicon, they call it the ``Lamer amendment, the Strayer amendment and the Arbour amendment.'' As a result of that, section 56 of the Judges Act was amended to provide special exemption for Madam Justice Louise Arbour. It is an unusual thing for an individual to be named specifically in a general statute.
Since the provisions are now spent, as commissioner, do you have any plans to repeal those provisions?
Mr. Gourdeau: I think that it will be up to Parliament to decide that. Quite honestly, I do not remember seeing anything in Bill C-17 to have them removed.
Senator Cools: They are spent. She is no longer on the bench.
Mr. Gourdeau: I am not up very much on parliamentary procedure, to be quite honest.
Senator Cools: You are saying that you are not in charge of this because your predecessor Mr. Goulard was; I know because I met with him on that.
The Chairman: On behalf of all senators present, Mr. Gourdeau, Mr. Giroux and Mr. Osborne, thank you very much for being here. If we have other follow-up questions, now that we know one another, perhaps we could send a note along to you and you could help us. Your comments and answers to the questions have been very helpful.
We now welcome Ms. Judith Bellis, General Counsel, and Ms. Adair Crosby, who is Senior Counsel, Deputy Director, Courts and Tribunal Policy; both are with Justice Canada.
Judith Bellis, General Counsel, Judicial Affairs, Courts and Tribunal Policy, Department of Justice Canada: Thank you very much. If senators agree, I propose to provide a brief overview of the role of the judicial affairs section of the Department of Justice in relation to judicial compensation issues generally. I will then make every effort to answer any questions that senators may have. I will also undertake to follow up and provide additional information that I might not be in a position to provide today.
The Chairman: Ms. Bellis, did you provide us with something that we can follow beforehand, any written documentation?
Ms. Bellis: I have only my notes, which I think have been provided to the interpreters.
The Chairman: Perhaps they have not been translated.
Ms. Bellis: The judicial affairs section of the Department of Justice, which I direct, is part of the public law sector. Our section provides expert legal and policy advice to the minister, the deputy minister, the Department of Justice, central agencies — of course, the Department of Finance, the Privy Council Office, Treasury Board — and all government departments with respect to any matter that arises touching on the provincial and federal superior courts and judiciary. We also provide information and advice with respect to the lower courts as needed, but our primary focus is on the federally appointed judiciary.
On request, we do provide legal advice to the Commissioner for Federal Judicial Affairs with respect to the administration of Part 1 of the Judges Act, of which you have just had an overview.
As Director of Judicial Affairs in the Department of Justice, I manage a group of professionals, which provides support for the deputy minister and the minister with respect to all major judicial policy as well as legal issues, particularly as they arise in the parliamentary and the cabinet context.
Judicial affairs is not a large organization. The department currently comprises seven lawyers, including myself as director, and a senior social scientist and statistician. I note here that that professional capacity is of significant importance in our work in relation to the quadrennial commission process. I will be describing that later. I noticed there was some interest in some of the details. I would be happy to provide that.
Our professional capacity is, however, regularly complemented through contracts with multidisciplinary, expert advisors. These include private sector compensation specialists and constitutional academics, as needed, and through the involvement, as required, of other central agencies and justice officials. That includes litigation counsel. In terms of the central agencies, in relation to judicial compensation, Treasury Board and finance have a particular interest in the process.
I would note that my office is also the departmental liaison with all of the major judicial organizations such as: The Canadian Judicial Council; the Canadian Superior Court Judges Association; the National Judicial Institute, which provides education and training to the superior court as well as other judges; Canadian Council of Chief Judges, and a number of other such organizations.
We, in the judicial affairs section, are responsible for the development and coordination of all legislative policy initiatives that relate to the federally created courts, as well as the amendments to the Judges Act and all related subordinate legislation. My colleagues and I would provide drafting instructions with respect to regulations that would be required under the Judges Act, for example. Because it is a compensation statute, among other things, those regulations, with respect to pensions and other matters, can be extremely complicated. I refer back again to our need often for expert advice on compensation on a contractual basis; we do not have that all in-house.
In terms of judicial compensation, the director of judicial affairs and senior civil litigation counsel in the department are jointly responsible for developing and presenting the government's submission to the quadrennial Judicial Compensation and Benefit Commission. You are clearly aware of the existence of the commission, which is established under section 26 (1) of the Judges Act, to consider and make recommendations to government with respect to the adequacy of judicial compensation and benefits.
The current quadrennial commission, as Senator Cools has pointed out, replaced the earlier triennial commission process. That earlier process had been in place for more than 20 years. It also was established by the Judges Act but it differed in a number of significant ways from the current quadrennial commission. The current structure, mandate and composition of the quadrennial commission, which are set out in the Judges Act, were specifically designed to ensure, as required by the Supreme Court of Canada, coming out of the Prince Edward Island judges case, that there was a commission that was independent, effective and objective that would be established to make recommendations to government in relation to judicial compensation.
I was not intending — and the translators will now find me extemporizing — to explain in a detailed way how the commission is established and how it operates. However, I see that senators appear to be interested in knowing a little bit about that. Thus, I will quickly go through it.
The commission is established on a quadrennial basis. It must sit every four years. The commission, however, continues. As well, the commissioners continue their tenure during the four-year period in the event that issues that require their consideration arise.
Concerning one of the new elements that was introduced as a result of a strong recommendation by the Senate in 1998, the commission now undertakes its consideration of adequacy in light of four statutory criteria that are set out in the Judges Act. Those criteria include prevailing economic conditions and the current financial position of the federal government; the role of financial security in ensuring judicial independence; the need to attract outstanding candidates to the judiciary; and any other objective criteria that the commission considers relevant.
I understood that there was a specific interest in knowing about the process for the selection of the commissioners and what, if any, criteria govern their appointment. First, I should like to point out that in terms of the composition of the commission the Judges Act provides that the government nominates one member, the judiciary nominates another and, together, they nominate the chair. There are no statutory qualifications or criteria that govern the selection of the members.
In terms of the government member, while we in the department were not directly involved in the actual selection of the government members for the first two commissions, we were asked to provide suggestions for who might be considered qualified persons. In making those suggestions, we strongly recommended that it would be important to have a member on the commission with a strong background and knowledge in public administration, and public issues more broadly, someone with an understanding of the way in which finances generally in government work and the role of Parliament in relation to financing and approvals.
In fact, the government's 1999 nominee was Mr. Fred Gorbet who was a former deputy minister of finance for the federal government for 15 years and a long-standing public servant before that. Mr. Gorbet was a superb member from the government's perspective.
Some of the senators may know Ms. Greta Chambers, a highly recognized and respected journalist, among many other accomplishments, from Montreal. She was also a former chancellor of McGill University, who brought quite a considerable skill set from her range of practice. She was appointed to the commission in 2003.
That is as much as I can say specifically on the commissioners themselves.
I will quickly outline what happens. Under the act, the next commission will have to begin its process September 1, 2007. The past two commissions have proceeded on the basis that all interested persons were invited to make written submissions to the commission by a specified date. In both cases, that date was early December. Parties were given an opportunity, also in writing, to respond to other submissions.
The commission then held two days of hearings. I should point out here that it would be no surprise to note that the main interested parties are representatives for the government and representatives for the judiciary, although any other person can attend. The commission's hearings are widely publicized and the public is welcome.
Once the commission has completed receiving the evidence and the submissions from the parties, the commission closes its doors for information and commences to write the report. Under the act, the commission must deliver its report and recommendations to the government of the day within six months of commencement. The report and the recommendations must therefore come in by May 31.
What happens then is that the government considers the recommendations. It must respond publicly within six months.
Knowing that there were questions about the issue of the status of the commission report and recommendations, I can confirm that with regard to P.E.I. judges it is clear that the commission recommendations are not binding. However, the government must respond and the government must, if it chooses to vary or reject a recommendation, provide a justification which must be evidence based. Its response cannot simply be a statement of preferred policy. That response can be challenged in a court of law, if the justification is considered to be insufficient. However, once it has responded, the government must say what it intends to do in terms of amending the Judges Act. That is because any recommendations of the commission must be implemented through the parliamentary process and through the parliamentary process are available the commission's recommendations; its full report, including all of the evidence, is available. The government's response, and the justification for either full implementation or modification, is provided.
That is the basis upon which both the House of Commons and the Senate have an opportunity to say whether the commission, the government or someone else got it right or wrong.
In terms of our role in that process, we in the Department of Justice develop and coordinate all the government input, including those formal submissions to which I referred, including the government's response and the instructions for the legislative drafting and the bill. We prepare all the cabinet documentation and supporting materials, with the consideration of the policy options and legal advice. We support the minister through the whole of the parliamentary process, including providing what support may be useful to committee members in terms of our technical expert advice in relation to the process.
Perhaps senators might be interested in also knowing that my section is what might be referred to as the instructing client in any major litigation files involving the courts or the judiciary. It is always the most senior litigation counsel in the Department of Justice who works on these important issues. That would include litigation with respect to judicial compensation and benefits, in particular in the Supreme Court of Canada. The Prince Edward Island judges case was a seminal case in this area.
Most recently, in 2005, a case called Bodnar came down which clarified the standard of justification that government must meet if it chooses to vary, modify or reject a commission recommendation. It was an important case which provided an important clarification in recent case law.
Senators, I am sorry if I have spoken too quickly, and I apologize for not having provided the remarks in advance. I do hope that my colleague Ms. Crosby and I will be able to respond to your questions.
The Chairman: I suspect that you touched on many questions that honourable senators might otherwise have had.
Senator Mitchell: I have two questions, the first of which I think you will probably be able to answer and the second of which you might be able to answer but probably will not want to.
Ms. Bellis: This is not my first time before the Senate.
Senator Mitchell: This is my first time on this particular topic.
How many positions in the country need to be filled? How many are empty at this time? How is that affecting the pressures and the backlog that our judiciary is facing at this time?
Ms. Bellis: I do not have a precise number, but my understanding is that, until about two weeks ago, there were in the range of 45 vacancies. About ten days ago, 12 positions were filled. The Department of Justice has no role at all in relation to judicial appointments, so this is information that I have just because we follow the numbers. It is also my understanding that the government is intending to make further appointments in the next weeks.
Senator Mitchell: Do you have insight into the backlog of cases?
Ms. Bellis: We do not have specific information. It is not surprising that Chief Justices have expressed a real concern to ensure that their vacancies are filled so that they can get on with their heavy caseloads, but I do not have specifics.
Senator Mitchell: My second question is perhaps more a statement that I would like to get on the record. It is no secret that members of this government, prior to being members of the government and subsequent to that, have been highly critical of the judiciary in this country, I think in a way that is fundamentally inappropriate. We have heard the refrain over and over again of ``judge-made law.'' They are casting what I believe to be a very profound aspersion against judges, who are of the highest quality, literally, in the world. I think that is wrong, particularly once they are in government. You can see it in many different ways. It is not just judge-made law. They are just not getting the output that they would like to see. It is not a coincidence that this particular accusation rises in its frequency and intensity around issues like gay marriage, which I and many of my colleagues supported.
You saw it particularly some time ago in Alberta. A senior cabinet minister in this government actually drew a parallel about a lawyer acquiring certain characteristics that could be inferred from the allegations laid against his client, which is completely and utterly unfathomable, and in fact he was sued successfully for having made that accusation. He is now a senior member of government. This is a serious matter, in my mind.
When you look at the reasons for their having turned down the commissions' recommendation, and reducing it from 10 per cent to 7.25 per cent, which you can argue is not a huge amount, it is a powerful symbolic message to the judiciary that they must go with the criterion that says you have to relate these increases to the prevailing economic conditions in Canada, including the overall economic and financial position of the federal government. To that end, they say the federal government will pay off $3 billion in debt, which is how they justified cutting the percentage from 10.8 to 7.25. Yesterday, they paid off $13 billion. The financial conditions and economic conditions of this government now are very different from what they were when they made this argument, but they have volunteered not at all to make a change in the pay to the judges.
My point is that that raises in my mind further confirmation that this is not about finding some appropriate level of pay for judges, and overruling a commission which was set up independently to do that, as much as it is about saying to the judiciary, ``We are not happy with the way that we see you handling yourself. We do not like your attitude, and we are going to send you a message, however subtle it is.'' I think it is very apparent.
Perhaps we can get the minister here, and I am sure he would not agree with me when I say that the second criterion for determining the adequacy of compensation is the role of financial security of the judiciary in ensuring judicial independence. While this is not a direct affront to judicial independence, obviously it is a very clear message that comes from a government that simply does not like ``the attitudes'' of its judges, despite the fact that our judges are of the highest quality in the world, I would argue.
Finally, would you not agree that it is the role of government to support these institutions? If the highest levels of government do not support the integrity of our judiciary, of our judicial institutions and many of our other institutions, how do we expect Canadians, especially the young people who are so often picked on, to respect our judicial systems and our laws? That is a point that I want to make. Thanks for listening. If you would like to comment, that would be great.
The Chairman: Ms. Bellis, do you feel that you could reply to that?
Ms. Bellis: I am sure you would appreciate that I am not in a position to speak to Bill C-17 or those issues today. I do think those profound policy choices are ones that you would expect the Minister of Justice to speak to. I regret that I am not in a position to say yes or no.
Senator Mitchell: I accept that. Thank you.
Senator Di Nino: As tempted as I am to engage my colleague in a debate, I think we will leave that for the appropriate place, which is the floor of the Senate.
I wanted to pick up on one item that Senator Mitchell mentioned when he made a statement about the rationale that the government provided for reducing the salary increase. Do you know the rationale that was used, as the government has to provide, I understand, under the legislation?
Ms. Bellis: I did not bring the government's response, but the government's formal response is available if you are interested in seeing the specifics. It is available on the quadrennial commission website, which is www.quadcom.gc.ca. I can tell you in a nutshell that the government was of the view that some of the analytical methodology that was utilized by the commission and the commission's technical advisers gave too much weight to the salaries of senior lawyers in what were essentially the eight largest urban centres in Canada. That is a distillation of a very complex issue, but one of the fundamental issues was a difference in view as to whether there should have been so much overall weight in terms of the data in relation to private-sector legal income.
Senator Di Nino: Mr. Chairman, since Senator Mitchell put on the record his interpretation, I think it would be appropriate to have the official response, the response that the government is mandated to give, when they take these kinds of action.
We should put it on the record.
The Chairman: We have the website for that. We will see that the clerk gets that and it gets circulated to everyone and it will be deemed to be part of the record.
Senator Di Nino: Thank you. I appreciate that. I want to ask questions on the Judicial Compensation and Benefits Commission. I apologize for my voice. There is something there that probably is not functioning today.
First, the commission is a permanent entity; is that correct?
Ms. Bellis: That is correct.
Senator Di Nino: You said it consists of three members. Are they full-time employees of the commission?
Ms. Bellis: No, they are not, senator. Thank you for asking that question. The members of the commission are appointed. While they are appointed for the four-year period, I will explain why that is the case. They are only actively operating, in the normal course, during that six-month period. I should also point out that they are not by any means full-time employees during that period. They are paid per diem; again, all of that information is on the quadcom site.
I would guesstimate that there is an initial organizational meeting that usually happens in about October, when the commission meets with the principal parties and explains how it wishes to proceed. Then really, other than organizationally being together for those purposes, it does not meet again until it has some submissions, and that is in December. That is when their work really starts, in terms of their own consideration of the information. As I say, it is very complex evidence with respect to comparators for government and private sector. It is very numbers-based. I am more literate than numerate, so I just direct traffic. I make sure there are good people who can do this for us.
Then, after the parties have a responsive submission, we usually have to work over Christmas because they are in a short time frame. It is usually about mid-January that they ask for all submissions in response. The hearings themselves usually only take two days at a maximum, and that is when the commission really gets down to work and rolls up its sleeves. We are not talking, by any means, about a full-time set. We should put it in context. These people come from very busy other lives.
I should mention that Richard Drouin, who was the first chairman of the first quadrennial commission, was at the time a partner in a major Montreal law firm but had been chair of Hydro Quebec. He brought that skill set. We are talking about extremely busy people who really are doing this work very much in the public interest and demonstrate that commitment in a very significant way. Some of these people could probably command $700 an hour.
Senator Di Nino: I thought that was an important message to record, because during the discussions there may have been an impression that this is a permanent body where these three people, together with their support staff, would be there for four years, and obviously that is not the case.
A couple of other quick questions to clarify the point: They do obviously have a support staff. Are they also on call temporarily or is there a permanent secretariat for that commission?
Ms. Bellis: No, there is not a permanent secretariat, senator. There is a capacity to support the commissioners if they have additional tasks that they may undertake.
As an example, past commissioners have appeared before Commons and Senate committees to explain their recommendations and their rationale; it is anticipated that the committees may wish to hear the commissioner this time. The commissioner for federal judicial affairs would provide the administrative support that they might need for preparations for the committees and travel. However, unless there is an additional task it is on an as-needed basis. It is very much a shoestring budget.
Senator Di Nino: One other very quick question, again for clarification and to put it on the record.
Would you have some idea, over the four-year period, what this commission would cost the taxpayers of this country?
Ms. Bellis: I am sorry, I do not, senator, but we can certainly provide the details of the total cost of the 2003 commission. It is on the public record. Indeed I think it may very well be on that website. I will not guess.
Senator Di Nino: I would appreciate it if you would provide that for us. I want to thank you for your straightforward answers.
The Chairman: Honourable senators, I remind you we have some other business before the night is over. I have three names left on our committee, and I would ask you to try to ask just the questions that you must ask, and I am sure Ms. Bellis would be pleased to receive any written correspondence and questions that might flow from any of this discussion.
Ms. Bellis: We would be happy to answer any questions.
Senator Cowan: Mine was a follow-up to Senator Di Nino; just a small point.
Is the member of the commission who is nominated by the judiciary normally a judge?
Ms. Bellis: No, it is not a judge. In fact, it might be a former judge, senator, but I think it would be considered quite inappropriate to have a judge sitting in that kind of function.
Senator Cools: I would like to thank Judith Bellis for coming before us. She is a delightful witness and very pleasant and very open and also very knowledgeable. I thank you for coming.
Ms. Bellis: It is always a pleasure to be here, senator.
Senator Cools: My colleague across the way is labouring under some misapprehension somehow or other that the government is acting improperly in how it is approaching the question of judicial compensation, but I can deal with that on another occasion.
My question has to do with the 1997 case, Supreme Court of Canada, Ref. re Remuneration of Judges of Prov. Court of PEI, 1997. If you will recall, Ms. Bellis, you have just outlined the position as it was outlined by Mr. Justice Lamer that, first of all, the commissions are required and that governments are constitutionally bound to go through a commission process. Would you be so kind as to put on the record the other opinions expressed by the judges, particularly by Mr. Justice La Forest, on that issue? He was pretty strong in his opposition to it.
Ms. Bellis: It is true that there was very strong dissent from Justice La Forest who felt that, as I recall it, not only was the view of the majority likely inconsistent with the overall backdrop against which compensation had been established but was probably, from a practical perspective, not a very good idea.
Senator Cools: If I may say so, Mr. Justice La Forest spoke very strongly and was obviously quite distressed. He said that ``requiring commissions, a priori, is tantamount to enacting a new constitutional provision,'' which is one of the points that I keep raising. He continued, ``Judges, in my opinion, are capable of ensuring their own independence by an appropriate application of the Constitution.''
He said a lot more. This is just a summary, but I thank you very much for knowing the case so well and for putting it before us.
I am not too sure of the overlap or the interaction, as it is now, between your shop and the commissioner's shop based on my last question. Are you in charge of the drafting of all this legislation?
Ms. Bellis: We do not draft. We work with the legislative drafters.
Senator Cools: However, it comes out of your shop, does it?
Ms. Bellis: Yes.
Senator Cools: Are there any plans to repeal the sections in section 56 of the Judges Act in respect of former justice Louise Arbour.
Ms. Bellis: I am not aware, senator. As you pointed out, those sections are spent and, as a technical matter, I would expect that the next opportunity for statutory consolidation it would be removed, but I cannot admit to being an expert on how that would work. I could certainly make that inquiry of our director of legislative services.
The Chairman: Could you do that and provide it to our clerk?
Ms. Bellis: Yes. It is an interesting question.
Senator Cools: I am sure you know the background.
Ms. Bellis: I remember it very well, senator.
Senator Cools: Four Order-in-Councils later and you still know the background. You are very knowledgeable. Thank you.
Senator Nancy Ruth: You are the first people from the Department of Justice I have had a chance to talk to in 24 hours, so I must ask this question, good women: What role, if any, did the Department of Justice have in making a recommendation for the cancellation of the court challenges fund? By hearsay or any say, do you know?
Ms. Bellis: Senator, I was as shocked as anyone else when I read the news release, but I do expect that the minister received advice with respect to the Law Reform Commission before a decision was made.
Senator Nancy Ruth: Was that from your department?
Ms. Bellis: It is the sort of issue that I am sure the Deputy Minister of Justice would have been consulted on. I would not even hazard a guess what his advice would have been.
Senator Nancy Ruth: I am just learning the ropes. I wonder how it happens.
Senator Downe: Mr. Chairman, my question is really directed to you. The minister picks judges from a list provided by judicial review committees, regardless of which party is in power. Party supporters end up as judges, federally and provincially. They are appointed to age 75. They are obviously political appointments. Have you heard if this government is planning to reduce the term for judges to eight years?
Senator Cools: You are catching on to the constitutional relationship.
The Chairman: With that rhetorical question we will finish. Order, please. Thank you very much, Ms. Bellis and Ms. Crosby, for being here. We may well have some follow-up questions, as I have indicated, in which event you will be hearing from our clerk or me.
Ms. Bellis: We are very happy to provide whatever additional information the senators might wish.
The Chairman: Wonderful. Thank you very much. We will now proceed with Bill S-201.
Honourable senators, you will have had distributed to you a letter from Maria Barrados, who was here yesterday. She is President of the Public Service Commission. The letter is dated September 27 and it is responsive to certain questions that were asked of her yesterday. She indicated that legal counsel, Mr. Gaston Arseneault, would be here, and he is indeed here. You will recall he was here yesterday as Legal Counsel for the Public Service Commission.
Yesterday we did not have an opportunity to hear in rebuttal from the sponsor of the bill, Senator Ringuette, and that is what we will do at this time. Mr. David Michaud, her legal adviser, is with her at this time. The floor is yours, Senator Ringuette.
Hon. Pierrette Ringuette, sponsor of the bill: In regard to the information that has been sent to us by Ms. Barrados' office, if you look at the third page in regard to the statistics that they have gathered, these are statistics as of April 1 of this year. It is for the national area of selection. If you look at the number of applicants from the national capital area, it is 67 per cent. The note just following indicates that for regions other than the National Capital Region, Ontario and Quebec, it is 9 per cent. That is for the officer level.
If you look at the other one, which is the occupational group, 81 per cent of the applicants were from the National Capital Region and the other regions outside of the National Capital Region, Ontario and Quebec, were 5 per cent. That certainly demonstrates that with respect to the huge inflow or overload of applicants the number from all the regions of Canada, when you open up to national area of selection, is not that big. The argument of overflow of activity at the commission to deal with all of the applicants and the extra cost, as you can see from the data that was supplied to us from the office of Ms. Barrados, is not justified. If we look at national areas of selection, the argument of cost and increased overflow to deal with all of the additional applicants has just been destroyed by the office of the commission.
I am open for questions now.
The Chairman: Honourable senators heard from you and had a chance to question you yesterday. Did you have any other points before we begin questions?
Senator Ringuette: Do we have only this bill to deal with?
The Chairman: Yes, that is all we have, as well as the evidence from you and the evidence from Ms. Barrados and the people who were with her yesterday.
Senator Ringuette: That is right.
The Chairman: Are honourable senators ready to proceed with clause-by-clause consideration of the bill, or are there other questions of the sponsor before we proceed?
Hon. Senators: Agreed.
The Chairman: Is it agreed to proceed to clause-by-clause consideration of Bill S-201, to amend the Public Service Employment Act (elimination of bureaucratic patronage and geographic criteria in appointment processes)?
Hon. Senators: Agreed.
The Chairman: Shall the title stand postponed?
Hon. Senators: Agreed.
The Chairman: Shall clause 1 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 2 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 3 carry?
Senator Stratton: I have an amendment that I would like to move, and I would ask honourable senators to refer to clause 3 of Bill S-201 because I will be referring to lines within that clause.
I move:
That Bill S-201 be amended in clause 3, by replacing lines 16 to 25 on page 1 and lines 1 to 10 on page 2, with the following:
3.(1) Section 34 of the Act is amended by adding the following after subsection (2):
(3) When establishing a geographic criterion in an advertised external appointment process, the Commission shall establish a national area of selection except where, in the opinion of the Commission, it is not in the best interests of the public service to do so.
(2) Subsection 34(3) of the Act, as enacted by.
That is the end of the amendment.
There is a slight variation in the French version as to lines, but it is essentially the same amendment.
The Chairman: Does everyone understand the amendment?
Senator Ringuette: I would like to propose a subamendment to the amendment that was proposed.
The Chairman: Can we have a discussion on the amendment first, after which I will come back to you?
Senator Ringuette: Yes.
The Chairman: Does everyone understand the proposed amendment?
Senator Cowan: For clarification, Senator Stratton, is that exactly the amendment proposed by Ms. Barrados?
Senator Stratton: Essentially, yes, because, as she had explained, they are in the process of modification right now and it will need to be done incrementally over time. That was her fundamental argument.
Senator Cowan: Is it the same point that she was making?
Senator Stratton: Yes, it is the same point.
The Chairman: Does everyone understand the amendment?
There is a proposal for a subamendment, an amendment to the amendment.
Senator Ringuette: For the sake of opening the process to all Canadians as expeditiously as we can, I agree with the first lines of the proposed amendment, namely, that this would deal with the ``advertised external appointment process.'' However, I do not agree that we should leave it to the discretion of the commission to determine whether ``it is in the best interests of the public service to do so.''
I am not proposing this bill specifically to be in the ``best interests of the public service.'' Certainly, the public service has everything to gain by the bill that I am proposing. However, if we open up the system to all Canadians, there should not be any exemption, or any further discretion than the commission already has in restricting the ability of all Canadians to be a part of the public service. I agree at the current time to restrain the opening of federal jobs to the external process; however, I do not agree with continuing to leave the area of selection to the commission. If we open the process, we open the process.
As you have seen with the data that has been sent to us, there is no overwhelming flow of applicants across the country; there is no drastic increase of operational processing in the system; and there is no real increase in the cost to operate it.
Therefore, I would like to propose the following subamendment to the amendment that was proposed by Senator Stratton, as follows:
That clause 3 of Bill S-201 be amended by removing the words ``except where, in the opinion of the Commission, it is not in the best interests of the public service to do so.''
That is the amendment I would like to see to the proposed amendment.
The Chairman: It would then read:
(3) When establishing a geographic criterion in an advertised external appointment process, the Commission shall establish a national area of selection.
Senator Ringuette: Period.
The Chairman: Does everyone understand the proposed subamendment to the proposed amendment by Senator Stratton?
Senator Stratton: I can only reiterate, if I may, the point that Ms. Barrados made quite clearly; namely, that the process is in place now for change. It must be done gradually. She is asking for patience in allowing her to carry this out.
Senator Di Nino: Mr. Chairman, I am at a bit of a disadvantage, or maybe an advantage, since I was not there as part of the proceedings and as part of the debate. It would seem that what we are being offered by Ms. Barrados is a bit of a compromise, which may not necessarily please Senator Ringuette as the sponsor, but will likely not please the public service people either.
In business, when you have conflict or friction, the best way to resolve it is by having both people end up a little unhappy.
Senator Stratton has provided an opportunity to reach a compromise. We can inform Ms. Barrados that we will look at this in the near future, and if there has been no change we will come back with the hammer. It seems to me that rather than tell the people who must administer these things, and who live with this every day, that they should have no opinion in this and that we will tell them exactly how to do this — which is fair, if that is what we want to do — it would probably be best for us to accept Ms. Barrados' amendment and ensure that she understands that we will be looking at what that organization does and that, if there is not a steady improvement, we will come back within a reasonable period of time and pass another bill.
Senator Cowan: I was here the other day listening to Ms. Barrados. I took it from her evidence that this was the way in which she was wanting to move and that she was very much in favour of having, where appropriate, national areas of selection. However, she gave some very compelling reasons why in some instances and circumstances it might not be appropriate. It seems to me that, if that is the case, some person or some institution must have the discretion. I took from her evidence that this amendment that she suggested, and which our colleague Senator Stratton has put forward this evening, is something that she would welcome as a legislative support for the efforts that she is putting forward, and she would be quite happy to monitor this process which, as Senator Stratton says, takes some time.
Although this would not accomplish everything that Senator Ringuette would like to have, it would at least make it clear that, as a general rule, this is what we expect, that there should be a national area of selection. Those of us who come from areas outside of the national capital region are constantly being bombarded with the same kinds of concerns that led Senator Ringuette to put forward this bill.
I am sympathetic to the intent of the bill. I do think in the circumstances and having listened to Ms. Barrados that the amendment that Senator Stratton has put forward tonight on the recommendation of the Public Service Commission is a reasonable thing for us to do at this stage, and so I would support the amendment.
[Translation]
Senator Chaput: I was not here last week and I did not take part in all of the discussions, but I have been following Senator Ringuette's bill because I have believed in it very strongly since the beginning. Therefore, I support Senator Ringuette's subamendment for the following reasons.
In her letter, Ms. Barrados talks about some of the compromises she has made, and says that when the commission is given free rein to decide whether or not an appointment goes against the interest of the public service, things do not necessarily go well, especially if we refer to past practices such as hiring for short terms, and casual or part-time workers. We will run this risk again if Senator Ringuette's subamendment is not passed. I second this subamendment.
[English]
Senator Mitchell: I will oppose the amendment, not because Senator Cowan's arguments are not compelling and not because I was not impressed by Ms. Barrados, who is very impressive and is well intentioned and motivated, but —
The Chairman: You are opposing the subamendment?
Senator Mitchell: No, I am supporting the subamendment.
The Chairman: I will call for further comments with respect to the amendment once the subamendment is dealt with.
Senator Mitchell: My argument would be the same. I can make it now and get it over with, if that is all right with you.
The Chairman: Yes.
Senator Mitchell: The reason is that we must make progress quickly on this issue. There is no limit to how long it might take the Public Service Commission to work this through and get to the point where they actually implement it. This will mean that they have to do it. They are capable; they will find a way.
Senator Downe: I agree with Senator Mitchell.
Senator Biron: I agree.
[Translation]
The Chairman: Senator Biron is also in agreement. Are you ready to vote on the subamendment?
[English]
Senator Ringuette: We must understand that in Ms. Barrados we have a good person. She has deployed great effort. However, there are two other issues that we must bear in mind. First, Ms. Barrados will not be in her position indefinitely with her good will. Second, once this bill, with its amendments and subamendments or whatever is decided tonight, is reported to the Senate, the Senate must approve the bill at third reading. It must then be introduced in the House of Commons and go through a lengthy process there. There will be time enough for adjustments that are needed.
In the original bill we were looking at internal and external appointments. The amendment that has been proposed by Senator Stratton removes the internal process. In the spirit of negotiation, and wanting something to be done, I agree with that portion of the amendment. I have been dealing with this for 13 years, since 1993. I hope that we can provide hope for all Canadians from coast to coast to coast that they will legally have a fair chance to work in the public service for the Government of Canada. That is the only purpose of this bill.
The Chairman: I propose that we proceed with a vote at this stage, honourable senators.
Senator Stratton: Question.
The Chairman: Senator Stratton has proposed an amendment, which is before you, and a subamendment to that has been proposed. The subamendment is that in paragraph 3 of the proposed amendment the words ``except where in the opinion of the commission it is in the best interests of the public service to do so'' be struck off, if the amendment is carried.
Will all those in favour of the subamendment say ``yea.''
Some Hon. Senators: Yea.
The Chairman: Contrary minded, if any?
Some Hon. Senators: Nay.
The Chairman: Do you want a show of hands or do you agree with me that the ``yeas'' have it?
Senator Stratton: The ``yeas'' have it.
Senator Downe: On division.
The Chairman: Carried on division.
We now have an amended amendment. The amendment moved by Senator Stratton, and amended by Senator Ringuette, then reads as follows:
3. (1) Section 34 of the Act is amended by adding the following after subsection (2):
(3) When establishing a geographic criterion in an advertised external appointment process, the Commissioner shall establish a national area of selection.
If this amendment as amended carries, that would be the proposal for clause 3.
[Translation]
When establishing a geographic criterion in an advertised external appointment process, the Commission shall establish a national selection area.
[English]
All those in favour of the amended amendment say ``yea.''
Some Hon. Senators: Yea.
The Chairman: All those opposed say ``nay.''
Some Hon. Senators: Nay.
The Chairman: They were weak both ways. We will have a show of hands. All those in favour of the amended amendment, raise your right hand, please.
All those against the amended amendment?
The motion is carried.
Shall clause 3, as amended, carry?
Some Hon. Senators: Agreed.
Senator Stratton: On division.
The Chairman: Carried on division.
Shall the title carry?
Senator Stratton: I want to add another amendment, if I may. I move:
That Bill S-201 be amended, on page 2, by adding after line 14 the following:
4. The provisions of this Act come into force two years after the day on which this Act receives Royal Assent.
The Chairman: We will have comments on it. Does everyone understand the effect of the amendment?
Senator Ringuette: We are talking five years down the road. That is not fair.
The Chairman: Does everyone have the amendment in front of herself or himself? It is pretty straightforward. Do you wish to add something, Senator Stratton?
Senator Stratton: It is simply that there should be a coming-into-force date for this. The commissioner has been quite clear that she needs the time to carry out what she needs to have done. In order to be able to accomplish what she needs to do, the bill will come into force two years after the date it receives Royal Assent. I would rather do it that way because it affords the possibility of this being achieved.
In reality, if you want something to happen, you must compromise. You cannot sit back and not realize that if the commissioner is not allowed time to do that, then we are not doing her any favour at all — nor, I think, the people of Canada.
She realizes the intent of this bill; she knows what it is about. It will have been passed and received Royal Assent so that she has two years to try to do something with what you want to have done. If it comes into force immediately upon Royal Assent, then there is no reaction time allowed. It means it is there and she must immediately take action. I do not see how that can possibly happen.
The Chairman: Is there any discussion on the proposed amendment?
Senator Di Nino: I am looking at it from a different viewpoint. Senator Banks has put a private member's bill through that says, in effect, that once a bill has received Royal Assent and it sits there without proclamation for a certain length of time, you get rid of it; you must deal with it.
I think Senator Ringuette has achieved a great victory here and I congratulate her for that. What this does, on the other side of the coin, assuming that it passes the House, is that it assures that it will come into effect. If you do not have this, you could very well have some government — one that is not necessarily favourable or that listens to the opinion of the commission a little differently than we have this evening — just not proclaim it. It could sit there forever, notwithstanding.
I think this is not a bad compromise.
Senator Mitchell: I am inclined to oppose this amendment. The argument made by Senator Stratton, and Senator Di Nino as well, while interesting to me, is not compelling, to this extent: it is not as though the passing of this bill will be a surprise to the Public Service Commission. They know that this process is desired by the Senate; and ultimately it would be desired by the House of Commons, were it to be passed. They say that they are working on it. Essentially, they have a good deal of time to get it in place and this keeps the pressure on and hurries the process up.
There is still the fail-safe aspect of its having to go through the House of Commons, where it could be amended to put some other kind of deadline on it. I do not see why in the Senate at this point we would want to take the pressure off. I think there is general consensus around the table that this is a very laudable thing. It is not just about the public service here; it is about the unity of this country and the sense of equality and how citizens across the country are treated fairly. It is fundamental to the treatment of us as Canadians.
I think we should keep the pressure on. If they are working on it now, which they say they are, they still have months to do it. Let us get after it.
The Chairman: Other comments?
Senator Ringuette: I would like to state that for some of us that were in this committee when the previous government, in 2003, brought forth Bill C-25 to modernize the public service, we were given assurances many times by the Treasury Board and by the commission. Also, they have received over $40 million to update the technology to do exactly what this bill should be doing.
Because of the process that needs to occur in the other place, and not knowing whether or not it will be amended there or whether we will have to start another process in the Senate, I certainly do not agree with adding two more years to all of that before the Canadian taxpayer, especially the youth that we have in our country, will have an opportunity to apply for these positions.
Remember what Ms. Barrados said yesterday: anyone who applies for one of these jobs with a current restricted area of selection, who qualifies and is deemed to be the best candidate and is put into the position, will, if it is found out that they lied in regard to the address provided and were actually outside the geographic area of selection, be accused of fraud and lose their job. That is not right. I have been fighting this issue for 13 years and I know the process of Parliament very well, that we are looking at another year minimum. I do not agree with adding two more years to that.
The Chairman: There have been comments with respect to proclamation dates; and, in fact, this motion goes toward that. I am asking the clerk to explain the situation where there is no separate proclamation date referred to in the original bill.
Till Heyde, Clerk of the Committee: In the event that a bill does not have a coming-into-force clause, as is the case of Bill S-201 as it is currently before the committee, that is to say without amendment, a bill enters into effect upon receiving Royal Assent.
There are two other scenarios that could exist. One is to have a coming-into-force clause that provides for a date or dates to be established by proclamation to the Governor-in-Council; the other is to provide a specific date set out in the piece of legislation, which I believe Senator Stratton's amendment aims to do.
The three scenarios are: first, coming into force at the time of Royal Assent; second, coming into force at a time specified in the bill; third, coming into force on a date or dates established by the Governor-in-Council.
The Chairman: As you can see, this amendment proposes that the provisions of the bill come into force two years after the day on which the bill receives Royal Assent. This is a proposed amendment. Are senators ready for the question?
Hon. Senators: Question!
The Chairman: All those in favour of the amendment say ``yea.''
Some Hon. Senators: Yea.
The Chairman: Contrary minded say ``nay.''
Some Hon. Senators: Nay.
The Chairman: The motion is defeated. We will proceed with clause-by-clause.
Shall the title carry and shall the bill, as amended, carry?
Hon. Senators: Agreed.
The Chairman: Shall I report the bill, as amended, to the Senate?
Hon. Senators: Agreed.
The Chairman: Congratulations, I will report the bill to the Senate.
Senator Ringuette: I thank the members of this committee for their hard work. I am sure that tonight Canadians all over the country can be proud of the Canadian Senate.
The Chairman: Honourable senators, before I adjourn the meeting, I would like your approval to present a very reasonable budget. I will have Mr. Hyde speak to this briefly.
[Translation]
Mr. Heyde: Senators, the draft budget before you is for the fiscal year ending March 31, 2007, and concerns the work of this committee in its study of the Main Estimates.
[English]
The Senate referred this to committee on April 27, 2006. Senators will see the proposed expenses on page 3. A significant portion of that is the working meals, which are provided to the committee from time to time when it meets either in the mornings or late in the evenings.
Interest has been expressed in having the option to hire outside advisors in respect of particular matters, from time to time.
[Translation]
In the draft budget, we also set aside a certain amount for the committee for conferences — and you can see the breakdown of unforeseen expenses which may occur.
[English]
Senator Di Nino: First, where do you get breakfasts for the number of people at $50 and dinners at $500, which is ten times the amount? It does not seem like much.
Second, before the expensing of numbers 3 and 1, conferences, does this committee give its approval?
The Chairman: The steering committee would look at those, but no one has applied to do anything yet.
Senator Di Nino: The steering committee would approve that and not this committee.
The Chairman: The steering committee of this committee.
Senator Di Nino: Would it be reported to this committee at some time?
The Chairman: Certainly, everything is reported.
[Translation]
Senator Biron: Can these amounts be transferred? Is the budget adopted as a whole, and can certain amounts be transferred from one item to another?
Mr. Heyde: According to the administrative rules of the Senate, funds allocated to different categories of the draft budget, whether they be professional fees, transportation or communications costs, can be used in those categories. For example, the $46,500 set aside for professional and other services can be used in those same categories. We can transfer a maximum amount of $4,000 between the different categories, if necessary. Otherwise, a new draft budget must be submitted.
[English]
The Chairman: All those in favour of the budget say ``yea.''
Some Hon. Senators: Yea.
The Chairman: I will present this budget to the Internal Economy Committee.
The committee adjourned.