Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue No. 29 - Evidence - May 16, 2017
OTTAWA, Tuesday, May 16, 2017
The Standing Senate Committee on Legal and Constitutional Affairs met this day at 2:15 p.m. to consider the subject matter of those elements contained in Divisions 10 and 17 of Part 4 of Bill C-44, An Act to implement certain provisions of the budget tabled in Parliament on March 22, 2017 and other measures (topic: Division 10 of Part 4 of Bill C-44).
Senator Bob Runciman (Chair) in the chair.
[English]
The Chair: Good afternoon and welcome, colleagues, and invited guests, members of the general public who are following today's proceedings of the Standing Senate Committee on Legal and Constitutional Affairs.
Today we begin our study of the subject matter of those elements contained in Divisions 10 and 17 of Part 4 of Bill C-44, An Act to implement certain provisions of the budget tabled in Parliament on March 22, 2017, and other measures. We begin today with Division 10, which makes certain amendments to the Judges Act, and will consider Division 17 later this month.
With us today for the first hour, from the Office of the Commissioner for Federal Judicial Affairs, Marc Giroux, Deputy Commissioner; and from the Judicial Compensation and Benefits Commission, Gil Rémillard, Chair, Quadrennial Commission; Peter Griffin, Commissioner, Quadrennial Commission; Margaret Bloodworth, Commissioner, Quadrennial Commission; and Louise Meagher, Executive Director. Thank you all for being with us today. Mr. Giroux, the floor is yours.
Marc Giroux, Deputy Commissioner, Office of the Commissioner for Federal Judicial Affairs: Thank you very much, Mr. Chair. I'm pleased to be here to speak to you today with regard to the role of my office and the support that we provide to the Judicial Compensation and Benefits Commission.
I want to start very briefly speaking with regard to the role of our office and what we do. I am Deputy Commissioner for Federal Judicial Affairs. Under section 74 of the Judges Act, the commissioner is the deputy of the Minister of Justice in administering Part 1 of the Judges Act which deals with the appointment of judges, salaries, pensions, leave, supernumerary status and the like. We also provide services to the Canadian Judicial Council. We provide budgetary submissions for the council. We also provide for staff and offices for its purposes.
[Translation]
Pursuant to the act we have other responsibilities for the administration of justice, such as the administration of the nomination process for the Supreme Court of Canada and superior courts, and drawing up the list of positions.
[English]
Our mission generally is to safeguard judicial independence. We're independent from the Department of Justice and we have a very small staff.
With regard to the Quadrennial Commission, the Judicial Compensation and Benefits Commission, our office provides support to this commission. The commission is independent from our office. It is held under section 26 of the Judges Act. It is held every four years to consider the salaries and benefits of judges. Members' appointments go along the following lines: One member is selected by the judiciary, another by the government, and those two members select a chair. The appointment of the executive director rests with our office to support the commission. We are very lucky to have Louise Meagher be executive direct of this past commission.
The commission very generally hears submissions from parties, obviously from the government and from the judiciary, makes recommendations within nine months after being appointed to government in terms of salaries and benefits to judges. The government then has four months to respond to the commission recommendations and then may consider making amendments along those lines.
[Translation]
The amendments being proposed at this time are the result of the deliberations and recommendations of the Judicial Compensation and Benefits Commission. They involve the salaries of judges and protonotaries, who are quasi-judges in federal courts. They will provide a new allowance to these protonotaries. There are also other more technical amendments that were adopted following the deliberations of the commission.
[English]
In essence — I did want to be brief — this is pretty much what I wanted to say. As I said, we have a small department. The Office of the Commissioner for Federal Judicial Affairs is a small, independent department that provides services to judges, administers Part 1 of the act, looks after other duties that the minister may confer upon the commissioner, including judicial appointments to the superior courts, to the Supreme Court as well, and by that I mean the administration of the process of these appointments. We may also take another role in the bill currently, which I understand is now moving to the Senate, Bill C-337, and we provide support to this commission.
[Translation]
I now yield the floor to Mr. Gil Rémillard, and I will be pleased to answer your questions later.
[English]
Gil Rémillard, Chair, Quadrennial Commission, Judicial Compensation and Benefits Commission: Thank you very much.
[Translation]
Thank you for having invited us to appear before your committee to discuss the fifth report of the Judicial Compensation and Benefits Commission, which I have had the honour to chair since December 18, 2015. I would simply like to mention that we wrote our report while referring essentially to the mandate of the commission, which was constituted pursuant to section 26 of the Judges Act. This mandate consists mainly in ensuring that the compensation and benefits granted to federally appointed judges is satisfactory.
The Supreme Court of Canada has confirmed on several occasions that the independence of the judiciary is the cornerstone of the integrity of our judicial system, and, quite simply, of our democracy. We know that that independence must be based on three main features: security of tenure, administrative independence and financial security, which is the topic of our report.
As we mention in article 26 of our report, we adopted an approach based on common sense. We meticulously examined the reasoning of previous commissions, as well as the evidence submitted to us in light of criteria set out in the Judges Act. They are the criteria that guided us in the drafting of our report.
[English]
The first one is all of the prevailing economic conditions in Canada, including the cost of living and the overall economic and current financial position of the federal government; the role of financial security of the judiciary in ensuring judicial independence; the need to attract outstanding candidates to the judiciary; and any other objectives and criteria that the commission considers relevant.
Our recommendations represent our considered and unanimous views of what serves the public interest best with respect to judicial compensation and benefits for this four-year period.
I will let Margaret Bloodworth give you more information about the high quality of submissions and expert evidence presented to us by all parties.
[Translation]
Margaret Bloodworth, Commissioner, Quadrennial Commission, Judicial Compensation and Benefits Commission: Good afternoon. Thank you for inviting us to this meeting of the Standing Senate Committee on Legal and Constitutional Affairs.
[English]
I know you'd like to keep this short so we have as much time to answer questions as possible, so I will make one main point, and that is how much we benefited from the volume of evidence, including expert evidence, and submissions prepared by counsel who appeared before us, both at the two days of hearings we held about a year ago but also in many written submissions. There were many parties. Obviously the judiciary and the government carried the bulk of the hearings, but we also had the benefit of many others, including the Chief Justice of the Federal Court.
The quality of the submissions and the evidence, including expert evidence, was such that we unanimously agreed that we did not have to hire independent experts — we had sufficient before us — and they had responded sufficiently to our questions, both at the hearing but also following the hearing and providing further evidence. So for that we'd like to publicly thank them for making our jobs easier than it might otherwise have been.
Peter Griffin, Commissioner, Quadrennial Commission, Judicial Compensation and Benefits Commission: It's over to me, Mr. Chair, senators. Thank you for having us. I was going to speak briefly to the list of recommendations that were made in our report — they're contained in chapter 8 — and the central recommendations related to judicial salaries.
The first is that judicial salaries continue to be adjusted by the industrial aggregate index as provided currently in the Judges Act. The second is to set the level of compensation as a result of the application of that index for puisne judges going forward to reflect, then, the existing differential levels between puisne judges, Chief Justices, associate Chief Justices as reflected; not to implement a salary differential between appellate judges and puisne judges of the trial courts; and then lastly, addressing the new area that the commission was to deal with, prothonotaries of the Federal Court, to recommend a fixing of their salaries at 80 per cent of that of the Federal Court judges.
From there, we made a series of other recommendations and also adjustments of some anomalies historically that are reflected in some of the more detailed provisions of the act. But that is in effect the series of recommendations that we made to the government and to which it responded within the time provided by the Judges Act.
The Chair: You've already helped us with your pronunciation of "prothonotaries.'' It has been a bit of a debate on this committee.
Senator Baker: Of course, I pronounce it protho-notary because it's a notary we're talking about, but we'll abide by Mr. Griffin's description.
I should put my questions all at once and then let you consider them. I'm pleased to see you here, Mr. Griffin, with your vast experience before our courts. We debated, by the way, the use of prothonotaries in courts other than the Federal Court because they come under the Judges Act, and now you have rightly increased their remuneration. And perhaps their use, our committee was thinking, would relieve the trial judges if it were possible to import the prothonotaries in the Federal Court system into our criminal courts.
I want to thank you for including Labrador, for the judges in Labrador to be on an equal footing with judges in other northern areas. Thank you for that. That's probably the good news in reading the document.
The two questions that come to mind are as far as supernumeraries are concerned, they're paid the same salary as a superior court judge, the same salary as if they did not apply for supernumerary status. They are then assigned their cases by the Chief Justice. Have you looked at the workload of supernumeraries compared to the average superior court judge and whether or not they are assigned cases frequently by the Chief Justice? That's number one.
On the retirement of judges, when we know a judge is about to retire at age 75, why can't we on the same day have that judge's replacement announced on the very same day? There must be some reason. A rational person in the general public would say, "That sounds rational. What's wrong with that? Why can't that be done?''
Mr. Griffin, you said there would be no differential. There's a differential between the superior court judge and the chief judge of the superior court. There's a differential between all Chief Justices and persons who are judges in that court. There's no differential between a superior court judge in the Court of Appeal. I imagine you had submissions that suggest to you that, on the basis of hierarchy, there should be a differential. Surely if you get to the point where you're in the Court of Appeal and that's it, you've got no appeal beyond that. You have the Supreme Court, but as you and I know, the chance of having something reviewed by the Supreme Court of Canada is very small. So what was the reasoning that you used in refusing to have a differential between those two categories of judges?
Mr. Griffin: Senator Baker, let me work back up the tree of those questions that you asked.
In our report, we referred to two factors in dealing with the differential. The first was how subjective it would be to try and differentiate between the importance of the role of a trial judge, where most matters end, and an appeal judge. Secondly, in looking at the statistics of the degree of support across the various appeal courts for the differential, the number of supporting justices on the reported statistics was in the minority. As a result, our recommendation was made as we set it out in the report.
As to your question about assigning judges on the retirement of a judge at age 75, that's not within the mandate we have under the Judges Act, so I can't assist you in that respect, nor an examination of the role played by supernumerary judges other than to say that in my observation, Senator Baker, those supernumerary judges in the courts to which I am exposed are hard-working judges.
Senator Baker: I don't doubt they're hard-working judges. You posed the question, Mr. Chairman, in this committee many years ago as to the full salary position of a supernumerary judge when the work is assigned periodically by the chief judge. We don't doubt that they're hard-working judges. You're a very hard-working lawyer, Mr. Griffin. You're quoted in case law in 150 cases. Congratulations.
The Chair: Do you wish to comment on this?
Mr. Griffin: I was just startled by the number.
Mr. Giroux: I can offer further information on supernumerary judges. The Judges Act allows a judge, who has at least 15 years of service and has reached the number of 80 in terms of years of service in addition to their age, to then elect to become a supernumerary judge. It is a judge who has been a judge for many years, who then can either decide to continue as a full-time judge upon reaching that 80 factor, if you will, continue to be a full-time judge, retire, or become a supernumerary judge that allows the court to use this judge from time to time in order to hear cases. I know that Chief Justices will speak fondly of having the wisdom, if you will, or the experience of supernumerary judges on their court.
As to the workload, Senator Baker, it may vary from one court to another, but I think the general assumption is they work approximately half of their usual workload.
The Chair: Is there a significant difference between retirement income and income as a supernumerary?
Mr. Giroux: Well, there is. The supernumerary judge, for our purposes, is a judge, so earns a full salary of a judge. Once they retire, if they have reached the rule of 80 factor, if they have reached what the minimum cap is to have a full annuity, the annuity is two thirds of the salary of a puisne judge.
Senator McIntyre: Thank you all for your presentations. I note that the prothonotaries will receive an increase in salary, and I believe that's justified. I note that they would receive a reimbursement of legal costs with respect to their participation in the compensation review process. Could you explain that to me, please? Why would they receive a reimbursement of legal costs from taxpayers?
Ms. Bloodworth: Well, judges do now, and I believe it's 60 per cent now that judges receive. They made quite a case on this and actually, if not supported, it certainly was not opposed by the judiciary. The difficulty with prothonotaries is there are only five or six of them. So as opposed to a thousand judges bearing the cost of representation before two days of hearings and a number of submissions, which per judge amounts to a relatively small amount, when that's shared among five or six people, it's very heavy. So we did discuss it, and as set out in our report, we didn't agree to full compensation as that wouldn't provide any incentive to be judicious about costs incurred. On the other hand, it appeared to us to be fairly punitive for five people to bear the cost that 1,000 were bearing, roughly. That was the reason for our conclusion set out in the chapter.
Senator McIntyre: As you have said, there are only six of them anyway.
I draw your attention to section 24 of the Judges Act. I note that that act creates a judicial pool of a number of judicial salaries that may be paid by the Government of Canada but which are not yet assigned to a particular jurisdiction. With that said, how would the pool of judicial salaries for additional judges provided for in section 24 of the Judges Act operate? If, for example, a province enacts legislation to increase this number of superior court judges, would those judges automatically be compensated through the operation of section 24?
Mr. Giroux: I can speak to this, Mr. Chair. Section 24 speaks to a pool of judicial positions that may be attributed to one jurisdiction from time to time by the minister under the law. This pool has been replenished under the proposed amendments with 28 new pool positions, 12 of them going to Alberta, one of them going to the Yukon. The others will stay open, if you will, until the minister has made a decision as to which jurisdiction receives those positions. In order for a jurisdiction to receive a position, it has to make a full case before the minister's officials, who I understand are testifying after us and may speak further to this. So these other positions, other than the ones in Alberta and the Yukon that are in the current amendments, will be determined at a later time by the minister.
Senator McIntyre: So how many are allocated to specific jurisdictions?
Mr. Giroux: All of the pool positions right now, all of the other positions except for one are attributed to jurisdictions. In past amendments to the act, if the pool had been replenished by a certain number, these positions have all been allocated to various courts across the country right now and they remain with these courts on a permanent basis.
Senator McIntyre: Thank you.
[Translation]
Senator Boisvenu: I would first like to welcome our guests.
Section 10 of part 4 of Bill C-44 refers to the Judges Act and provides for the reimbursement of the legal costs incurred by protonotaries during their participation in the commission's inquiries. Can you tell us what those representational allowances would amount to?
Mr. Rémillard: With your permission, I'm going to ask Mr. Giroux to answer that question.
Mr. Giroux: Senator Boisvenu, I don't have those figures to hand. I don't know if a submission was made on this, but it is information I can obtain and send to you.
Senator Boisvenu: Two judges are currently being investigated by the Canadian Judicial Council following the publication of documents showing that they took part in social activities at a tax conference organized by KPMG. Will those judges also be receiving these allowances?
Mr. Giroux: There is a provision that deals with the costs of judges and protonotaries for their representations before the Quadrennial Commission, the provision you alluded to.
As for the legal costs of judges who are the subject of a complaint to the Canadian Judicial Council, or those who might be subject to trial for an act related to their judicial duties, our office receives funding from the Treasury Board of Canada that allows for the reimbursement of judges' costs when they face a complaint before the Canadian Judicial Council. We follow the rates set by the Department of Justice and the government.
Senator Boisvenu: Mr. Rémillard, as former Minister of Justice of Quebec from 1988 to 1995, are you aware of Quebec's concerns? The committee held a national study on delays in court proceedings, and Quebec ranked last in Canada. We know that Quebec allocated additional funds in an act passed by the National Assembly last December, and that it will be contributing $150 million over the next four years. Did your committee discuss the urgent judiciary needs in Quebec, which the federal Minister of Justice has committed to meeting?
Mr. Rémillard: Essentially I would answer that our mandate in the commission was to see to it that there would be good candidates, so that we may have a high-quality judiciary. However, it was not a part of our mandate to examine more political questions like the ones you raise, that do not fall under our mandate but belong to the political domain. Our report limited itself to determining the conditions that allow us to state that we can attract the best possible candidates to become judges, so that we may have in Canada — and so that we may be proud of it as Canadians — one of the best judicial systems in the world. We left the political questions to the care of the minister.
Senator Boisvenu: Thank you.
[English]
Senator Batters: Thanks very much. I'm not sure exactly who to address this to, but if one of you could please answer it — whoever is most appropriate. This particular omnibus bill proposes changes to the regime of supernumerary judges at clause 221. Could you please explain these changes?
Mr. Giroux: Which particular part?
Senator Batters: In our study of court delays, we have been looking a little bit at the issue of supernumerary judges, so perhaps there is something in this that might be pertinent.
Mr. Giroux: You're referring to which provision of the bill?
Senator Batters: I was referring to clause 221, but you could just answer in general about the changes being made to the regime of supernumerary judges.Is that the right clause?
Mr. Giroux: You're referencing what is commonly known now as the step-down provision. It's a very technical amendment but in essence, the —
Senator Batters: Could you explain, first, what the step-down provision is?
Mr. Giroux: I'll start with that. Any judge who, upon attaining the necessary rule of 80, is entitled to earn an annuity based on their salary at the time they retire. For a chief justice, if they have stepped down from their role as chief justice and have taken on either a supernumerary position or a puisne judge position within their court, they are allowed upon retirement and after fulfilling the required number of years as chief justice to earn an annuity not based on the salary of a puisne judge but based on the salary of a chief justice, since they were chief justices before.
In the territories, the chief justices are known as senior justices. In the past, there was a "black'' in the act that did not allow for a senior judge of the territories to essentially step down as a senior judge and then earn upon retirement an annuity based on the salary of a chief.
Please tell me now if I'm losing you, because I'm trying to keep up myself.
Essentially, the amendments seek to correct that so as to allow a former chief justice who has decided to step down and become a supernumerary judge or puisne judge, or one who has stepped down as chief justice on a trial court, for example, and to become a judge of the Court of Appeal in the same province, to earn an annuity based on the salary of a chief, since they were a chief before.
Senator Batters: Thank you.
Ms. Bloodworth, when was this particular Judicial Compensation and Benefits Commission established, and when were you appointed to this commission?
Ms. Bloodworth: The commission was appointed, I believe, December 15, 2015. The election was in October, and then it was appointed. We were all appointed at the same time.
Senator Batters: So December 2015.
Ms. Bloodworth: Yes.
[Translation]
Senator Dupuis: Thank you for being here with us today. I apologize for having been late. I would like to understand the choice of criteria governing compensation, and the increase in the compensation of judges based on the range of economic activities. Could you explain to me why that criterion was chosen rather than, for instance, the consumer price index?
Mr. Rémillard: I thank you, Madam Senator Dupuis, for your pertinent question. It is a matter we discussed at length because it is fundamental, of course, and because it raises considerations that are important to understand well.
[English]
Peter, would you like to add to this?
Mr. Griffin: The industrial aggregate index was originally used in the Judges Act as the best indication of the increase in wages across all wage earners and salary earners in the country, as opposed to the Consumer Price Index, which was more on the consumption end.
We looked at the submissions that were made to us about considering whether the Consumer Price Index would be the more appropriate index to use. We concluded that the industrial aggregate index better reflected wage increases, and second, that it had been part of the fabric of the Judges Act from a compensation point of view and approved when looked at in previous commissions.
We also compared that to the circumstances of the judge's annuity, which is indexed to CPI, because it would then be on a consumption basis as opposed to an earnings basis. So that was the basis of the conclusions we expressed in our report.
[Translation]
Senator Dupuis: Would you have some idea, based on the discussions you held, as to whether the criterion you chose is more generous than the consumer price index?
[English]
Mr. Griffin: I won't get into our deliberations because I think they attract certain protections, but I can tell you we were well aware of the nature of the IAI and the fact that it may, at times, vary from the CPI and that variation may differ from time to time. We were certainly alert to what it was doing and felt it was adequate and appropriate for purposes as an indicator to continue to use.
[Translation]
Senator Dupuis: The question I wanted to ask was not clear; I certainly did not want to interfere with the confidentiality of your debates. I simply wanted to know according, to the calculations you did, if that criterion is more generous than the consumer price index.
[English]
Ms. Bloodworth: Sometimes it is, and sometimes it's not. Most times it has been. I'm told that this year, it's lower than the Consumer Price Index, which probably reflects certain economic conditions.
Referring to section 40 of our report, our conclusion was that we found it entirely appropriate to adjust judges' salaries on the basis of the average salary increase of the public that the judges serve. It helps to ensure a consistent relationship between judges' salaries and the salaries of other Canadians.
From that point of view, our logic is not affected by which is more generous. It is which is more appropriate, and that was the reasoning behind it. Most times it has been more generous, as you might imagine, because salary increases of Canadians are not just about price increases. They are also about productivity and many other things.
This year's happens to be an anomaly, if you like, when a different index is higher — the IAI — but it doesn't change our conclusion because our conclusion was based on the consistency with average salary of Canadians.
The Chair: I have a couple of questions. You're talking about the industrial aggregate. Is that compiled over the past four years or just the past year? How do you arrive at that number?
Mr. Giroux: The industrial aggregate provision is based on a percentage that Statistics Canada provides our office prior to April 1 of every year, and Statistics Canada looks at the average weekly earnings of Canadians over the most recent period that it can. For example, this year, for the increase under the IAI that was provided April 1, StatsCan had looked at the calendar year 2016 and looked at the increase from 2016 as compared to year 2015 and came up with a percentage over that period. That is how they calculate the industrial aggregate. This year's percentage was 0.4 per cent.
The Chair: Mr. Rémillard, you talked about the criteria that you used, and I'm getting the impression that the overriding consideration is the industrial aggregate, but you also mentioned a number of other things, like prevailing economic conditions and the financial condition of the government. How do you arrive at those kinds of considerations? For example, the current government is running significant deficits. How does that enter into your consideration and how do you factor in those other criteria with respect to arriving at a decision?
[Translation]
Mr. Rémillard: Thank you for your question, Mr. Chair. It was extremely important to us to be able to establish the economic context on which to base our decision. That economic context, as you will remember, was uncertain over the past three and four years, and caused us to examine the country's economic evolution very closely, as well as the state of the economy generally, as it evolves, according to various factors. We heard from several specialists who came to testify before us, and we also heard the testimony and briefs of specialists who came to explain the general economic context.
I will ask Peter to complete my reply.
[English]
The Chair: It may take up too long in terms of time to get into all of the details. Does anyone appear before your group to oppose? Are they all there justifying some level of increase? There is no one there who expresses concern? One of the things this committee is looking at seriously is the question of court delays. Do you look at the number of appeals? Those kinds of issues are obviously not part of your consideration. I'm getting the impression from this brief meeting that the overriding consideration is the industrial aggregate, and any of these other factors are sideline issues that don't factor into the ultimate decision.
Mr. Griffin: Let me address your questions in the order that you put them.
We had quite a series of disagreements across the evidence and submissions with respect to whether an increase over and above the IAI should be used and whether the CPI versus the IAI should be used. The government led evidence, including expert evidence, resisting the judiciary's submissions that there should be an increase over and above the IAI. There was a good deal of evidence, including expert evidence, contra each other with respect to the issues that were being taken forward. Ultimately, the conclusion reached by this commission was that there should not be an increase over the IAI and that it was still an appropriate indicator.
We looked also at certain levels within the public service which have been used as a comparator over various years, the DM-3 level, and looked at that as well and what previous commissions had done with respect to that. So there was quite a tension within the evidence as to how those various comparators should be looked at, should they be adjusted, how should they be adjusted, what effect that would have. We had to sift our way through that.
The government ultimately accepted the recommendations reflected in Bill C-44, but we had quite a spirited exercise that went on through the course of our hearings and real tension within the evidence.
The Chair: You might feel this is outside your mandate, but this committee has the ability to include observations in its reports. Do you have any views with respect to broadening the criteria going forward that future commissions perhaps should take into consideration? The committee would appreciate hearing those if you feel this is the opportune time to do so, if you have any of these views.
Mr. Griffin: Speaking for me, sir, it is an invitation I hadn't considered. I will certainly think about it, and if there is something I can offer, I'll be happy to do it.
The Chair: We would appreciate that very much.
Mr. Giroux, you were referencing a question of Senator McIntyre, I believe, related to paragraph 24(3)(a) and (b), (b) specifically, the number of judges increasing from 50 to 62. You indicated that those with one exception have been assigned. The committee would appreciate it if you could provide us with the list of where those judges have been assigned. We don't need it right now but would like it at some point in the near future.
Mr. Giroux: The pool positions that exist now and have been increased under Bill C-44 are distributed across the country currently within various courts. I have a list that I could provide, which may be a little too long to spell out, but essentially they are the courts of appeal, the superior courts, superior trial courts in each province and territory; and the unified family courts also receive pool positions across the country. I could provide a list. That might be easier than to spell it out here.
The Chair: I agree. Thank you.
Senator Baker: Thank you again to the commission. You have all done a great job in your report. I just checked and found, Mr. Griffin, that you've actually represented clients in 146 quoted cases in case law, not 150 as I mentioned, so I wanted to correct that on the record.
My question involves the notification of all applicants to superior court positions and the Tax Court and the Federal Court, a notice that said all applicants must submit a new application based on new criteria at the same time the commission was appointed to review the process. The notification to all applicants is that they now have to do a new application, even if they had submitted one six months previous to that, is my understanding of the process.
You submit your application. You submit a permission for a police check, your background check, and then a permission for the law society to be consulted on your record with the law society. All that has to be done. The minister is seized on an urgent basis to fill vacancies. It seems to me that it would take time. If there's a declaration a year ago that there's got to be a whole new application process, everything else is out. You've got to have this new process, and in order of the new process take effect, there would be at least a year or a year and a half for these persons to get things together to submit new applications, to get new background checks and everything else. Or did I misinterpret the regulation that you could do a new application but your existing background check by the police was okay, your existing performance check with the law society is okay; you don't have to do that? Mr. Giroux?
Mr. Giroux: I can respond somewhat to that, Senator Baker. I believe this government has now made 58 appointments since it came into power. Thirty-eight of the appointments were made prior to the new process that was announced in October 2016, so 20 appointments have been made under the new process.
You're quite right in saying that the new process involved requiring candidates who had previously applied to apply under the new process with the new questionnaire, which is somewhat different from the old one, longer and more complete. Yes, you are quite right that everyone was asked to resubmit an application, if you will.
Again, 38 of the candidates were assessed under the previous process.
Senator Baker: Did the criteria change qualifying for a superior court position in Canada? Did the criteria change as to someone's qualifications? And did the criteria change for the regional committees made up of the seven persons plus yourself, the three members of the general public, the Law Society, the Canadian Bar Association, the judge and the other person appointed, one of the experienced lawyers? Did the criteria change that they had to consider in bringing forth the recommendations for you to consider with the Minister of Justice?
Mr. Giroux: The questionnaire has more questions for applicants. The general criteria remains that of merit, but there are more questions asked of candidates as to, for example, language capacity. There are more questions as to their competence to speak the other language. There are more questions that are asked as to how they may reflect diversity within Canadian society, and the government has openly stated that it wished to have more diversity on the superior court benches.
To answer your question, the questionnaire, which is on our website, is more complete and asks more questions of candidates. The general criteria for appointment remains the same, but there may be more emphasis put on, for example, diversity, I mentioned language, gender and so on.
Senator Baker: Who comes up with the three names to fill a judicial vacancy? Who comes up with the three names to be given to the minister? Is it you? Do you make that determination as to the three, or you in consultation with the Department of Justice? Who makes that decision on the top three? I understand there are three categories for those judges: Highly recommended, recommended and not recommended. Who comes up with the highly recommended and the names of the top three?
Mr. Giroux: There are judicial advisory committees, JACs, as they're called, in every province and territory. In Quebec there are two and in Ontario there are three. These committees are made up, as you stated, of seven members. One member of my staff participates at every meeting as a secretary of each and every committee. Committee members represent the various groups that you pointed out earlier, and there are three members that represent the Minister of Justice. Under this new process, these people could apply to become members of the judicial advisory committees, which is something new. The other entities represented on the committee remain the same. For example, the Canadian Bar Association is asked to provide a list of names of people who could be members on these committees.
Once a candidate has applied and downloaded the questionnaire from our website, applied and sent it to our staff, we send it to the appropriate committee in that province or territory, and they will consider the application and they will — not a member of my staff, but those seven members — will come up with the designation of either highly recommended, recommended or unable to recommend.
Our office then provides the minister's office with the results of each and every meeting and a new revised list further to that meeting of eligible candidates to be appointed, with the "HR'' for highly recommended and "R'' for recommended mark beside their name. That is along with a report with the deliberations of the committee on that candidate.
Then it is up to the minister to make a call, to make a selection from that list of eligible candidates in the pool for that province. How the minister decides to make the appointments rests with the minister's office.
Senator Baker: Who comes up the top three? Chairman, he didn't answer my question. Anyway, that's okay.
The Chair: He will have to do it offline. We've gone well over.
[Translation]
Senator McIntyre: How does the remuneration of judges in Canada compare to that of judges in other countries?
Mr. Rémillard: We did a few verifications. Conditions for judges in Canada compare very well and in some cases advantageously with the situation of other judges. I don't know if my colleague wants to add something.
[English]
Mr. Griffin: The only thing I can add, Senator McIntyre, to that is that the compensation structure in other countries and the relativity of the role of judges and the role that judges play in those environments is unique to each of those jurisdictions, so you can get some guidance from it but it doesn't help you terribly much in framing it back into what happens in this country. The historic aspects, the structure we had in place and the measurements against the criteria that the Judges Act gives us were our primary criteria, but we were alive to the fact that there are other compensation structures in jurisdictions.
[Translation]
Mr. Rémillard: If I may, we have in Canada a pension system that is particularly conducive to guaranteeing the quality of our judicial system.
Senator McIntyre: Mr. Giroux, I understand that you are the Deputy Commissioner for Federal Judicial Affairs. Has the selection process for the appointment of the next commissioner begun?
Mr. Giroux: Yes, senator, our office and the Privy Council published an advertisement on our websites a few months ago inviting candidates to apply for the position of commissioner. Although the announcement is still on our website, the application deadline has now passed. We are now waiting for the appointment of a new commissioner.
Senator Boisvenu: Mr. Rémillard, my question may be a bit awkward, but I'm sure you will provide a good answer. There is an increase this year from $308,000 to $314,000. It cannot be considered an abusive increase; it represents about a 2.5 per cent cost-of-living increase. You had four criteria, including the state of the economy, the protection of judicial independence through adequate compensation, and attracting the best candidates. The fourth is related to other criteria you may receive.
Given the disastrous context of delays in court proceedings in our federal courts and court houses, could the performance of the judiciary not be one of your criteria, since salaries are being increased? In Quebec, for example, the chief justice said that we have hit the wall. The justice system is practically in a state of collapse. And yet the judges will be given salary increases. Could we not have, as an additional criterion, our judges' performance in managing the courts properly, as they are the main actors in them?
Mr. Rémillard: Senator Boisvenu, that is a very relevant question, of course. But for our commission, it is a political question that does not necessarily fall under our mandate. In several contexts, while drafting this report, we found ourselves dealing with issues that straddled the political and the mandate of our commission. It is not up to us in this report to include evaluations in the remuneration conditions.
Senator Boisvenu: But the criteria?
Mr. Rémillard: We only refer to the employment criteria that allow judges to be adequately compensated.
Senator Boisvenu: The salary is awarded to a sitting judge?
Mr. Rémillard: The salary is awarded to a sitting judge who must also have a guarantee of tenure. That is also an important part of the criteria. There has to be economic security and security of tenure, which is also a guarantee of independence. I think our judges must not find themselves in a situation where they fear being reprimanded or removed from their duties or assigned to lesser duties because of performance as such. And so that is a question we did not study, as it remains basically a political question.
Senator Dupuis: Mr. Rémillard, according to certain chief justices, the main challenge for a chief justice is to render judgments. That is the core of their work. In a context of productivity, is there something you could recommend that could eventually be considered in setting judicial remuneration?
Mr. Rémillard: Your question is very relevant, and in the same vein as that of Senator Boisvenu. Earlier, Senator Baker also asked some very relevant questions in the context of the political evaluation of the work of judges.
For our part, we essentially had to determine the criteria according to which we can guarantee that our judges will be independent, and consequently there must be standards to protect their independence — which is a very good thing — and also criteria to ensure their financial security. This is what we have proposed through the salary increases we submitted. You will understand that given the mandate of this commission, we often deal with matters that straddle the political and the judicial.
[English]
The Chair: Witnesses, thank you all for being here today and assisting the committee with their deliberations. It is much appreciated.
Joining us for our second hour, from the Department of Justice, Laurie Wright, Assistant Deputy Minister, Public Law and Legislative Services Sector; Adair Crosby, Senior Counsel, Deputy Director, Judicial Affairs, Courts and Tribunal Policy; and Anna Dekker, Counsel, Judicial Affairs, Courts and Tribunal Policy. Thank you all for joining us.
Laurie Wright, Assistant Deputy Minister, Public Law and Legislative Services Sector, Department of Justice: Thank you very much, Mr. Chair. Unfortunately, the Minister of Justice was unable to be here today. I'm very pleased to be a poor substitute to step in and assist with the study on Bill C-44.
As we've already heard today at the table, Division 10 includes the proposed amendments to the Judges Act that touch on two aspects of Parliament's responsibility for superior court judges: judicial compensation and additions to the judicial complement. Proposed amendments would implement changes to judicial compensation following the recommendations of the 2015 Quadrennial Commission. The other amendments would provide salaries for 27 additional superior court judges.
[Translation]
With regard to judicial remuneration, section 100 of the Constitution Act, 1867, requires that Parliament, and not the executive, determine the compensation and benefits of superior court judges. The compensation and benefits of federal court judges and protonotaries are provided for in the Judges Act. In the Reference re the Remuneration of Judges of the Provincial Court (PEI), the Supreme Court of Canada stated that an "independent, effective and objective'' commission should examine the adequate character of the remuneration of judges before changes were made to it.
[English]
Section 26.1(1) of the Judges Act provides for the establishment of the Judicial Compensation and Benefits Commission every four years. As we've already discussed today, the commission's mandate is to inquire into and make recommendations regarding the adequacy of judicial compensation and benefits.
The current commission was convened in October 2015 and delivered its report to the Minister of Justice on June 30, 2016. As you know, the report was also tabled in both houses of Parliament, and the government issued its public response on October 31, 2016.
The government response accepted the recommendations of the commission, and the Judges Act amendments that are proposed in Bill C-44 represent the final step in this process. These amendments adjust the provisions applicable to each superior court to reflect judicial salaries as of April 1, 2016, which is the effective date of the recommendations. It changes the start date of the next and subsequent commissions from October 1 to June 1 of the relevant year.
[Translation]
These amendments also adjust the compensation of certain current or former chief justices or senior judges, so that they may be adequately compensated given their duties.
[English]
The other key set of amendments implements the government's commitment in Budget 2017 to provide additional judges to increase the capacity of Canada's superior trial and appellate courts to hear criminal and civil matters.
[Translation]
Twelve of these positions will be allocated to superior trial courts in Alberta and Yukon; eleven will be allocated to the Alberta Court of Queen's Bench, and one to the Supreme Court of Yukon.
[English]
The remaining 15 positions will form a pool of judicial resources that can be allocated to superior courts across Canada.
In terms of the specific positions that would be created for Alberta and the Yukon, these jurisdictions, prior to Budget 2017, provided detailed statistical information regarding current and expected caseloads that support the need for the additional judges.
In terms of the remaining 15 positions in the pool, a number of jurisdictions have made requests for those positions. The department is working closely and in a timely fashion with our provincial counterparts in these jurisdictions to identify the data and develop the objective indicators needed to support the request for additional judges.
Once the business cases have been finalized and reviewed for all of the requests for additional judges, officials will move quickly to provide their advice to the Minister of Justice.
In light of the time pressures today, this concludes my remarks. I'd be more than happy to take questions. I have my colleagues, Adair Crosby and Anna Dekker, who are also able to assist.
The Chair: Thank you very much.
Senator Baker: Thank you to the witnesses and to Ms. Wright for her presentation.
With the provision of 15 extra judicial positions that are not presently allocated, you say there will be an examination of the objective indicators, were the words you used, in submissions to the federal government for the appointment of these judges in certain jurisdictions. Could you outline for the committee what the objective indicators are for the government, for the minister, to allocate a superior court judge to a particular jurisdiction where the province is requesting that one be allocated?
Ms. Wright: I will address some remarks, and then my colleague, Anna, can also provide further background.
Part of the issue is that there is a shared responsibility between the federal government and the provinces and territories with respect to administration of justice. We need to work in close cooperation with our provincial and territorial counterparts, because they are responsible, for example, for all of the aspects that go around supporting the day-to-day operations of the courts. That would include things like making sure there are enough offices for judges and that they have enough court clerks. Of course, it's important for us to be working together. It's costly for the provinces as well as the federal government to make these important investments in the justice system.
The second thing that is related to that would be to say that because every province has their own jurisdiction over the administration of justice, and because every Chief Justice has control over their own courts, the kinds of information and how it's compiled around statistics relevant to the workload of courts will vary from province to province and from court to court. We do not have a one-size-fits-all model that allows us to have exactly the same information coming from every jurisdiction and court to assess these pressures.
Anna can perhaps speak to a list of the nature of the kinds of things that we work with provinces to elicit from them.
Senator Baker: Before you go on, I'm only talking where a province has requested the allocation of a judge. In other words, the province has already agreed the courtrooms and the services are available, and we now want the judge. The department has 15 judges for allocation purposes.
You say there are objective indicators that must be examined, and you suggested that workload is one of them. Is that the only indicator that is considered, and do we have a situation in Canada where you have 15 judicial positions available and no one wants them? In other words, how many jurisdictions are asking for those 15 positions? Are there more than 15 positions being requested or fewer than 15 judges being requested?
Ms. Wright: I hear two parts to your question. Anna can perhaps give you more detail with respect to the kind of indicators we use to help build the business case for the judges, and then we can also talk a little bit about the landscape with respect to the pressures on the requests for the pool.
Anna Dekker, Counsel, Judicial Affairs, Courts and Tribunal Policy, Department of Justice: I'll speak just to the objective indicators, and the critical question is really how the courts are dealing with their case inventories.
Relevant information includes, for example, trends in the filing of new cases, and that can be broken down into categories such as criminal, civil and family. It would include trends in the pattern of case flow, such as wait times to schedule hearings or the proportion of reserved judgments. It could be the availability of judges, annual sitting days and hours; those also vary from court to court. And most important are the trends in the case inventory, or the volume of cases pending at the end of any given period.
An indicator that judicial resources may be needed could be that the inventory has been steadily rising. If the incoming caseload increases and the inventory doesn't rise, then the judicial resources are sufficient to deal with it. However, if the inventory steadily increases, then that may be an indicator that more judges are needed. It could also, of course, be a function not only of the incoming case volumes but complexity and, thus, the time that has to be devoted to each case.
Because different jurisdictions have different abilities to generate statistical information, as Ms. Wright indicated, there is no set formula that can be applied to each jurisdiction. Because the demographic and geographic and social conditions vary greatly, as do access to courts and out-of-court resolution services, comparisons across jurisdictions, especially on a per capita basis, are not necessarily something we look at.
[Translation]
Senator Boisvenu: Welcome, ladies. This section of the act involves two points, one of them being the salary increase for judges, which I understand very well. The part of the provision I do not understand concerns the distribution of judicial positions.
I don't know if you are aware of the situation in Quebec, but I will explain it to you, if I may, Mr. Chair. The situation of the Quebec legal system is catastrophic. Over the past six months, 200 people were released without trial, and it is thought that within a year, more than 1,000 people will be released in the same way. Quebec will be investing $150 million over four years, and has appointed five judges to the Superior Court, and two to the Court of Appeal. The federal Minister of Justice has said that her department will eventually appoint more judges. In this bill, close to half of the judges' positions will be allocated to Alberta, and some to Yukon, but none to Quebec. I would like you to explain your rationale.
Ms. Wright: Thank you for your question, Senator.
[English]
Part of the question in terms of the allocation has to do with the timing of when we receive full information from each province with respect to the request to allocate new positions to them.
Because we deal with a budget cycle, we knew that there were a number of requests outstanding that had not yet been finalized in terms of the business case, which is the reason for the creation of the pool positions in order to allow some time for us to continue working with our provincial and territorial colleagues to ensure that the business cases are there so the minister can make a decision about those positions. It comes down to a question of timing.
We are working very closely with our colleagues from the Province of Quebec. In fact, we very recently had a meeting with them. It's a very collaborative relationship. We're getting excellent information from them and we expect to be in a position very quickly to be able to finalize the business case for those positions.
[Translation]
Senator Boisvenu: Madam, we are now in May. In December, the Premier of Quebec, Philippe Couillard — six months ago — asked the federal government to appoint seven new judges. Why is that request not reflected in this bill?
Ms. Wright: Thank you, senator.
[English]
When we are coming up with the allocation of judicial positions from province to province, it's a shared federal and provincial responsibility. Of course, the perspective of the province, who is administering the courts on the ground and has the day-to-day information about the impact that workload, complexity and other factors are having on them, is very important. At the same time, it's Parliament that allocates the salaries, so there is also an important role for us as officials to ensure that the minister is assured she has the best information possible before going ahead with this kind of decision.
[Translation]
Senator Boisvenu: Do I understand that the decision of not allocating positions to Quebec at a time when it is urgent to do so falls to the minister, and not to you, as deputy minister?
[English]
Ms. Wright: The decision with respect to allocation of the positions is always a decision of the minister. She may, of course, consult her cabinet colleagues and she may consult the Prime Minister. Officials would advise her simply on the question of the demonstrated need for the positions.
[Translation]
Senator Dupuis: Ms. Dekker, I would like to understand something. In the reply you gave to Senator Baker, I believe you alluded to objective indicators that are related among other things to the management of cases and to court time, for instance. There are several elements that are quite easy to verify against objective criteria, such as the inventory of pending cases. Is this system uniform throughout the provinces and territories?
I understand quite well that the situation is different in each province and territory, and that the responses will be different. But are objective criteria applied in a uniform fashion everywhere? Were those criteria developed for the constitution of a pool of X number of judges, or are they permanent, fundamental criteria that the provinces know ahead of time and must respect?
[English]
Ms. Dekker: I will defer to Ms. Crosby for this question; she has more experience dealing with the specifics of these questions..
Adair Crosby, Senior Counsel, Department of Justice: Up until about the mid 1980s, when an Attorney General wrote in and said, "I need a new judge,'' Parliament produced a new judge through an amendment to the Judges Act. Since probably the mid 1980s to the early 1990s, there has been a long history of working collaboratively with the jurisdictions, and it has taken time to help them understand that when cabinet makes a decision to create a new position and authorize the salary, it's a significant commitment of public resources and a case has to be made to cabinet to demonstrate that it's a worthwhile investment, so the provinces are very familiar now at this point with the need to work with officials within our unit to develop the kind of business case necessary to persuade cabinet.
As Ms. Wright mentioned earlier, every province has slightly different informatics systems, different levels of expertise and different conditions. We actually work very closely with the provinces to develop the sort of information that we feel can validate the need and upon which we can base our advice to the minister. So we say the objective criteria, but it's really more that there needs to be data which is empirical or context-specific but which is objective in nature and sufficient to persuade cabinet that the investment should be made.
It definitely varies with jurisdictions; for example, some of the wealthier provinces, B.C. and Ontario, have sophisticated informatics systems and are able to develop quickly the sorts of work flow charts and data analysis processes that can assist us in our analysis. We have some jurisdictions where they're still counting paper files, so it varies with jurisdictions, but we try to look at what they have and help them make the case without regard to any single set of specific criteria.
That being said, I think that there is a move afoot to try to systematize some of the collection of the same sort of data. It's the same question we're always asking: How do you demonstrate that there has been an increase in your workload? It will always be the same sorts of indicators, whether it's increase in inventory or increase in delays. The same sorts of criteria are ultimately used, but the way we develop the data to support the ultimate conclusion is different.
[Translation]
Senator Dupuis: I would have an additional question. Does that mean that when you examine the court delays, a province that has fewer delays could have a position allocated to it, whereas a province that has a bigger backlog might see its request denied? Is that an important part of the criteria used in assessing requests?
[English]
Ms. Crosby: There is no single standard applied in terms of appropriate criteria. In fact, we work with the court to help them define what their assumptions are. You will have different tolerances for different delays in jurisdictions. Judges will provide different assumptions about working hours, travel time and hearing time. There is no single specific number of weeks or months that every file has to be heard within a certain period of time.
For example, in our current situation where we know there are delays in the provinces, we'll work with the province to try to figure out how many judges are needed to bring your workload back to a level where it's manageable and delays or wait times for hearings are sustainable and within acceptable parameters in your jurisdiction.
Senator Batters: We've been studying the issue of criminal court delays for over a year in this particular committee. As of today, my calculation is that there are still — taking into account that there have been a few judicial appointments made in the last week — 54 judicial vacancies in superior courts across Canada. Is that correct?
Ms. Crosby: It varies every month. I think the number for May 1 was 62. It depends on how many appointments are made in a month and how many vacancies are created. Judges retire all the time. It fluctuates.
Senator Batters: Then I had deducted the few which occurred since then, but I haven't taken into account if there have been new retirements. To that, we can add 28 new judicial spots, so we're up past 80 at this point.
Last October, the current justice minister dismantled all of the 17 judicial advisory committees across Canada and announced a completely new appointment process. Is it true that more than six months after the justice minister announced that particular new situation, there are still seven out of the seventeen judicial advisory committees across Canada that don't have anyone appointed to them? Is that right?
Ms. Crosby: That's correct.
Senator Batters: For those particular jurisdictions, those panels can't even start their work. These are the panels who do the work to go through the applications of people who have applied to become federal judges, review their references and do that important work. For those particular jurisdictions that don't have a judicial advisory committee, they don't have anyone to do that work; correct?
Ms. Dekker: As far as I know, that's correct. People could still be applying, but there would be no one in place to review these applications.
Senator Batters: Or do interviews or any other types of processes. That's completely unacceptable because this is just having a major impact on Canada's criminal court delay crisis.
Our Legal Committee is doing a substantial study on this. We produced a major interim report last August, which is close to a year ago. We made four major recommendations, including recommending that the federal justice minister fill the judicial vacancies. That was one of only four major recommendations that we made in that interim report. Why isn't that particular recommendation being given the seriousness it deserves given the crisis we're seeing right now with criminal courts?
Ms. Wright: Thank you very much, Senator Batters. I know that the honourable senators are aware from the important work they have been doing that, of course, the question of delay is a complex one, and the rate of vacancies on the superior courts is certainly an important factor.Given, however, that there are large numbers of criminal cases that are heard in the provincial lower courts and not the superior courts, the impact that the vacancy rate on the superior court has has to be mitigated from considering that.
Of course, as you will be aware, the Minister of Justice met with her federal, provincial and territorial colleagues very recently. They came out with a list of five things that are the top elements for them to be studying in terms of making reforms as quickly as possible that will help to move criminal cases through the courts more quickly. Those would include things such as looking at the high rate of bringing forward administration of justice offences and other matters such as that.
That said, of course, the minister has said herself the importance of ensuring that the vacancy rate at the superior court level is brought down. You will have noted, of course, that there are a continuing number of appointments that are being made recently. That is a process that the department does not support the minister on directly, so it is the deputy commissioner, who was here earlier today, who supports the minister on those individual judicial appointments. That is an important difference being made because, of course, our counsel appear before judges on a regular basis and therefore it's important to have it be an arm's length organization working with the minister on specific individual appointments.
Senator Batters: The minister is not able to appear here today herself. I can't speak for the committee, but we really want to see some action. We recognize it's a complex issue. Our interim report recognized that. This is something that is within her power and the power of the government to handle as soon as possible.
One of those judicial advisory committees that has not been reconstituted is Nunavut. Last fall we heard from the Nunavut deputy justice minister about the crisis level of superior court judge vacancies from Nunavut. At the time, there were two out of six vacant, which is 33 per cent. I don't believe that any appointments have been made for that particular court. Now they still have no judicial advisory committee. I know that they've made some deputy judge appointments, but I don't think they have appointed any of those particular judge vacancies. They still have no judicial advisory committee. That seems like an absolute crisis level to me. We heard six months ago that it was.
Ms. Wright: Again, the question of the constitution of the committees is not within the department's mandate.
With respect to the support for the judicial system in the territories, there were a number of deputy judge appointments that were made in the fall, and those are appointments where sitting judges from superior courts in the provinces can sit as territorial judges in order to be able to take up caseloads and help with the situation. It's, of course, not a full answer to the question of those vacancies being filled, but there is at least some measure being taken currently that would assist in that regard.
Senator McIntyre: Thank you for your presentation.
My question has to do with the start date of the next and subsequent commissions from October 1 to June 1 of the relevant year. I note that section 26(2) of the act is being amended by Bill C-44 to say that the commission shall commence its inquiry on June 1, 2020 and on June 1 of every fourth year after 2020. So my question is this: Why is the beginning date of the next inquiry being pushed back?
Ms. Wright: Certainly, senator, that's an excellent question.
The current start date of October 1 coincides rather unfortunately with the date for fixed-term elections. The government of the day is still running the affairs during the period of an election campaign and in the immediate aftermath before the transition, and one of the principles of responsible government is that that caretaker government will not bind the future government by taking important decisions, including making important appointments.
So we had to wait for the new government to be sworn in and then for a sufficient period of time for us to be able to brief them and speak to them about both our recommendations for the appointment of a government member but also the position that the government would take before the commission.
The change of the date to move it to June 1 is to fix this problem so that the next time around there is no delay in the start for when the commission is able to get up and running. We are quite conscious of the need to be timely in terms of this process, and so this is why the change is being made.
Senator McIntyre: As I understand your answer, the reason for the amendment is that there would be a conflict in the current timing of the work of the commission in a fixed-date general election call. That's it?
Ms. Wright: Yes.
Senator Baker: I'd like to return to the witness Laurie Wright. It's important that you pointed out that the province, of course, bears perhaps the majority of the expenditure: providing an office, support staff, courtroom facilities and so on. But do we have a situation in Canada? Because the number of judges of the superior court can be done by provincial law; appointments can be made.Do we have a situation where we have 15 judges allocated that are not yet assigned, and there are more than 15 requests in to the federal government for those positions to be allocated? Is that the situation we have today?
Ms. Wright: The situation we have today is that we're always in a cyclical situation with respect to when different provinces come forward to make requests for positions. In the same way that the vacancies fluctuate, we have a cycle over time with respect to the number of requests that have come in and the number of positions that are available.
At any given time, it's possible that the number of new requests may exceed the number of given positions. That doesn't mean that the end of the story is the amendments that are being considered in the bill today.
Senator Baker: No, I understand that. However, right now, you have 15 judicial positions the federal government is paying for, just the salaries and pensions and so on. The province says, "We have the facilities and we have the need. We need those judges.'' Right now, at this very moment, are there more than 15 requests in to the federal government for those 15 judges, to your knowledge, or can you answer that? Do you feel as if you cannot answer that question? I would understand. The committee understands. You're a public servant.
Ms. Wright: There is, of course, an element of confidentiality with respect to the negotiations and conversations that we're having — I shouldn't have said "negotiations,'' because it's not a negotiation — the collaborative relationship that we have. So we are in a position of some delicacy with respect to that particular issue.
Senator Baker: I would suspect you don't have the applications in to cover the 15 positions, and I'm wondering why. Obviously, the government would have allocated more than 15 positions if they had applications from governments for more than 15 positions.
Ms. Wright: I think this comes back to the question of timing. There has not been a practice in the past of the federal government putting out a call letter once a year to which provinces reply in order that everyone come in at the same time with their requests. What the minister would have gone forward with, with respect to her recommendations for the budget that was just announced, would have been related to information that officials had at any given time, but that will change over the course of time.
Senator Baker: I suspect, Senator Batters, you may be correct in your analysis of the process.
I respect you not being able to tell us how many applications are in, but it is certainly on our minds as to whether or not the government is satisfying the demand that is fairly serious across this country.
[Translation]
Senator Dupuis: Madam Assistant Deputy Minister, a little earlier you spoke of the necessary information. For those of us who are looking at this from the outside, all of the necessary information might sound somewhat vague. I understand that you and Ms. Dekker referred to more specific indicators such as the inventory of cases, or case management. However, if you try to understand the point of view of people who are waiting, and who hear their provincial government say that there is a shortage of federal judges, this is not very clear. If the provinces asked for judges, and despite the fact that we hear in the media that such requests were made, it is the first time we hear a reference to a range of indicators a province must meet to obtain a favourable answer.
Could you be more specific as to the status of requests and the information you need to receive?
[English]
Ms. Crosby: I think it's fair to say that we are in active discussion with a number of jurisdictions. It is an iterative process, so it's not really possible to give a precise state of play because it depends on each jurisdiction.
Often jurisdictions will provide us with information that gives us a piece of the picture, and we will go back and ask for more information. A good example is that a jurisdiction might have a stable case flow but increasing wait times, which is sometimes an indicator that the cases are getting more complex. Measuring relative complexity and linking that back to number of judges can take time and may require other indicators. So I don't think it's possible to give you a snapshot of where we are with respect to every jurisdiction. It really does vary with jurisdiction.
Ms. Wright: One thing I would like to say is that one of the key mandates of the minister, and the department in terms of supporting her, is ensuring that Canadians have access to a proper system of justice. So the priority for us, in dealing with our provincial counterparts, is not to say, "We're setting a bar up here and we are expecting you to do all the work to meet it.'' We want them to be successful because we want Canadians to have the best justice system. From that perspective, we are, as Adair said, constantly going back and forth to say, "Is there more information you can give us that would help us with substantiating in a certain area?'' I think we're all working to the same end, which is ensuring that Canadians have access to justice.
[Translation]
Senator Dupuis: In clause 216 of Bill C-44, subclause 2, there is a reference to additional cost-of-living compensation for the Canadian North. The bill states that the judges of the Supreme Court of Newfoundland and Labrador who reside in Labrador, as well as the judges of the Supreme Courts of Yukon, the Northwest Territories and Nunavut, receive a cost-of-living allowance. Is the fact of residing in the Canadian North one of the criteria? Because it is also an objective criterion. For instance, if there are judges who live in northern Quebec, could they also be eligible for this type of compensation?
[English]
Ms. Crosby: With the northern allowances as prescribed in the Judges Act, it's available, as you note, to the judges of the northern territories as well as the judge in Labrador, and has been historically limited to just the judges in the northern territories. The government changed it as a result of a recommendation from two commissions ago, extending it to the judge in Labrador.
To the extent that there would be judges who travel to the North and Northern Quebec, they would be entitled to certainly their travel allowance. There has not been a request to extend the northern allowance to judges actually resident in the North.
[Translation]
Senator Dupuis: If there were a decision, could the judges of the Province of Quebec who practice in the North — if they reside in the North — also be eligible for this allowance? No? Thank you.
[English]
The Chair: Thank you, witnesses. I appreciate your appearance here today and your assistance with the committee's deliberations. It is much appreciated.
We're going to move in camera to hopefully give some direction to the analysts with respect to our report on this study so they can start their work, and also hopefully have translation done to bring to the committee in the near future.
To anyone who shouldn't be here, I would ask you to depart at this point, if you're not working for one of the senators or a staff person.
(The committee continued in camera.)