Proceedings of the Standing Senate Committee on
Issue 30 - Evidence - Afternoon Session
OTTAWA, Thursday, October 17, 1996
The Standing Senate Committee on Legal and Constitutional Affairs, to which was
referred Bill C-42, to amend the Judges Act and to make consequential
amendments to another Act, met this day at 1:00 p.m. to give consideration to
Senator Sharon Carstairs (Chair) in the Chair.
The Chair: Honourable senators, we are continuing our hearings on Bill C-42. Our
witness this afternoon is from the University of Calgary, Professor Ted Morton,
who is with the Department of Political Science.
We received your brief in written form, professor. Apparently, it is available
in English only.
Professor Ted Morton, Department of Political Science, University of Calgary:
Madam Chair, I am afraid I submitted my brief too late for the 48 hours it
takes to translate. However, I do have copies of the English version.
The Chair: Please proceed.
Mr. Morton: Honourable senators, I heard Senator Cools kidding Senator Beaudoin
as I was sitting here about still being a professor -- once a professor, always
a professor. I come before you today as a professor. I know that the view of
most of the world is that a professor takes too long to get to the point.
However, from another vantage point, that may be our vice from the practical
world, but it is also a virtue from another perspective. While I hope I will
not take too long to get to the point today, I will give you an abbreviated
overview of my written comments. I think that the time I spend hived off in the
ivory tower, so to speak, gives me a perspective of these issues that,
hopefully, will be of some use to this committee and to the Senate.
Thank you for inviting me here to testify on Bill C-42. The proposed amendments
to the Judges Act raise several different issues of varying gravity. With
respect, I believe that these issues are sufficiently serious to warrant more
study, deliberation and thus more time than the government seems disposed to
I will restrict my remarks to four aspects of Bill C-42. The first is clause 5,
which amends sections 55 and 56 of the Judges Act. I think this is the
principal policy issue in Bill C-42. It would create a new procedure that would
allow federally appointed judges to take extended leaves without pay to
participate in international activities.
There is, of course, a natural appeal in loaning some of our more outstanding
jurists to help in the important work of the United Nations or in helping to
establish the institutional underpinnings of the rule of law in newly
established democracies. Such a policy, however, is not without risk to the
institution of judicial independence within Canada itself.
In Canada, and in other common law countries, there is a long standing tradition
of discouraging, if not prohibiting, judges from participating in activities
outside the judiciary and the courtroom. When judges leave the courtroom to
participate in the broader world of politics, domestic or foreign, they are
likely to become embroiled in the inevitable disputes which characterize that
realm of endeavour. Peter Russell has observed that while it is difficult to
know where to draw the line, "There are reasons for insisting on some
limits to the off-the-bench political activities of judges in order to maintain
the two essential characteristics of the judicial office: impartiality and
In a similar vein, the Judicial Council of Canada recently pronounced:
Members of the judiciary should avoid taking part in controversial political
discussions except only in respect of matters that directly affect the
operation of the courts.
Similar caveats and the practices that put them into effect could be endlessly
In my written remarks, I identify and try to reply to four different
counter-arguments to the problem of the erosion of judicial independence that
is possible in this section of Bill C-42. The first argument is that because
judges will be sent abroad for these activities, they will go out of the
country; therefore, they will not become embroiled in internal, domestic
political controversy. For reasons I give in my written remarks, I think this
is highly optimistic and naive. For the same reason that Canadian foreign
policy raises political controversy within Canada, I think judges' involvement
in the carrying out of Canadian foreign policy as envisioned in Bill C-42
potentially runs the same risk.
A second defence of this provision in Bill C-42 is that judges already act
outside the strict judicial role when they serve as royal commissioners. Again,
for reasons I explain at greater length, I think the example of judges serving
as royal commissioners gives all the more reason to limit that exception and to
keep it to that exception. Almost everyone who has studied the role of judges in
royal commissions agrees that the principal beneficiaries of that practice are
not judges and the judiciary but, rather, political actors who want to lend
legitimacy to the reports that royal commissions undertake.
A third argument is that Canada should do this because other countries do it.
The examples given are Justice Goldstone, who was Justice Arbour's predecessor
at the War Crimes Commission in The Hague, and also the famous example of
Robert H. Jackson, the U.S. Supreme Court justice who served as prosecutor at
the Nuremberg war trials.
I suggest that South Africa is not a relevant country for Canada to compare
itself to. Relevant comparisons are other mature democracies with a
long-established rule of law and independent judiciaries. The American
comparison, of course, is relevant, but I suggest that the Jackson example is
actually the exception that proves the rule. With the exception of Earl Warren,
there are no examples of Supreme Court justices in the U.S. serving in
extrajudicial capacities since World War II. The controversy that Chief Justice
Warren has become embroiled in has people questioning the findings of the
Warren Commission. This shows the danger of judges stepping off the bench and
into the world of politics.
Chief Justice Burger, when he was asked to chair the bicentennial commission,
resigned as Chief Justice of the U.S. Supreme Court before taking up those
Foreign comparisons are relevant, but they have not been done systematically. I
would like to know -- and I do not know -- what the practice is in either the
United Kingdom or in Australia, or for that matter in France, Germany or Italy.
I think those would be relevant comparisons, and I am surprised that the
Justice Department, to the best of my knowledge, does not mention comparable
practice in those countries.
Finally, the last defence against the charge of the erosion of judicial
independence is not so much that this is not a threat, but the threat will be
minimized because it will be so rare and unusual for any judges to actually be
sent abroad. It is not so much a rejoinder to the criticism of allowing judges
to participate in extrajudicial matters abroad, but rather saying that it does
run some risk, but the risk will be minimized because this will occur so
infrequently. This is the message that the Justice Minister gave you in his
testimony on October 7.
However, that same day, just moments later, the Justice Minister said that he
receives requests for such assistance once a month. Subsequent discussion on
the committee indicated that there is a CIDA-coordinated judicial aid project
already under way that involves the Commissioner of Federal Judicial Affairs,
the Canadian Judicial Council and the Canadian Judicial Institute. In other
words, there appears to be, even without the authorization of Bill C-42,
considerable involvement of Canadian judges and other jurists in various
aspects of Canadian foreign aid already. This undercuts the claim that the new
role for judges contemplated in Bill C-42 will be a rare occurrence. In fact, it
makes it look almost as if this will be a consolidation of an already existing
practice or policy.
To conclude my comments on this section, the changes proposed by clause 5 would
constitute a significant departure from past Canadian practice and also raise
significant concerns about the preservation of judicial independence and
judicial impartiality. Before taking such a step, Parliament should inform
itself of the comparable practices of other mature democracies and engage in a
fuller discussion of the pros and cons of such a policy.
I list in my written submission a number of specific questions or criticisms
that I have. I will not repeat them now. This is found on pages 5 and 6 of my
brief. However, if the Senate chooses to proceed with Bill C-42, there are four
specific recommendations that I could suggest you might consider. Also, I have
added two more that are not contained in the submission before you.
I recommend, first, to amend the act to allow any judge to take only one such
leave in a career; second, to narrow the language in clause 5 to restrict
judges' so-called "international activities" to strictly "judicial
and executive roles" rather than the wide open language that exists now;
third, to add a maximum duration of the leave; and, fourth, to put a salary cap
on it. It has been brought to my attention by several judges and lawyers within
the last 48 hours that there are rumours flying around the country about the
salary that Justice Arbour is receiving in The Hague. No one has the slightest
idea of what her real salary is. As a result, the rumours get wilder and wilder.
A section in the act that would actually place a cap, for example, of
one-third, one-half or one-quarter of whatever the judge's current salary is,
would solve those sorts of problems.
I should now like to address and bring to your attention the relationship
between clause 5 of the bill and the conduct of the Minister of Justice and
Justice Arbour. If Bill C-42 raises the larger and more serious policy issues
that I have identified, why has the government tried to rush it through
Parliament as quickly as possible? It seems to me that the answer is widely
known. The government is concerned, as well it should be, with the current
status of Justice Arbour and the implications of her status for those
responsible at the Department of Justice. The government seems to hope that by
passing Bill C-42 as quickly as possible, it can legitimate retroactively what
appear to be certain indiscretions on the part of Justice Arbour and possibly
others. Here I will try to be as simple as possible. That is to say, is Justice
Arbour currently acting within the letter of Canadian law? This is a serious
issue for any individual, but it is especially serious for a judge who has sworn
to uphold the law.
I have done my best to ascertain the relevant facts on this issue. I list them
on page 7 of my remarks. If I have made errors of omission or commission, I
will be happy to be corrected.
Based on my understanding of the facts, Justice Arbour left for The Hague on
August 1 to undertake her new duties as special advisor to the UN Commission on
War Crimes. As of October 1, she officially took up her new responsibilities as
chief prosecutor for the commission. Apparently, the government has attempted
to authorize Justice Arbour's actions through two orders in council as
authorized by the current section 54 of the Judges Act. Does section 54
authorize leaves of this type of activity for which Justice Arbour has already
left? Mr. Rock's own testimony before this committee suggests not. On October
3, he told you that:
There is no provision in the Judges Act for a federally appointed judge such as
Madam Justice Arbour to be granted a leave of absence without pay to work for
an international organization such as the UN, nor does the act permit the
salary and expenses of a judge during a period of leave to be paid by an
organization or entity other than the Government of Canada,...
In addition, it appears from the sequence of events that Justice Arbour agreed
to the appointment before it had been approved by the Justice Minister or other
officials, thereby forcing the minister to react to a fait accompli.
Furthermore, it appears that the Justice Minister, rather than recommending to
Justice Arbour that she postpone her new activities pending the necessary
amendments to the Judges Act, sought to temporarily legitimate her actions by
an order in council. The minister admitted that the order in council was
insufficient and has since sought to legitimate retroactively Justice Arbour's
new employment with general amendments to the Judges Act, thereby forcing the
hand of Parliament. That does not seem to show a great deal of respect for
Parliament's role in the preservation of judicial independence.
While the House of Commons complied, the Senate refused to be stampeded into
acting precipitously and thus postponed legislation until this month.
It may be that I do not have all the facts; it may be that the facts that have
been released are misleading. However, if it is a matter of appearance, it
could be remedied by the disclosure of additional facts. Before taking further
action on Bill C-42, the Senate would do itself a favour by asking the Minister
of Justice to answer the questions that I have put forward on page 9 of my
First, what is the date and what are the terms of the orders in council
authorizing Justice Arbour's leave? Does this order in council, as renewed on
October 1, comply with the requirements of sections 54, 55 and 56 of the
current Judges Act? If it does not, why was it authorized?
Second, what has been the role of the Canadian Judicial Council in this matter?
Third, when precisely did Justice Arbour leave Canada to begin her work for the
Fourth, since Justice Arbour has left to work for the UN, whenever that was, has
she been paid; and, if so, by whom?
Some will say that this is nit-picking. My response is that it is not
nit-picking to ask appeal court judges and the Justice Minister to comply with
the letter as well as the spirit of the law. If justice ministers and appeal
court judges cannot be expected to comply with the rule of law, then who can?
In the House of Commons on September 26, Mr. Rock raised the issue of the rule
of law when he spoke of his intention to make a reference of the Quebec
referendum issue to the Supreme Court of Canada. Mr. Rock, on September 26 --
that is less than a month ago -- declared that:
...the rule of law,...is a living principle that is fundamental to our
democratic way of life. In substance, it means that everyone in our society,
including ministers of government, premiers, the rich, and powerful...is
governed by the same law of the land. We are all bound by the Constitution, by
the Criminal Code, by acts of Parliament and the legislatures.
And, by extension, they are bound by the Judges Act.
Mr. Rock has put a great deal of emphasis on Quebec complying with the principle
of the rule of law, but it would appear that he has not lived up to that high
standard himself in this matter.
The third issue concerns clause 6, which would amend section 59(1) of the Judges
Act, sometimes called the "Strayer amendment". This is a somewhat
technical issue. The issue is: Does the workload of the Court Martial Appeals
Court justify conferring these additional benefits on its Chief Justice? There
is evidence before you that suggests it is questionable whether the workload
justifies that and the fact that the person who would be the beneficiary of
this -- that is, the current Chief Justice of the Court Martial Appeals Court,
Mr. Justice Strayer -- was one of the judges who was off on foreign assignment,
shall we say, for three months in Hong Kong, which suggests that at least that
year the Court Martial Appeals Court was not so busy that they could not spare
The fourth and final issue deals with clause 3, which would amend section 44(3)
of the Judges Act dealing with pensions. Section 44(3) of the Judges Act
prohibits a federally appointed judge from collecting more than one pension
under the act. Clause 3 of Bill C-42 amends section 44(3) to allow the
possibility of a federally appointed judge to collect two pensions.
The purpose of this amendment is to accommodate the situation where two
federally appointed judges are married to one another and one dies. The
surviving spouse is then entitled to the pension of the deceased.
I also understand that this change is consistent with similar changes in other
public pension policies, all the changes with the purpose of accommodating the
new reality of the two-income couple. Thus, on a policy level, I have no
quarrel with this amendment.
The problem arises with the personal factors involved in the immediate
application of the proposed change. It was my understanding that the only
judicial couple, so to speak, that presently stands to benefit from the
proposed pension change is the Chief Justice of the Supreme Court of Canada,
Chief Justice Lamer, and his wife, Justice Danièle Tremblay-Lamer of the
Federal Court of Canada. I have subsequently learned that there may be two
judges in the Quebec Superior Court who would also benefit from this change.
Without imputing any illicit motive to any of the people involved in these
changes, I must observe that the timing of this proposed change could not be
worse. The pension change is before the Senate at the very time that Mr. Rock
is proceeding to the Supreme Court with a reference on the legality of Quebec's
so-called right to secession. While the timing is no doubt coincidental, it
invites the charge that the pension benefits that would accrue to the Chief
Justice, or more probably to his wife, payments that could be in the millions
of dollars, compromise the requirement of the appearance of impartiality. I
stress "appearance of impartiality". Sceptics can, and I suggest will,
claim that it is unacceptable for a Chief Justice who is about to benefit from
Mr. Rock's proposed pension policy change to also sit in judgment on Mr. Rock's
Quebec reference, the most politically sensitive constitutional case of this
decade. Indeed, this claim could be further buttressed, however unfairly, by
resuscitating the issue of Justice Tremblay-Lamer's appointment to the Federal
Court in 1993.
I hasten to add that I am not impugning the personal integrity of either the
Chief Justice or the Minister of Justice; rather, I am raising the issue of the
appearance of judicial impartiality, which is quite different but no less
important than the reality of judicial impartiality.
As Peter Russell has observed:
To be effective as adjudicators, judges need to be perceived as politically
impartial at least in the sense of not favouring members of the government in
cases in which they are directly involved.
That, unfortunately, precisely describes the case to which I have referred.
This distinction between judicial impartiality and the appearance of
impartiality has been recognized repeatedly in recent Canadian experience. I
quote from the first Charter of Rights case dealing with judicial independence,
the recent Bienvenue commission of the Canadian Judicial Council, Professor
Friedland's 1995 study on judicial independence and the Marshall inquiry. Even
Justice Lamer himself in 1991 emphasized that "the public's perception of
impartiality" is what is critical.
The issues before the Senate in Bill C-42 are, of course, totally different from
those raised in the Marshall and Bienvenue investigations. The principle,
however, that is, the appearance of impartiality, is the same. For the courts
and for judges it is not sufficient that they be impartial; they must also be
perceived to be impartial.
To clear the air under these circumstances, it seems to me that it would be
prudent for the Senate to request reassurance from the Justice Minister that
the initiative for these pension changes came from within his department and
not from the Supreme Court or from the judicial council. It would also seem
appropriate to ask the minister why he and his advisors did not anticipate how
their proposed pension reform could undermine the perception of impartiality
and why they did not move to pre-empt it by making the pension amendment apply
only prospectively, that is, not to judges already appointed.
Finally, to eliminate any appearance of impropriety, the Senate itself might
want to consider amending the pension provisions of Bill C-42 to apply
That concludes my remarks, Madam Chair. Thank you. I will try to answer your
Senator Nolin: I would like to give you the opportunity to talk about your
credentials. You teach the judicial system, do you not?
Mr. Morton: That is correct.
Senator Nolin: For how long have you been doing that?
Mr. Morton: In Canada, since 1981.
Senator Nolin: You have written much on this subject.As a matter of fact, I read
your book last night, which is why I went to sleep at three a.m. I commend the
book to honourable senators. It is very enlightening.
Mr. Morton: You should ask your library to buy the second edition. I could use
Senator Nolin: One proposed amendment to which you have not alluded is 56.1(1)
which refers more to a leave of absence with pay authorized by the Government
of Canada for international activities. You raised the question of the
perception of an independent and impartial tribunal.
I am concerned. A supernumerary judge, for example, could be on leave to perform
international activities, be paid an allowance by the government and have
expenses reimbursed, without more explanation in the bill, and come back and
act as a judge. Someone accused of murder, for example, may question whether
such a judge is independent.
I am concerned about that. Can you comment?
Mr. Morton: My concern is less with the perception of impartiality and more with
the use of judicial resources. I know some witnesses have pointed out already
that, to varying degrees, in both the civil and criminal courts in Canada there
are significant backlogs. If we statutorily approve the program of sending
active judges abroad, how will that affect the workload of the existing
It seems to me a rather simple matter to conclude that it will create further
backlogs through loss of personnel, unless of course you create additional
judgeships, which I notice was also included in Bill C-42. However, if you are
creating additional judgeships not for the purpose of the administration of
justice within Canada but because judges are going abroad, then you begin to mix
the function of the Judges Act and the function of the judiciary with
non-judicial matters, if not to the detriment of the administration of justice
within Canada, then at least to the higher cost.
I thought you were going to say something about the approval process. As I
understand, there are some changes for these types of leaves which would shift
the approval process possibly to the Commissioner of Federal Affairs, that is,
to someone in the executive, rather than requiring any sort of parliamentary
approval. I suppose in theory that could raise questions of compromising
judicial independence. In practice, I tend not to think so.
Senator Nolin: With regard to who is authorizing the leave, if you read only
section 56.1(1) with regard to leave with pay, it is the Government of Canada.
However, you must also read the proposed clauses 54(1)(a) and (b).
If it is less than six months, then authorization comes with the approval of the
chief justice of that court. If it is more than six months, it is the Governor
in Council, as indicated in 56.1(2).
We could hear from another witness as to supernumerary judges being judges but
half the time, or about them having free time. However, I think a supernumerary
judge is asked to sit only 10 weeks a year, which is half the normal workload.
Therefore, such a judge has free time. They can ask for leave with pay to do
From reading your book and hearing your comments, a judge is appointed to judge.
The way the Judges Act is written, that is what they should do, and almost only
that. The exceptions have been stressed. My first question is: Are we opening a
Mr. Morton: No one can read the future. However, to go back to what I said
earlier, if sitting judges go on assignment abroad under these changes, where
are they most likely to go? They are most likely to go to areas where there has
been ethnic, racial or ideological conflicts. Where is Justice Arbour right
now? What are the areas in which she is working? The former Yugoslavia and
To take just the issue of Yugoslavia, there are significant citizen, immigrant
and refugee populations from the ethnic groups involved in that conflict in
Canada, particularly in Toronto, which is where Justice Arbour and the Ontario
Court of Appeal sits. If she becomes involved in prosecuting within the context
of her work at The Hague, then she may be perceived by certain ethnic groups --
Muslims and Christians, for example -- as being somehow antagonistic to their
interest in the former Yugoslavia. That will carry back very quickly into the
Toronto community. Potentially, that could compromise her when she returns, and
she would have a reputation, at least among those communities.
The other example to which I alluded just parenthetically in my paper is this.
Let us imagine sending a Canadian judge to the West Bank to sort out land
claims there. If you think the land claims in Yugoslavia are complex and
controversial, the land claims on the West Bank make Yugoslavia look like
kindergarten. Would that not be a perfect place for a good Canadian judge to go
to make a contribution? In one sense, it would be; however, the judge who does
that will incur, almost inevitably, if not one set of critics in Canada, then
probably two, particularly if he or she were impartial.
That is the kind of indirect but significant potential for the erosion of
judicial independence that we run into by sending judges abroad and getting
them involved in foreign controversy. If that is what you are asking, then the
answer is yes.
Senator Nolin: If we read the proposed section 56.1(1), we see an enumeration of
four types of landing spots, while 56.1(2) envisages only two. The latter
refers to participating in international activities, something which is rather
broad, or international technical assistance programs, or in the work of an
international organization of states, or an institution of such an organization.
The proposed 56.1(2) has only the latter two and not the first two.
I am concerned with the first one. It is too large. International activities
includes everything outside the country. If I go to Paris for a month, then I
am engaged in international activities.
Mr. Morton: I think I agree with you. One of the recommendations that I made was
that the exceptions to judicial activity that are contained in the current
Judges Act, namely, if a judge leaves he or she must undertake activities of a
judicial or executive nature, should be included in any new leave policy for
international service as well. I think that would answer, at least partially,
your concerns, senator.
Senator Pearson: I was interested in your comments, professor, about
impartiality. This is an important issue of principle in our discussion. In
your text, you seem to refer to impartiality primarily as sort of a political
issue, that is, impartiality is not seen as being partial to one party or
another or, in the cases overseas, as being partial to one part of the
population as opposed to another. I presume there are certain distinctions to
be made between impartiality and independence. I feel that needs to be clear.
Our first witness this morning, Professor Arthurs, made a very significant
comment when he said that judges are human beings with opinions. My experience
has been that, over the years, many of us have questioned the impartiality of
judges, especially, for example, the fact that there are so many male judges.
To me, one of the strengths of trial by jury is that it is a way of balancing
what might be a possible bias on behalf of the judge. I am not so much
concerned about perceived impartiality, because I feel that we need to be sure
that we have the other pieces in place, the checks and balances, that the judge
in one role is balanced in some way by what comes before him or her.
My understanding of the kinds of appointments that have been made is that none
of those appointed would have been asked to go abroad to adjudicate a land
claim. They usually go to provide technical assistance, which I feel is
important. You were talking about a CIDA-funded project, as opposed to a
CIDA-coordinated, to give technical assistance to the improvement of the
judicial system in Ukraine. I would not like to see that excluded as an
How would you respond to the question of what we really mean by "impartial"?
Is it ever possible to be impartial, while recognizing that no one is
Mr. Morton: Obviously, no one has the famous tabula rasa, that is, a blank slate
of the mind. We all come to the table with our own experiences, what we have
read, our judgments and so forth.
What is meant by "judicial impartiality" is the willingness and
ability of a judge, given his or her predispositions, formation, training and
so forth, to come to the case before the court with as open a mind as possible.
That is quite different from the perception of impartiality. Perceptions of
impartiality may be quite unfair and inaccurate. Senators are not exactly
politicians in the sense that they run for office. However, you have all been
around politics. You know that in politics perception is reality. In terms of
the courts' interaction with society, the perception of impartiality is just as
important to the proper functioning of the courts.
Senator Pearson: That depends upon whose perception it is.
Mr. Morton: I am talking about the perception of the general public or groups
within the public. Let us consider, for example, groups within the public who
perceive a judge who has been prosecuting war crimes in Bosnia, or trying to
settle land claims in the West Bank, as anti-Muslim.
Senator Pearson: They are not prosecuting war crimes in Bosnia. They are doing
it in the Hague. There are some major differences.
Senator Beaudoin: The war crimes occurred in Bosnia.
Senator Pearson: Yes, but they are being prosecuted in The Hague.
Mr. Morton: The technical assistance programs, such as the one in Ukraine which
has been used as an example more than once before this committee, is, I would
concede, readily of quite a different nature. The risks of judges coming back
with the potential taint of perceived impartiality are much less in those
I would also point out that it is not at all clear -- and again this is in my
written paper -- that we are really talking about accomplished jurists here.
There are different types of jurists -- sitting judges, retired judges, law
professors and, perhaps, even professors of political science -- who have
studied the courts, the mechanisms of the judicial process and judicial
independence who would be potential candidates for this type of work. Judges
are not the only pool of talent from which to draw.
Senator Beaudoin: We have not yet dealt with the problem of the legal drafting
of this bill. I glean from those around this table that some have reservations
not against the bill but against its actual drafting.
On judicial independence, we have such cases as Vallenti, Beauregard and Généreux.
Judicial independence means that the executive should not intervene in the
field of judicial function.
This morning, Professor Harry Arthurs referred to the Lord Chancellor who has at
the same time executive, legislative and judicial functions. That is how it
happened in the history of England. More and more now, tribunals and the courts
of law are saying that not only should justice be done, it should be seen to be
done. A judge should be independent, impartial, et cetera.
What are we doing now? We are adding to the Judges Act a new dimension in terms
of international activities. In the past, Royal Commissions were headed by
judges. We have adopted sabbatical leaves for judges. We are now being asked to
accept the involvement of judges in international relations or international
organizations. Perhaps that is a good thing.
However, is the legal drafting of Bill C-42 accurate enough? You are suggesting,
I understand, some amendments to the legal drafting of the bill. I hear
objections not so much to the idea behind the bill but to the imprecision of
this bill as drafted.
Do you suggest an amendment to get rid of the idea behind the bill, or do you
suggest amendments in order for it to be more precise? We must remember who has
the final word on the Judges Act. In the field of interpretation, it is the
As parliamentarians, we should be wise enough to do our job and to define a
statute which is clear-cut. The idea behind the bill is quite acceptable.
However, is the legal drafting good enough? I would like to know more about it.
Mr. Morton: I must be honest. I have only thought about this as a policy issue
for the judiciary for the past eight days. I have not read enough in this
regard. In particular, I have not been able to gather enough comparative
information on how similar issues are handled in the UK, Australia or any
European democracy. Even my knowledge of American practice is limited pretty
much to the Supreme Court. There is a policy against other federally appointed
judges doing this, but I am not sure it is actually prohibited. Again, I am not
I am not definitively against the policy. I see an up side to it, but I am
concerned about its down side. In the best of all possible worlds, a more
deliberate study of comparable practice would be desirable. If there is not
enough time, then I would say that some of my concerns could be addressed by
tightening the language in the drafting, as you point out, senator.
There are a number of specific changes which I mentioned at the end of my
remarks, being one leave per career, capping the time limit, putting on a
salary cap and limiting the experience of the international activity to
functions of a judicial or executive nature. If I understand you, those are what
you mean by drafting issues. All of those would go a distance in meeting my
initial concerns about threats to judicial independence.
Senator Beaudoin: My second and last question is about section 100 of the
Constitution. My impression is that section gives the Parliament of Canada a
legislative discretion over salary, treatment and pension. Is that how you read
The last word is that it is left to the Parliament of Canada of which we are
one part. There is a certain discretion there.
Mr. Morton: Yes, judicial independence exists as much as a matter of convention
as a matter of law. You can point to a number of statutes, say, in the United
Kingdom, that involve judicial independence, but they are not constitutionally
entrenched. Certainly, Canada has a tradition of judicial independence.
However, the actual words "judicial independence" do not appear in a
specific document in Canada until 1982.
Senator Beaudoin: They appear in the Charter of Rights and Freedoms.
Mr. Morton: Yes, they appear in section 11 of the Charter of Rights and, even
there, somewhat indirectly. There, the reference is to a right to a trial by
jury before an independent and impartial tribunal.
It seems that we agree about the significance of the role of Parliament in the
protection, nurturing and evolution of judicial independence. Section 100 of
the Constitution Act, 1867 is an example of Parliament's role in this
Senator Beaudoin: In other words, are you saying it is our duty as
parliamentarians is to ensure the fair use of the discretion of the Senate and
the House of Commons with respect to the Judges Act? The Judges Act, in my
opinion, is a very important statute in the field of legislation. Since it is
directly related to the third branch of the state, it is of paramount
Mr. Morton: It is not a normal statute, I agree.
Senator Beaudoin: It is what we call in law an organic statute, at least, if not
a quasi-constitutional statute. In that sense, the discretion which is given to
the Parliament of Canada must be very respectful of our conventions. I agree
with you that everything is not found in the written part of the Constitution.
We also have our conventions which are very important.
Senator Cools: It is clear to me that you have taken the time and trouble within
the last eight days to read the legislation and all the proceedings. I thank
you for that.
I cannot make a motion before this committee, since I am not a member, but Mr.
Morton very sensitively summarized his remarks. Perhaps a member of the
committee could make a motion to append his total remarks to the committee
May I continue?
The Chair: Excuse me, Senator Cools?
Senator Cools: I was speaking. I was waiting for you to finish.
The Chair: I was trying to get advice as to what is the practice that we go
through. Obviously, all testimony becomes part and parcel of the committee.
Senator Jessiman: He did not read it in, he skipped whole paragraphs. I guess I
could read them in, if that were necessary, but I would like to think we have
all read it. I would like it put on the record as part of what we have received
The Chair: Attaching all the evidence to the proceedings is a potentially costly
Senator Cools: I am not referring to all our witness, but just this one.
The Chair: Yes. However, the precedent would then be there; it has never been
Senator Cools: I have sat in a lot of these committees.
The Chair: Senator Cools, could I finish my remarks, please?
Senator Cools: Certainly, Madam Chair.
The Chair: Of course, we would then set a precedent for this committee that
could lead us to, in fact, accept all written briefs and append them to our
proceedings. The printing cost of doing that would be very high.
Internal Economy has suggested in the past to not do this; however, this
committee is the master/mistress of its own fate and if we choose to do so, we
can. I suggest that we bear in mind that it is a costly aspect. I also suggest
that we leave this matter in abeyance and put it to a vote later this
Senator Cools: I was reinforcing the point that had Mr. Morton known the
procedure, he would have read every single word of his brief so that they would
appear in the proceedings of this committee.
Was there a motion, Madam Chairman?
The Chair: We will deal with such a motion later this afternoon.
Senator Cools: I would be prepared to wait a few minutes in order to deal with
The Chair: Senator Cools, I have ruled that we will deal with it later this
afternoon. If you are challenging the ruling of the Chair...
Senator Cools: I was not challenging the ruling of the Chair.
The Chair: Then continue with your questions, please.
Senator Cools: However, you challenge a lot.
My questions are twofold. Senator Beaudoin was speaking about the special nature
of the Judges Act. A proper understanding of the Judges Act would almost entail
reading 130 years of Canadian parliamentary debates.
Returning to drafting and scripting, the Judges Act contains two sections. One
deals with the composition and existence of the judicial council, which John
Turner created when he was Minister of Justice. Another part concerns the
creation of the position of the commissioner of judicial affairs.
My question for you is as follows: The Judges Act intended no foreign policy
role for the judges of Canada. Bill C-42 seeks to introduce a foreign
affairs/foreign policy role for judges. I have not been able to ascertain the
reasoning or the logic the Department of Justice followed in developing this
initiative. It seems to me that is was more a leap of faith; it is a leap in
Have you given any thought to what is basically an introduction of a foreign
policy/foreign affairs role and an international activities role, by moving in
on those two parts of the Judges Act which is the judicial council and the
commissioner of judicial affairs?
Mr. Morton: That is precisely why I suggested that this represents a major
policy innovation. The Judges Act as it exists now, and the authority for both
the judicial council and the commissioner for judicial affairs, contain no
reference to international or foreign activities whatsoever.
It is a major innovation. Again, I have not had time to do the type of
comparative research I would like to be able to bring to you, but it represents
a departure from practice in comparable English-speaking common law
democracies. As I said at the beginning of my remarks, and at the end of my
remarks, I am somewhat surprised, if not even dismayed, that the government
seems to be acting with such haste in trying to get these amendments through.
As I said, I think the government is concerned about the status of Justice
Arbour because her status is not clear. If the Judges Act were amended
according to Bill C-42, that would appear to put things right again, something
which would make many people feel better. However, in the process of putting
things right, I think Senator Cools has a point that a major change in the
Judges Act and in the Canadian judicial tradition will be legislated and
implemented. It is obvious from some of the peripheral evidence that people in
the federal office of the Commissioner of Federal Judicial Affairs and the
Canadian Judicial Council already have great interest, if not already existing
activities, in international affairs. This bill would tend to legitimize that
and open the door further. Perhaps that is the way the House of Commons and the
Senate of Canada think we should go; however, it does not seem to me that those
broader issues have been given a very wide airing yet, certainly not in the
House of Commons, if you have read the debate, or the lack thereof, when Bill
C-42 passed that place.
Senator Cools: This very complex matter is just hidden in two or three words in
the bill. As you said in your presentation, it is complicated by the fact that
the players who will be making the decisions about these judges have already
created an interest. I will come back to that.
The second point deals with something you mentioned briefly and this committee
has not spent sufficient time on it either. That is the issue of the funding by
CIDA. This represents an interesting constitutional departure. I am not
speaking in terms of the Constitution as a document, but in terms of
parliamentary usage. If judges will be receiving benefits from another
department of government, basically CIDA, what we are doing for the first time
is bringing judges' activities within the purview of, for example, committees
like the National Finance Committee. Traditionally, Parliament keeps some
distance from questioning the financial affairs of judges.
This is compromising judicial independence enormously. If this bill passes, from
then on I will not hesitate when we look at the Estimates to find out which
judge was where and when and how he spent that money. I will have no hesitation
to ask for breakdowns of those amounts. What we have done is removed
protections that were given to judges previously, and we are exposing judges to
questioning about every little entry in the Estimates. I can promise you
faithfully that I will help to do that.
I can get very little information on this CIDA funding. Everyone is very
tight-lipped about it. It involves millions of dollars. Have you given any
thought to the ramifications for judicial independence of having a civil
servant in charge of huge amounts of money and then supervising judges in the
administration or use of those funds? This bill is giving the Commissioner of
Judicial Affairs, who is a civil servant, enormous power over the activities of
judges. It is a serious thing. Parliaments for 200 years have contrived to
avoid such a situation, and this bill, in one fell swoop, is doing just that.
Have you given any thought to the consequences to the relationship between the
bureaucracy and judges, the executive and the judges, and the consequences for
We keep referring to judges, but the benefits here are being handed out not to
the average individual man or woman on the bench but to chief judges. Basically
what we have is the enhancement of almost an assembly of chief judges. I know
the question is a bit convoluted. However, I think you will try your best to
Mr. Morton: It seems to me this would be another manifestation, a concrete
example, of the general principle that the more judges involve themselves in
extrajudicial matters, the more those in the executive, legislative and
administrative branches will become involved in the work of the judges. One of
the things that is in the book that some of you were thumbing through is Chief
Justice Laskin's comment in the so-called Berger affair in 1981-82. He talks
there about reciprocity, and how the guarantee of preventing political
interference in judicial matters must be reciprocated by the self-restraint of
judges not to involve themselves in political matters.
If you study things from more of an institutional or political science
perspective, as I do, then you would put it differently: Wherever there is
power or privilege, influence will be brought to bear; and the more that there
is power and privilege exercised by judges, the more there will be attempts to
control the exercise of that power or the receipt of those privileges. You can
see this in the case of the U.S. Supreme Court. The extreme politicization of
the appointment process in the United States is a consequence of the very
political character of exercise of judicial review by the U.S. Supreme Court.
To come back to your specific examples of what are basically financial
administration matters that judges would become involved in through CIDA, under
what appears to be a new foreign policy role, of course that role will raise
new types of interactions which inevitably will bring scrutiny on judges by,
for example, legislators who are looking at budgets and budget estimates. It
will also bring them in contact with administrators who, perhaps, will be able
to influence the budgets that judges would supervise as part of these technical
projects. That is all new. Those would be some of the risks of going down this
Senator Milne: Professor Morton, I would like to talk about some of the broader
issues that you just mentioned to Senator Cools and try to get away from what
seems to me, to a certain extent, the personalities that you brought up in your
Do you feel that the Canadian judiciary should have absolutely no foreign policy
Mr. Morton: I have not said that today, senator. I would allow the possibility
for it to have some foreign policy role, but it would be much more narrowly
channeled and defined than in the language that I see currently. At least I
think I would. I have thought about this for eight days, as I said. If you
remember what I said at the beginning, professors take so long to get to the
point, but it is our vice and our virtue. I would very much like to know what
the comparable practice is in Australia and the U.K. If I were to find that
those countries allow no such involvement, or if they do allow such involvement
that it is a very narrow and carefully defined exception, then I would be swayed
by that evidence. I am not saying I am opposed in principle to any foreign
policy involvement by Canadian judges; I am saying that I am leery of it.
If I were sitting in your chair instead of this one, I would certainly oppose it
as a matter of policy as it is set out in Bill C-42. Again, to come back to
Senator Beaudoin's point, it is possible that with a bit more research and more
careful drafting, I could be persuaded to support it. I would not rule that out.
Senator Milne: To follow that through, then, professor, and perhaps to repeat
myself from this morning, upon what other sources of legal talent would
international organizations such as the UN draw, if they could not draw on a
group that I feel is in fairly good repute, that is, the Canadian judiciary?
Mr. Morton: I think there are larger pools of talent, and equal talent, in the
law schools, the professional faculties, even in the poor old political science
Senator Milne: Do you mean to act as a judge?
Senator Cools: She is not acting as a judge.
Mr. Morton: Not to act as judges, but to serve in these various technical
assistance programs, which presumably would be the broader, more common type of
foreign assignment. There are professors who specialize in contract and
property. This is not what you asked; but I think we could be of much greater
help in many of the countries in eastern Europe and in other developing areas by
lending them professors of property, contract and tort rather than human rights
Senator Milne: I strongly suspect that we do and that they do not have to go
through this procedure.
Since you disagree with the bill, do you feel that this is a case, then, with
respect to which the Senate should exercise its rarely used power to kill a
Mr. Morton: If I were a senator, I think I would use that power to delay the
Senator Nolin: You have referred to the late Chief Justice Laskin's statement or
letter on the final touch with respect to the Berger affair. He is referring to
two events that he opposed publicly. First, the government of the day was
planning to appoint a judge as deputy minister. Publicly, he said that a judge
cannot be a judge and a deputy minister at the same time. Second -- and this is
an important point -- in Ontario, they were trying to appoint a federally
appointed judge as chairman of the provincial Workmens' Compensation Board, a
quasi-judicial board. He was opposed to that.
In your professional and expert view, what is the reason for that? Justice
Laskin is a contemporary for us.
Mr. Morton: I think it is the principle with respect to the quotation I read
from Peter Russell at the beginning of my prepared statement that if judges mix
themselves in the work of legislative, administrative or executive branches of
government they, inevitably, will become embroiled in the controversies of
those various areas. The minute that happens, they are in a catch-22 situation.
If they are criticized and say nothing, then the criticism sticks; if they
reply to the criticism, then they immediately become perceived as partisan and
get embroiled in the political controversy of the day. I think that was the
dilemma the late Chief Justice Laskin had in mind.
Senator Nolin: Senator Cools just mentioned a very good point. If a judge
becomes the servant of a good cause and is paid by a federal government agency,
then that judge can become the subject of scrutiny. Do you see a problem with
Mr. Morton: There is a risk. It is a risk that should be thought through more
carefully before Canada takes this leap. I am repeating myself now, but I think
the haste with which this bill has been pushed through belies the seriousness
and significance of the policy issues that you and others have raised.
Senator Cools: To follow up on the last point you made, since Confederation, for
130 years, we have endeavoured to ensure that judges are not treated like civil
servants. In point of fact, this bill will make them more like civil servants.
In terms of our Canadian heritage and Canadian experience and also the
Whitehall-Westminster experience, it has always been that the office of a judge
is not available to leaves of absence in a certain way. If one traces the
historical development of these leaves of absence, one see the reasons the
Governor General of Canada was involved in the drafting of the BNA Act in 1867.
If a judge can now take a leave of absence to go off for many years to do
whatever, do you think that the Parliament of Canada could enact legislation to
allow a Member of Parliament to be excused from office? Let us say, for
example, that the Prime Minister of Canada or Senator Beaudoin wanted to go off
to be a prosecutor for a war crimes tribunal. In other words, if we open the
door to Parliament passing legislation -- which basically nullifies the
Constitution -- to allow absence exemption from office, why does it stop with
When I discussed this matter with The Commissioner of Federal Judicial Affairs,
Mr. Andy Watt, he said why cannot a Member of Parliament or minister get a
leave of absence to go off as well? The concept of abandoning office was
thought to be grounds for removal years ago because that is a condition of
Have you given any thought to the potential for or the consequences of the
expansion of what is happening in Bill C-42? Now we can begin to give leaves of
absence from all manner of offices. When the kitchen gets hot, a cabinet
minister can dip out and come back in three years.
Mr. Morton: At the risk of sounding overly academic, this is what is known as
the slippery-slope dilemma -- if you take one step, then you slide all the way
down. Of course, every alcoholic takes his first drink, but many of us drink
and we are not alcoholics. These are impossible things to predict.
I think the more central point of your remark, senator, is that the idea of an
elected legislator taking a leave of absence contradicts the very concept of a
representative. Does the concept of a judge taking a leave of absence betray
the concept of the role of a judge? I think an argument could be made that it
Senator Cools: That is my point. If we know how sections 99 and 100 of the
Constitution Act were developed, and if we know how they developed, say,
through Burke's act, also known as the Colonial Leaves of Absence Act, what is
happening now is exactly what they were intending to prevent. A person could
not basically decide they had something better, finer, more interesting and more
lucrative to do and just disappear to do it for a few years.
I think you have answered my questions at this time.
The Chair: Thank you, Professor Morton, for being with us this afternoon.
Honourable senators, a number of questions were asked by Professor Morton in his
presentation. If it is agreeable with you, I will call Mr. Sandell from the
Department of Justice to give us any information he can on the specific answers
to the questions that Mr. Morton posed. Perhaps Mr. Sandell could join us at
Mr. Sandell, as you know, a number of questions were asked by Professor Morton.
I will put those questions to you specifically in the hope that you can give us
some answers. Other senators may have questions for you as well.
I believe you have a copy of Professor Morton's presentation. On page 9, he
asks these questions:
What is the date and what are the terms of the order-in-council authorizing
Justice Arbour's leave? Does this order-in-council (as renewed on Oct. 1)
comply with the requirements of ss. 54, 55 and 56 of the current Judges Act?
Mr. Harold Sandell, Legal Counsel, Judicial Affairs Unit, Department of Justice:
I have that information, Madam Chair. I have copies of the actual orders in
council with me.
I would like to emphasize, in view of what has been said to this point, that
there is absolutely nothing whatsoever retroactive in this bill. It is entirely
prospective. The term "retroactive" was used a couple of times. I
want to make that point very clear. I do not have the actual orders here, but I
have the drafts. I know the details thereof.
Madam Justice Arbour was given a leave of absence in June or July -- I believe
it was July -- to take a leave of absence under section 54 of the Judges Act to
serve as the special advisor to the Secretary General of the United Nations for
the period August 1, 1996 to September 30, 1996. On September 30, under an
entirely new order in council -- again under section 54 of the Judges Act -- she
was given a leave of absence to serve as chief prosecutor of the International
Tribunals for Yugoslavia and Rwanda for the period October 1, 1996 to October
30, 1996, which includes the period that we are now in. Her current status is
that of being on leave of absence with pay -- and, I emphasize that -- under
the current provisions of the Judges Act for the period October 1, 1996 to
October 30, 1996. That is her present status. She is receiving pay and
allowances pursuant to the Judges Act through the Office of the Commissioner
for Federal Judicial Affairs. She is receiving nothing whatsoever from the
United Nations as we speak.
The Chair: Can you answer the second question, namely, what has the role of the
Canadian Judicial Council been in this matter?
Mr. Sandell: The role of the Canadian Judicial Council has been as was mentioned
in the testimony a couple of weeks ago by Mr. Andy Watt.
When the Department of Justice became apprised of the fact that Madam Justice
Arbour had been appointed by unanimous resolution of the United Nations
Security Council, the Minister of Justice wrote to the chairman of the Canadian
Judicial Council, Chief Justice Lamer, asking if the necessary amendment that
would be required in the Judges Act should be sui generis to Madam Justice
Arbour herself or be a general amendment to the act. The response of the
Canadian Judicial Council was that it should be a general amendment to the act
and not a sui generis provision.
The Chair: You have told us that she has been paid by the Government of Canada
under the Judges Act and that she left August 1 to take up her duties as
Mr. Sandell: I wish to add one more point in view of what has been said on the
record regarding the amendment to section 44(3)(a) of the Judges Act. That
amendment is contained in clause 3 of Bill C-42.
The initiative to amend section 44(3)(a) was made by myself without any
initiative at all on the part of any judge sitting on the bench in any court in
Canada. In fact, I had written a hypothetical memo prior to the appointment of
Madam Justice Tremblay-Lamer in 1993 wherein I stated that, as a hypothetical
situation, the wording of section 44(3)(a), which was implemented in 1955, would
preclude the surviving spouse of a judge who is retired from receiving a
survivor's pension. I put that on the file before there was ever a married
couple sitting on any bench in Canada. As soon as we were faced with the
reality of a married couple sitting as judges, I immediately began the process
for consulting with respect to obtaining a legal opinion concerning whether, as
a matter of law and as a matter of policy, we should amend section 44(3)(a) of
the Judges Act. This is something of which I have knowledge because I was
The initiative was entirely that of the Department of Justice. That point
should be put on the record in very clear terms.
Senator Nolin: Have you done comparative studies with other jurisdictions, as
suggested by Professor Morton?
Mr. Sandell: He suggested Australia and Britain. No, we have not done that. The
time element did not permit us to do that. We felt that the Judges Act required
clarification of this area of judicial or non-judicial activity. If in the past
-- and, the examples were cited by Professor Arthurs -- Canadian judges had
served in an international capacity, because we did not have the necessary
information at hand, then it was not clear on what basis they undertook those
duties. That information may be contained in the archives, but those activities
occurred before the existence of the Office of the Commissioner for Federal
Judicial Affairs and the Canadian Judicial Council itself.
If the three precedents, that is, those involving Justices Wilson, Fitzpatrick
and Macdougall, mentioned by Professor Arthurs were paid their Canadian
judicial salaries, then so be it. If they were not, we felt that the Judges Act
did not or should not permit that type of activity to occur without pay without
The purpose of the proposed section 56.1 in particular is to clarify the
circumstances in which a judge can, first, participate in international
activities, international and technical assistance which, I emphasize, is not
leave without pay. As you pointed out yourself, technical assistance and
international technical assistance and international activities are not eligible
for leave without pay. They can only be done either with leave or without
leave. There is no requirement that it be done with leave with pay altogether.
Leave without pay, under the proposed section 56.1(2) is limited to work for an
international organization or an institution of an international organization.
It must be for a period of at least six months and it must have Governor in
Council approval after consultation with the Canadian Judicial Council.
This is a fairly significant hurdle for a judge to meet after requesting leave
without pay under 56.1(2). It will not happen willy-nilly. That is clear and
Senator Nolin: With regard to judges' pay, did you read section 100 of the
Constitution before writing the proposed section 56.1(6)?
Mr. Sandell: Yes.
Senator Nolin: What is your reading of it?
Mr. Sandell: We take the view that section 100 gives Parliament the discretion,
particularly in view of the fact that the request for leave without pay would
be that of the judge, to exempt a judge, upon request and with the approval of
the Governor in Council and the Canadian Judicial Council, from the salary
assigned to the office of judge because the judge would not be performing
judicial duties for that period. Section 100, the fixed and provided provision,
is there for the protection of the judge. In fact, in this case under the
proposed 56.1(2), it would be the judge who requests leave without pay.
The discretion is there. Parliament has the duty -- it is not merely an
authority but, indeed, a duty -- to fix and to provide salaries for the office
of judge. If a judge is requesting leave of absence from that office, then the
judge can also request, under the terms provided in 56.1(2), that he or she be
exempt from the salary attached to the office. It would be in very
extraordinary circumstances that this would be done.
Senator Nolin: Why was the government not more specific in defining
international activities without referring to judicial functions?
Mr. Sandell: I guess we were trying to clarify what is already taking place.
Judges have in the past, as you know, participated in so-called international
activities under the current provisions of the Judges Act. We thought this was
the opportunity to clarify that type of activity. That is the purpose of
Senator Beaudoin: Can you cite cases?
Mr. Sandell: The example was raised a few weeks ago of Mr. Justice Strayer in
1989. If he or any other judges were to participate in such an activity now, it
would be under 56.1(1). It was undertaken in 1989 pursuant to sections 54 and
57. We preferred to have it done pursuant to a specific statutory reference to
Senator Beaudoin: That is one case.
Mr. Sandell: That is right. There have been, from time to time, judges who, for
periods of a couple of weeks, at the request of the National Judicial
Institute, which is the continuing education school for both federally and
provincially appointed judges based here in Ottawa, have travelled abroad to
developing countries. South Africa, Uganda and Cameroon come to mind. This is
done to assist the judiciary of those countries in developing training policies
and training activities for judges. In other words, it is judges helping
If that were to occur following the passage of this bill, it would be pursuant
to 56.1(1) and would not necessarily require leave of absence. It would always
be with pay. I emphasize that the judge would always be in receipt of his or
her judicial salary. It may or may not require a leave of absence. If it were
for a week or two, it probably would not. Judges often do this type of activity
on their vacation, for example, out of a sense of moral obligation. It would be
a great pity if that tremendous resource which Canada has in its judiciary
could not be used for this type of relatively rare and short-term activity to
help developing countries.
The Chair: Senator Beaudoin, I can name for you a few of the justices who have
done that. Justice Guy Richard of the New Brunswick Court of Queen's Bench went
to Cameroon. Justice Pierre Beliveau of the Quebec Superior Court and Justice
Guy Savoie of the New Brunswick Court of Queen's Bench went to Haiti. Justice
Douglas Lissaman went to Uganda. Those cases all occurred between 1992 and
Mr. Sandell: They were doing that in the absence of 56.1(1). If they were to do
it following the passage of the bill, it would be precisely pursuant to that
provision. We felt that the fact that this type of activity can be undertaken
should be fully disclosed by putting it in legislation.
Senator Nolin: It can already be undertaken.
Mr. Sandell: Yes, it can.
Senator Beaudoin: I do not see any difficulty with members of the Canadian
judiciary going to other countries to advise on how the judicial system works
in Canada. I think that is a very good thing. That is not a problem at all. If
it is something outside judicial duties, I agree that it should be in
Mr. Sandell: Even if it is within a judicial or quasi-judicial activity, the
proposed section 56.1(1) does not require that it be extrajudicial.
Senator Nolin: It permits it.
Mr. Sandell: It could be extrajudicial, although it does not necessarily have to
be. I suspect that the vast majority of circumstances, such as the one Senator
Carstairs mentioned, would be drawing on the qua judge's knowledge. In the case
of Madame Justice Arbour, which is of course under 56.1(2), it is her knowledge
acquired as a lawyer, as a professor, as a judge -- her all-encompassing
knowledge -- which is being put to use by the United Nations for this very
important international role. It may be extrajudicial, but it is certainly not
Senator Cools: I assume that as the department was preparing this legislation it
would have garnered various legal opinions. Would you share some of those
opinions with us? For example, on the Arbour amendment, what legal opinions
were given and by whom?
Mr. Sandell: We generated our own opinions. Clearly, there is no statutory
authority for leave without pay. That is evident. It became evident, as soon as
we found out the prerequisites of the UN position, that we would have to amend
the Judges Act. We began the process as soon as we could following that. It is
fair to say that the need for an amendment to serve without pay is self-evident.
That was the opinion, if I could call it that, which was the driving factor
As far as the amendment to 54.1(a) and (b) is concerned, that is, giving the
chief justice the authority to grant leaves with pay of six months or less,
that was a recommendation of both the 1992 commission on judges' salaries and
benefits, the Crawford commission, and the 1995 commission on judges' salaries
and benefits which the minister just tabled last week, the Scott commission.
Both recommended that chief justices be given authority to grant leaves with
pay for up to six months.
Senator Cools: I was hoping that the witness could share with us the particular
legal opinions that were advanced to the minister when these decisions were
made. In any event, I will go on to my next question. I may do better with it.
You said a few moments ago that the initiative for clause 3, the pension
amendment, was yours.
Mr. Sandell: It was made by the Department of Justice.
Senator Cools: Was this not the minister's initiative?
Mr. Sandell: It was our recommendation to the minister in the form of a
memorandum to cabinet to amend the Judges Act.
Senator Cools: You said you personally.
Mr. Sandell: I was trying to emphasize the fact that the initiative for this
amendment took place within the Department of Justice and not from any external
source or any judicial source.
Senator Cools: I see. You said you made notes in the file. What year was that?
Mr. Sandell: That would be following a discussion I had with an actuary from the
office of the Superintendent of Financial Institutions following one of the
triennial commission reports. I cannot remember if it was the 1989 commission
or the 1992 commission. I served as executive secretary of three triennial
commissions, and I cannot recall which committee it was. However, I remember
discussing it on a purely hypothetical basis at that time because there were not
spouses on the bench at that time.
Senator Cools: That is what I am trying to determine. What is "at that time"?
To what year are you referring?
Mr. Sandell: I cannot remember. I know it was definitely before the appointment
of Madam Justice Tremblay-Lamer.
Senator Cools: Was it at least before 1987?
Mr. Sandell: That is not when she was appointed. She was appointed in 1993, I
believe. It was a hypothetical issue at that point. The purpose of 44.3(a) is
to prevent a single surviving spouse from receiving survivor's annuities upon
the death of more than one spouse who was a judge. Back in 1955 it was not
anticipated that there would be couples on the bench. We recognized as a
hypothetical before there were couples on the bench that should couples be
appointed, we would have to amend that provision, or else the whole thrust of
the rest of the act, which includes entitlement to a survivor's pension, would
be defeated through the unintended over-broad wording of 44.3(a).
Senator Cools: If you have had this recommendation and this draft amendment for
a very long time, perhaps you could share with us why you have chosen to
advance it at this particular time and why you have chosen to advance it within
Mr. Sandell: Because it became available. We have not had a judges' bill before
Parliament in years. The last one was Bill C-50.
Senator Nolin: That is not quite right.
Mr. Sandell: You are referring to Bill C-2, Senator Nolin.
Senator Nolin: That is when we first met.
Mr. Sandell: I apologize. You are right, senator, that was Bill C-2, which was a
one-section bill to extend triennial commissions from six months to twelve.
Apart from that bill, which had a very specific purpose, the last bill that had
been tabled was Bill C-50. It was tabled by the Honourable Kim Campbell when
she was Minister of Justice, and it did not proceed past first reading. Bill
C-50 was tabled in December of 1991. In fact, the legislation was ready long
before that but it was not tabled until December 1991. Therefore, it was too
early for an amendment to 44.3(a), and we have not had an opportunity since.
Apart from Bill C-2, that minor bill regarding the extension from six months to
twelve with respect to triennial commission reports, this is the first
opportunity we have had to amend the Judges Act since Bill C-50 was tabled in
Senator Cools: I will put my next three questions one after the other so the
witness may answer them all in one, because I see he answers as slowly as I ask
Who chairs the National Judicial Institute?
Mr. Sandell: The president of the institute is a provincial court judge from
Alberta, Delores Hanson.
Senator Cools: Is there not a chairman?
Mr. Sandell: Yes, the chairman of the board of governors of the NJI is the Chief
Justice of Canada, ex officio. I believe there are three or four federally
appointed judges and three provincially appointed judges on the board.
Senator Cools: What was the role of the Department of Foreign Affairs in the
appointment of Madam Justice Arbour, and what is the salary that the UN is
offering Mrs. Arbour?
Mr. Sandell: I am afraid I do not know the answer to either of those questions,
senator. I cannot speak for another department, I am afraid. I believe Mr.
Axworthy would have been consulted following the UN resolution. Beyond that, I
am afraid I just do not know.
Senator Cools: I am hearing you say that you have no information and that it is
another department, which brings me back to my point that we should really hear
from someone in that department. I am hearing you say that the Department of
Foreign Affairs had no knowledge of Madam Arbour's appointment until it heard,
as we all did, of the UN resolution.
Mr. Sandell: I did not say that. I do not know.
Senator Cools: Tell me what you actually said.
Mr. Sandell: What I said is I do not know. I presume Mr. Axworthy was consulted
at some point. I do not know when and by what process.
Senator Cools: It is a big mystery to me, and I would like to know. I would have
thought that the normal procedure that would be followed in Canada is that the
UN would approach the Government of Canada to make a nomination, but none of
that seems to have happened in this case.
Mr. Sandell: I do not know.
Senator Cools: Obviously, the question belongs to another department.
Mr. Sandell: I can neither confirm nor deny that.
Senator Cools: If the question belongs to another department, why was Bill C-42
a bill to release Madam Justice Arbour, not being advanced by the Minister of
Mr. Sandell: It is an amendment to the Judges Act.
Senator Cools: I am saying you could have done it another way.
Mr. Sandell: What way?
Senator Cools: The Minister of Foreign Affairs could have brought one piece of
Senator Beaudoin: In this case?
The Chair: The Judges Act comes within the purview and responsibility of the
Minister of Justice, Senator Cools, and an amendment to the Judges Act would
therefore have to have been introduced by the Minister of Justice.
Senator Cools: I will reveal to you in my speech next week other ways that it
could have been done.
Where could I determine what salary the UN has offered Madam Justice Arbour? As
a Member of Parliament who is supposed to safeguard the business of fixing and
providing salaries of judges, where and how can I find out that information?
Mr. Sandell: A start, perhaps, would be the Commissioner for Federal Judicial
Affairs, assuming that he knows, and I am not sure that he does. I do not know.
Senator Cools: I have asked him.
Senator Jessiman: You say you do not know what this judge is receiving by way of
salary. Do you know if she will receive more than she would otherwise receive
from the Government of Canada?
Mr. Sandell: I truly do not know, senator.
Senator Jessiman: Did you hear Professor Morton today?
Mr. Sandell: Yes.
Senator Jessiman: You heard his concern then about careerism among judges and
the salaries that they will be given. There is no limit in the act as to what
may be paid by an international organization of states or an institution of
such an organization. Was there any consideration given to limiting the amount
paid, as is done with other judges when they go elsewhere, to a compensation
roughly equal to what they would receive in Canada?
Mr. Sandell: In fact, they receive their judicial salary. There is no provision
in the act for a judge to receive anything but his or her judicial salary.
Senator Jessiman: That is under the Judges Act, but under the proposed section
56.1(6) of this bill, a judge may receive remuneration for that period from an
international organization of states or an institution of such an organization.
Therefore, the judges may be paid not by Canada but, as in this case, by the
United Nations. Did you consider a cap?
Mr. Sandell: No, we did not.
Senator Jessiman: Having heard Professor Morton, do you think you should have
considered a cap?
Mr. Sandell: I do not think it is necessary. We can leave it to the good
judgment of the judge involved.
Senator Cools: To decline it?
Mr. Sandell: He or she can opt to receive, if feasible, his or her judicial
salary. That is not the case with Madam Justice Arbour. It is not feasible for
the UN's own requirements.
We did not consider a cap. Quite frankly, the concept of careerism for a judge
with the credentials and success to date of -- to use a present example --
Madam Justice Arbour, strikes me as bizarre. I do not think Madam Justice
Arbour requires ticket-punching at the UN, as it were, in order to "enhance"
her career. Judges do not have careers as such. They are appointed to the
bench. They may or may not move to another court.
Senator Cools: I want to piggyback on Senator Jessiman's question. I thank you,
Mr. Sandell, for trying to answer. You are wonderful.
It is well reported in the media that Madam Justice Arbour's next stop is the
Supreme Court of Canada.
Mr. Sandell: I cannot speak to speculation of that nature.
Senator Cools: I got that information from your department.
Mr. Sandell: It was certainly not from me, senator.
The Chair: Thank you, Mr. Sandell.
Honourable senators, I took in abeyance a motion by Senator Jessiman that, on
the request of Senator Cools, Professor Morton's brief be appended to today's
committee proceedings. The clerk advises me that this is an unusual precedent
and, in her view and in the view of Internal Economy, not a desired one.
However, it is up to this committee. The motion is before us.
All those in favour of the motion?
Senator Nolin: I am in favour.
Senator Beaudoin: I am in favour.
The Chair: All those opposed?
The motion is defeated.
Honourable senators, are we prepared to move to clause-by-clause study of the
Senator Lewis: If it is in order, I move that we report the bill without
The Chair: It has been moved by the Honourable Senator Lewis that the bill be
reported without amendment.
Senator Nolin: I know the motion has been moved already. However, I would like
to talk with my caucus. I have an amendment to propose but, before tabling the
amendment, I want to talk with my own caucus.
The Chair: I am prepared to call a meeting for 9:30 tomorrow morning.
Senator Nolin: My caucus is not in town. The Senate will reconvene next Monday.
We will have a caucus meeting on Wednesday morning.
The Chair: As you know, Senator Nolin, the reason why we called this particular
committee meeting today was to facilitate the passage of this bill before the
deadline of October 30.
Senator Doyle: I thought the meeting was called today to facilitate witnesses.
The Chair: No, that was not the reason. I called the meeting today because we
wanted to proceed with this bill as quickly as possible.
Senator Nolin: We do not hear witnesses just for the pleasure of hearing them.
It is also to learn from their knowledge and, perhaps, to help us in suggesting
amendments to the proposed bill. I cannot do that now in five minutes. I want
to read the blues before tabling an amendment so that I am sure it is the
proper one. Are we going to restrict such a large bill, a bill which gives to
the Government of Canada the possibility to do whatever it wants with judges in
Canada? Do we want to restrict that? I think so. With what words? I do not
know. I wish to look at the text. I will also need the support of my caucus on
Senator Stanbury: I recognize certain strategies. I have great respect for
Senator Nolin, but I am quite sure he was able to assess the evidence that he
has heard. The reason we are here today, as I understood it, is to get on with
this bill. We have the problem of an October 30 deadline again. We managed to
deal with the matter during an earlier extension. That extension is coming to a
Why not move ahead with this? We have a motion before us. The attitude of
caucuses is important, but this has run through a period of time which has
given lots of opportunity for discussion in caucus.
Senator Nolin: We had discussions but not on the comments of the expert
witnesses whom we heard today. I did not know until this morning the opinion of
Mr. Arthurs. I knew he was supporting the bill, but not his reasons. He had not
looked into all aspects, such as section 100 of the Constitution. He had no
clue about that section. For me, this morning's session was very informative.
Senator Stanbury: I appreciate that. I am expressing my understanding. I have
not heard anything to change that understanding.
The Chair: There is a motion on the floor. It is moved by the Honourable Senator
Lewis that Bill C-42 be reported to the Senate without amendment.
Is it your pleasure, honourable senators, to adopt the motion?
Some Hon. Senators: Agreed.
Some Hon. Senators: No.
The Chair: The motion is carried.
The committee adjourned.