Proceedings of the Standing Senate Committee on
Issue 31 - Evidence - Morning sitting
OTTAWA, Wednesday, September 23, 1998
The Standing Senate Committee on Legal and Constitutional Affairs, to which was
referred Bill C-37, to amend the Judges Act and to make consequential
amendments to other Acts, met this day at 3:40 p.m. to give consideration to
Senator Pierre Claude Nolin (Acting Chairman) in the Chair.
The Acting Chairman: Honourable Senators, this meeting of the Legal and
Constitutional Affairs Committee will now come to order. Before I introduce our
first witness, I would like to say a few brief words.
The minister will be available until 4:30. Therefore, we will try to limit our
questions to accommodate her time constraints. After the minister we will hear
from a round table of experts who must leave at 6:30, because most of them are
from outside Ottawa. We will then hear from Mr. Svend Robinson and REAL Women
As Senator Milne is not here, I will chair the meeting in her absence.
I have a few remarks to make on this bill. I intend to be relatively strict to
ensure that we discuss Bill C-37 and nothing else. This bill is intended to
amend the Judges Act.
These remarks are for the benefit of our listeners, that is for those who are
not physically here. My point in making this brief clarification is to ensure
that everyone understands the purpose of this bill.
We are being asked to consider two definitions: "surviving spouse" and
"enfant," in the French version. The bill also seeks a rather
technical amendment, mainly a change in the designation of the Ontario Court to
"Superior Court of Justice."
Among other things, the bill provides for changes to the retirement age of
judges, calls for increased compensation for judges, establishes a new judicial
compensation commission, provides authority to pay additional appeal court and
unified family court judges and makes changes to the judicial annuity scheme
and in particular, to the annuity payable to the surviving spouse.
The last commission to look into judicial compensation, the Scott Commission,
also raised the issue of the interest payable on contributions that must be
refunded when a judge leaves office before he is entitled to an annuity.
Without further ado, I would now like to turn the floor over to the Minister of
Justice, who is accompanied by her deputy minister. A question period will
The Honorable Anne McLellan, MP, CP, Minister of Justice and Attorney General of
Canada: I am pleased to be here today to speak to you on Bill C-37, An Act to
Amend the Judges Act. Let me begin by putting this bill in its proper context.
The judiciary is one of the foundation institutions of our democracy. Indeed,
with the adoption of the Charter of Rights and Freedoms, Canadian judges have
been asked to assume increasingly demanding constitutional functions,
determining issues of fundamental importance to all Canadians.
The government recognizes that, in doing their jobs, judges and their decisions
are not always popular. It seems to me that this is inevitable, given that we,
the legislators, give them the sometimes-unenviable task of determining some of
the most difficult and divisive legal, social, and economic issues of our time.
It is, I believe, for this reason that we do not want popular judges. Indeed,
it is and always has been of primary importance that judges are independent and
free to make those difficult and sometimes unpopular decisions.
It is the principle of judicial independence that provides the foundation for a
strong and courageous judiciary, as well as being a cornerstone of our
democratic society, a principle clearly reflected in and protected by sections
96 through 100 of the Canadian Constitution.
In 1981, in recognition of the importance of judicial independence and the
unique constitutional role of the judiciary, Parliament provided for an
independent commission to examine the adequacy of judges' salaries and
benefits. In September of last year, the Supreme Court of Canada reiterated the
fundamental constitutional role of such commissions, citing the federal model as
In its recent decision, the Supreme Court underscored the importance and
necessity of the role played by such independent commissions in ensuring public
confidence in the independence and impartiality of the Canadian judiciary.
A key part of that decision is to require a public justification by government
for a decision not to implement, or to only partially implement, a
recommendation of such a commission.
The most recent triennial commission, headed by David Scott, Q.C., heard from a
range of organizations and individuals, including all of the provincial and
territorial ministers of justice and attorneys general before putting forward a
thoughtful and comprehensive set of recommendations.
This government continues to support the principles that led Parliament to
institute the judicial salary commission process some 17 years ago. In light of
those principles and of the enhanced constitutional role of independent salary
commissions following the Supreme Court of Canada decision, we have given
serious consideration to all the recommendations of the Scott commission. It
was not unexpected that the issue, which has evoked the greatest interest since
the response was released and Bill C-37 was introduced, is the proposed
judicial salary increases.
The Scott commission recommended an appropriately phased, upward adjustment of
8.3 per cent on the expiration of the salary freeze on April 1, 1997. We have
accepted this recommendation, and Bill C-37 will implement the Scott
recommendation by providing a phased-in increase to judicial salaries of 4.1
per cent per year over two years, effective April 1, 1997. The proposal is
consistent with the government's view that it would be unreasonable for the
judiciary to not share in the necessary economic restraint that was exercised
from 1992 until very recently by all Canadians paid by the federal government.
I want to express my strong agreement with a statement made by former Chief
Justice Brian Dickson in a seminal 1986 decision on the issue of financial
security for judges, that case being R. v. Beauregard. The Chief Justice
observed as follows:
Canadian judges are Canadian citizens and must bear their fair share of the
financial burden of administering the country.
This view is echoed in the recent P.E.I. reference on judicial independence. I
quote from Chief Justice Lamer, who observed:
Nothing would be more damaging to the reputation of the judiciary and the
administration of justice than a perception that judges were not shouldering
their share of the burden in difficult economic times.
Canadian judges are entitled to receive fair compensation that reflects both the
importance of their role and the personal demands of their office.
In deciding what was reasonable, the Scott commission, in my view correctly,
recognized that a complex range of factors must be considered in establishing
an appropriate level of remuneration, including the need to ensure levels of
compensation that attract and keep the most qualified candidates for judicial
This view was supported by the Progressive Conservative House leader, Mr. Peter
MacKay, when he stated in debate that we need judges who will be competent,
judges who come from the practice of law and bring with them that experience.
That personal element does not come cheap. We must ensure that we will have
individuals who are prepared, in many cases, to make sacrifices by leaving the
Bill C-37 would also implement the Scott commission recommendation for certain
pension-related amendments to the Judges Act, including the rule of 80 which
will permit retirement when the sum of a judge's age and years of service
equals at least 80, and the judge has served on the bench for a minimum of 15
In our view, the proposed rule of 80 responds in an important way to the
changing demographic profile of the judiciary. More and more, judges are being
appointed at a younger age, and many of these younger judges are women. The
current provision, although based on the rule of 80, requires a minimum age of
65. A judge who retires before 65 has no right to a pension at all. Therefore, a
judge appointed at the age of 50 can retire with a pension at 65 with 15 years
of service, but a judge who was appointed at 40 must serve 25 years to receive
any pension at all, a situation that is increasingly considered unfair.
This situation is even more unacceptable when we consider that it has a
particular impact on women judges who constitute the majority of those
appointed at an early age. The rule of 80 would allow older, long-serving
judges to retire when they feel they no longer wish to continue in the role.
Permitting this would be good for them and for the court itself as an
The Scott commission has proposed a different retirement option for the judges
of the Supreme Court of Canada and recommended eligibility for retirement with
a full pension after serving a minimum of 10 years on the court. The government
agrees with the commission that the workload and heavy responsibility inherent
in membership on that court justifies the proposed retirement provision.
However, the government proposes to limit it to those judges who have reached
the age of 65 years.
The bill also makes other changes to judges' pensions in the interests of
fairness. One of the changes that has received recent media attention is the
provision that will allow common-law spouses to receive a survivor's annuity.
This provision responds to one of the recommendations of the Scott commission.
You may have seen the allegations contained in The Ottawa Citizen article. My
response was published yesterday. I wish to table my letter, as well as a
translation of it for the committee.
The Acting Chairman: Copies are available for those of you who may not have read
the minister's letter.
The new definition of "spouse" in the Judges Act is cohabitation of
one year in a conjugal relationship. Contrary to what some have suggested, it
is not unique but is consistent with the definition of spouse in all other
federal pension and benefit legislation. To address the possible situation of
two surviving spouses, one separated spouse and one common-law spouse, we again
look to other federal legislation for a consistent approach. The members of
Parliament pension plan, which includes senators, and the public service
pension plans, including the RCMP and the Canadian Forces' plans, provide for
an apportionment of the survivor's pension between a separated spouse and a
common-law spouse. The apportionment formula in Bill C-37 is based on total
years of cohabitation with a judge, which will favour the person who had the
longest spousal relationship with the deceased judge.
Bill C-37 will also give a judge who marries or commences a common-law
relationship after retirement the option of receiving an actuarially reduced
pension which continues until the judge and the spouse have both died. This is
a common feature of other pension plans.
A very important part of Bill C-37 is improvements to the process for
determining judicial compensation which will reinforce the independence,
objectivity and effectiveness of the process as a means of further enhancing
judicial independence. The Supreme Court of Canada, in its decision of last
September, set out guidelines for such process improvements.
In order to be independent, commission members must enjoy security of tenure by
being appointed for a fixed term and the judiciary must nominate a member. To
be objective, a commission must use objective criteria in arriving at its
recommendations and, to be effective, governments must deal with the
commission's recommendations with due diligence and reasonable dispatch.
That having been said, the Supreme Court expressly allowed that the details of
the institutional design should be left to the executive and the legislature
and jurisdictions should be free to choose procedures and arrangements which
are suitable to their needs and particular circumstances.
In light of these objectives and guidelines, Bill C-37 will provide for the
establishment of the Judicial Compensation and Benefits Commission. In our
proposed design, the length of time between commissions would be extended from
the current three years to four years. The new commission would conduct an
inquiry similar to that conducted by previous commissions, including public
hearings, and would invite submissions from all those interested in judicial
compensation, including the general public.
While this will be a permanent commission in the sense of having a mandate for a
fixed period of time, I wish to make it clear -- there was a misunderstanding
about this before the House of Commons justice committee -- the members of the
commission would be part-time only. As a general rule, members will only be
active during the first nine months of each four-year period until their report
is delivered. Furthermore, the members will only receive per diem fees for the
time they are actually performing commission business.
The commission would have nine months to complete its inquiry and submit its
report to the Minister of Justice. To provide flexibility, the time for
reporting could be extended on agreement by the minister and the judiciary.
The exception to the general nine-month period of activity is when the minister
decides to submit a matter to the commission for its inquiry, as permitted
under these proposals. This provision would allow for changes to judicial
compensation to be made where necessary between the fixed four-year time
frames. This is necessary in light of the new Constitutional requirement,
established by the Supreme Court, that future changes to judicial compensation
cannot be implemented without prior consideration by a judicial compensation
commission. This power to refer matters might also occasionally be used to have
more detailed and informed consideration of particularly complex policy issues.
That is all I will say about the commission. If honourable senators have
questions, I can outline further safeguards related to independence and such
I would flag one other important part of the bill, and that is the expansion of
the unified family court. Again, unless senators have questions, and I would be
happy to answer them, I will not spend time this afternoon on that.
As you know, we are working in partnership with those provinces which are
interested in the establishment of unified family courts. We will be extending
the unified family court experiment in this country in relation to four
provinces which have expressed an interest in this round. Those provinces are
Ontario, Newfoundland, Nova Scotia and Saskatchewan.
I believe we would all agree that unified family courts are an important step
forward in bringing a timely but also, I believe, a compassionate and fair
resolution to family disputes that we all know can be so difficult for a
variety of reasons. The bill does deal with the expansion of the unified family
In conclusion, I urge senators to support passage of these proposals in a timely
manner. The Supreme Court of Canada granted a stay of its independence
decision, that is the P.E.I. reference decision, in order to allow governments
to make the necessary process changes. In doing so, the court has recognized
the practical realities involved in making the necessary legislative amendments.
It also recognized the potentially disruptive impact on the administration of
justice across Canada if the new requirements were to apply immediately. This
stay is designed to give Parliament a chance, as in this case, to tailor the
law in question in the way that it thinks most appropriate within the
Constitutional framework. However, the court is rightfully mindful, as we should
be, that, in the public interest, such breaches should not be allowed to
continue for any longer than is absolutely necessary.
Honourable senators, I believe that these amendments will serve to strengthen
what is already one of the finest, if not the best, judicial system in the
world. I believe that the hallmark of a judicial system in which one can take
pride, and believe is impartial and fair, is the independence of the men and
women who sit on those courts. What we are attempting to do today is further
enhance, based on both the Scott commission recommendations and the
jurisprudence of the Supreme Court itself, that key component of our courts in
this democracy and in any civilized democracy, and that is the independence of
Senator Beaudoin: You made no mention of the division of powers. I wish to clear
up one point with you on that subject. Certain newspapers have reported that
some people believe that, under section 92(13), there would be an invasion of
provincial law pertaining to property and civil rights. Speaking for myself, I
see no problem in that regard because, under section 100, Parliament has the
right to legislate in relation to pensions, so it is not an invasion of les
successions du droit civil, for example. It concerns only pensions, and not the
law of succession.
Ms McLellan: I believe you are exactly right, senator.
Senator Beaudoin: I would raise a second point on which a great deal has been
reported in the newspapers.
Family law is partly provincial and partly federal, because marriage and divorce
are covered in section 91. Parliament may legislate in respect of marriage and
divorce and in respect to pensions. Therefore, when the bill refers to the
pension of a judge who is divorced or separated, or not divorced, or has a
common-law spouse, obviously, that is covered by section 91(25), marriage and
Ms McLellan: Yes.
Senator Beaudoin: I want to be clear on that right at the beginning.
The Acting Chairman: Is there any objection to that conclusion?
Ms McLellan: Out of respect for my former colleague, since we were both
constitutional law professors, I have learned to rarely disagree with the
senator's interpretation of the Constitution. His interpretation is quite
However, there was one point I thought Senator Beaudoin would raise relating to
the constitutional jurisdiction to create unified family courts.
Senator Beaudoin: I reserve that for next week.
Ms McLellan: That is fine.
Senator Beaudoin: I hope it is within the Constitution.
Ms McLellan: In fact, it is. The unified family court concept is designed to
meet the constitutional imperatives of section 96 of the Constitution.
Senator Beaudoin: Many constitutional points are raised by this bill.
If I understand the principle of the bill correctly, it is to harmonize the law
pertaining to the salaries of judges with pensions and salaries in other parts
of the public or private service. In other words, no special status is created
here for the judges. They would be in line with senators, and other civil
servants and others. Is it merely a question of harmonization?
Ms McLellan: Generally, that is accurate. There have been what one could call "omissions"
from the Judges Act. It has not kept up with changes in other major federal
benefit statutes, be those related to the House of Commons, the Senate, the
RCMP, the military or what have you.
We have seen many of these same kinds of changes, although they differ from
province to province, as we all know. There have been major changes to benefit
plans to keep up with the changing reality of societal and family life. In
fact, some of the provisions that you are considering, as proposed by Minister
Scott and as proposed in Bill C-37, are to bring the Judges Act in line with
most of our other federal benefits legislation.
Senator Beaudoin: This is not a statute that is particular to the judges.
Ms McLellan: No, not at all. As a matter of fact, some would argue they have
been disadvantaged for some years because other benefits legislation has moved
forward in terms of family structure and other things.
Senator Beaudoin: The last two questions are these: If a judge is divorced, the
pension goes to the new wife.
If he is divorced, he can remarry. The annuity will be paid to his new spouse.
Ms Judith Bellis, Senior Counsel, Department of Justice: Is the question: Does
the survivor annuity go completely to the new wife upon divorce?
Senator Beaudoin: Yes.
Ms Bellis: The answer is yes. That is not a change in the act. Under the current
law, survivor benefits and entitlements cease upon divorce. That is consistent
with many pension plans.
Senator Beaudoin: That is logical.
My second question is: If the judge is not divorced but is living with a person
other than his or her spouse, who will receive the pension, the person to whom
the judge is married or the individual with whom the judge is living?
Ms McLellan: Perhaps Ms Judith Bellis, the director of my judicial affairs unit
who works with these provisions all the time will explain to you the principle
of apportionment contained in this proposed legislation and why we have adopted
that principle of apportionment.
Senator Beaudoin: I want to know when the principle of apportionment comes into
Senator Cools: Mr. Chairman, the minister has told us that she can only spend a
limited amount of time with us.
Senator Beaudoin: That is my last question.
Senator Cools: Senators should have as much time as they require to ask
questions. I would suspect, as is the usual tendency, that the minister's staff
will spend more time dealing with our questions. Perhaps the questions we want
to pose to the minister's staff can be put after the minister has left so that
we can make the best possible use of having the minister here to assist us.
Senator Beaudoin: She may be able to answer the question in one minute.
The Acting Chairman: I would point out that, along with the department
officials, the deputy minister is with us today, and he will be available to
answer our questions after we have heard from all of the witnesses we propose
Senator Cools: My concerns is related to debating directly with the minister who
is with us today. If we have questions that the staff can answer, then they can
do that later.
The Acting Chairman: I understand that the deputy minister, Mr. Rosenberg, will
be available until six o'clock.
Senator Cools: Precisely. That is what I was saying. We could perhaps have a
dialogue with the minister.
Mr. Morris Rosenberg, Deputy Minister and Deputy Attorney General: I cannot be
in attendance since I have to fly to Vancouver. However, Ms Bellis will be
available, and we are prepared to return to respond to any questions you may
have after the witnesses have given their testimony.
The Acting Chairman: You may answer the senator's question.
Ms McLellan: Generally, we believe that the principle of apportionment is a fair
one. The principle of apportionment accurately reflects the time that one has
lived with the judge. As I understand it, under the CPP legislation,
apportionment does not exist, and it is the spouse with whom the judge is
living, the common-law spouse, who receives the total benefit. There is no
Most legislation is moving in the direction where the beneficiary or recipient
is the person with whom you are living at the time of death.
In this case we acknowledge the fact that, while that is fair in some respects,
it is potentially unfair. The better approach is the apportionment approach
which achieves relative fairness for both the individual who is no longer
cohabiting with the judge, and the individual with whom the judge is cohabiting
at the time of death.
For example, senator, if you were married for 20 years and you separated from
your spouse, and you then entered into a common-law relationship with another
individual for five years before death, then the pension, the annuity, would be
apportioned on the basis of living 20 years with one individual and living five
years with the other. However, under the CPP legislation, the common-law spouse
who has been living for only five years with the judge would receive it all. We
believe that our system is actually fairer to both spouses who have shared in
the life of that individual judge.
Senator Beaudoin: That answers my question.
Senator Bryden: To reverse what you said, if the common-law spouse had been in
that relationship for 15 years, but the person had then been married to someone
for five years, would the married person get it all?
Ms McLellan: No. I believe it is apportioned based on the definition of "spouse."
Ms Bellis: It is apportioned.
Mr. Rosenberg: The person who had lived with the judge for the longer period
would receive the larger share of the benefit.
Senator Bryden: The definition of "surviving spouse" includes a person
who cohabited with the judge in a conjugal relationship for at least one year
immediately prior to the judge's death. Let us assume that, after a 15-year
common-law relationship the decision was made to marry. It is a legal marriage.
Would the apportionment still apply in that case?
Ms Bellis: The apportionment would still apply, yes.
Senator Bryden: These are not trick questions. They are things we should
Clause 10 of the bill says:
Notwithstanding section 44, if there are two surviving spouses...
There could very well be three or more surviving spouses. Why are you
restricting it to two? According to what was just said, you could have a
common-law spouse for 10 years, you could then be married to another person for
five years, and you could then have another common-law spouse for five years.
Ms Bellis: The marriage would end the common-law relationship and the new spouse
would be the legal spouse.
Senator Lavoie-Roux: How many spouses can you have? If you marry four times,
will it be apportioned among four people?
Ms Bellis: No. Perhaps I did not understand your question.
Senator Bryden: If the judge died while in a common-law relationship this would
apply. However, if he ends the common-law relationship and married someone
else, he would then have a married spouse. You have indicated that by that
marriage he would have ended the common-law relationship for the purpose of
Ms Bellis: Right.
Senator Bryden: Legally, how does that happen?
Ms McLellan: I am sorry. Mr. Rosenberg and I were talking about this situation.
Could you put the question again, please?
Senator Bryden: It may be that what was stated before was not completely
accurate. It was stated that it matters not whether the common-law relationship
was at the beginning or at the end of the judge's term before his death. That
is, if a judge is married, is divorced, and then enters into a common-law
relationship for at least a year before his death, there would be an
Mr. Rosenberg: No. There is no apportionment in the event of divorce.
Senator Bryden: You are right. In the case of a separation and an ensuing
common-law relationship you indicated that there would be an apportionment.
There would be a married spouse and a common-law spouse.
However, if there were a common-law spouse before the first marriage, why would
the apportionment not include that common-law spouse?
Senator Beaudoin: It does not.
Ms McLellan: These are the vagaries of the modern family. We will have our
officials work on this. It is an important question, and we want to ensure that
we provide an accurate answer for you.
Senator Bryden: With regard to the naming of the members of the commission, what
happens if the two people who are selected -- one by the judiciary and one by
the government -- cannot agree on the third member?
Ms McLellan: As you know, senator, this is not an unusual provision. This exists
in some labour law situations and panels of arbitration where interested
parties name individuals who then choose an impartial chair. I have every
confidence that the government and the judges will be able to agree on an
impartial chair. There is nothing in our past to indicate that would not be
Senator Lewis: I suppose they could apply to a judge to decide who the chairman
Senator Cools: And the judges would be happy to decide. It is the best of all
Senator Bryden: To follow up on that, it is absolutely true that, as you say,
Madam Minister, this is done all the time under labour law and collective
agreements, but there is always someone to step in if the two parties cannot
agree. You are assuming that we are all people of goodwill and that there will
never be a disagreement. If that were the case, there would be no contract
Ms McLellan: Practically speaking, both sides could withdraw their nominees and
nominate two more individuals in an effort to agree on an impartial chair. I
think that, practically and pragmatically, this will be worked out. This is an
important commission and it might be possible to include some kind of mechanism
by which to resolve such a dispute, but that anticipates failure and a stand-off
which we have never experienced in the history of these commissions and which
we would not want to be seen to be encouraging, implicitly or indirectly.
Senator Bryden: In the 130 years since the implementation of the Constitution,
we have never had to have a Supreme Court ruling to reaffirm the independence
of our judges.
I have a question about the definition of a "surviving spouse." Clause
1 of the bill states that in relation to a judge it "includes a person of
the opposite sex." Does that violate the Charter of Rights and Freedoms or
the human rights acts? In many cases that is being struck down.
Ms McLellan: In fact, as you are all very aware, the law in this area is
changing quite quickly. My colleague from the House of Commons, Svend Robinson,
will be speaking to you and I know he will be making arguments to you in that
It is our view that, at this time, because of the evolutionary approach to the
law, both by the courts and by this government, we should proceed with the
phrase "of the opposite sex." You may be aware that, under my
predecessor, the government began some very important work that acknowledges
important and fundamental changes in our society. I am referring to work that
speaks to dependency or personal relationships of dependency. In fact, they may
be relationships between members of the opposite sex. They might be
relationships of a sexual nature between members of the same sex; or they may
be relationships that are not sexual at all, but which involve legitimate issues
of dependency among family members and so on.
We are in the process of this important policy work. As you can imagine, there
are implications in acknowledging the realities of our society today. For
example, a child may be looking after a grandparent in a relationship of
dependency or, perhaps, more likely, a grandparent may be looking after a
grandchild, or whatever the case may be. These raise fundamental questions in
the context of benefits such as, for example, who, and on what basis, would you
want to provide those benefits to in the case of death or illness of another?
That work is being done. It is not complete. We believe that what we have
before you here reflects the current state of the law.
Senator Bryden: It strikes me as a little strange that the Supreme Court of
Canada which read sexual orientation into the Charter in the first place, as
well as into human rights acts, is now taking a position where, ultimately,
someone may make a case before the Supreme Court of Canada and ask: Does this
definition go against your interpretation of the Charter?
Ms McLellan: In fact, senator, I have to be candid. Our approach is to deal with
this on a case-by-case basis at this point. I have made that plain as cases
have come forward from courts of appeal and from the Supreme Court. This
government is dealing with this issue on a case-by-case basis because
entitlement might very well vary depending on the situation in which you find
yourself and the legislation with which you are dealing.
However, I come back to the point that this is a broader issue than same sex and
opposite sex. This is really an issue about personal relationships of
dependency in our society today. We want to do that work. Indeed, that work may
lead to us coming back to both your committee and the Standing Committee on
Justice to offer an approach to many federal statutes, including entitlement and
benefit statutes, that reflect the outcome of that work.
Senator Bryden: If the only recommendation to come out of this committee were an
amendment stating that those four words be removed, would that go to the
fundamental principle of the bill?
Ms McLellan: No, sir, it would not.
Senator Bryden: Would it still have to go back to the House of Commons?
Ms McLellan: I do not believe that it would. However, I have outlined the
longer-term policy approach that we as a government would like to take to this
The Acting Chairman: This causes a procedural problem, which is exactly what we
will be discussing with Svend Robinson. The Royal Recommendation is based on a
specific amount of money in the bill. If we change that clause of the bill,
then we would be changing the Royal Recommendation. It must come from the House
of Commons. We cannot deal with it.
Senator Bryden: Mr. Chairman, are you saying that this is a monetary matter and,
therefore, we cannot remove those words? Do we have that many same-sex couples
in our judiciary?
Senator Beaudoin: No, we have very few.
Senator Cools: How do you know?
The Acting Chairman: It is not a matter of numbers. I think the answer of the
minister is quite clear.
Senator Cools: I did not understand. What were you saying about the Royal
Recommendation? This bill must have a Royal Recommendation.
The Acting Chairman: Yes, it has one.
Senator Moore: Minister, this may be stating the obvious, but in the examples
around the table with respect to apportionment between spouses, I suppose your
answers would only apply in the event that there is no separation agreement or
divorce order between the parties. Is that correct?
Ms McLellan: You are right. We are not talking about divorce here. You are quite
right that, in fact, if there has been a relationship, of whatever length, and
it has ended in divorce, then that would all be dealt with in the division of
Ms Bellis: That is currently the case. Under the current act, divorce ends the
survivor annuity entitlement. This is not a change. This has always been the
Senator Moore: I wanted to put that on the table. While it may be obvious, I
think it needs to be said.
How many provinces now have judicial compensation commissions in place?
Ms McLellan: All of them. However, I believe there are still some ongoing
constitutional challenges in provinces including my own, which is Alberta, in
relation to whether that which is in place actually reflects the principles set
out by the Supreme Court of Canada in the P.E.I. reference. In Alberta, the
judges are going back to court even after the provinces respond to the
As I understand it, all provinces now have a commission, or mechanism, that is,
dare I say, more or less independent. Obviously, some provincial courts in some
provinces may still have questions about whether those provincial commissions
are truly independent, based on the principles set out in the reference.
Senator Moore: The thinking is that those provincial commissions would be
dealing with the compensation of provincial court judges.
Ms McLellan: Yes.
Senator Joyal: Minister, I should like to follow up on the question asked by
Senator Bryden because I think it is important. You stated that this bill is in
line with other federal pension-benefit legislation. It has been brought to our
attention that, since the bill was introduced in the House of Commons on March
19, 1998, there has been a decision in the Rosenberg case which involves public
servants of Canada. It recognizes the same-sex benefits of pensions. Your
department has decided not to appeal that decision.
Ms McLellan: That is right.
Senator Joyal: This means that this is now the law of the land. Same sex public
servant couples are entitled to pension benefits.
Ms McLellan: That is only in the context of one specific section of the Income
Tax Act. We do not believe that Rosenberg even extends to other sections of the
Income Tax Act.
Senator Joyal: There is a principle at stake here. The judgment was not an
all-encompassing judgment. There was a principle at stake. Nevertheless, the
Supreme Court of Canada has recognized the principle.
Ms McLellan: That is exactly right.
Senator Joyal: Moreover, members of the Canadian bar, and there are some learned
lawyers among them, have consulted their branches. Their people have been
studying the issues. In its written submissions to the standing committee of
the other place, the Canadian Bar Association requested that the definition of
spouse be along the lines of that set out in the Rosenberg case.
You have said that this bill brings the system in line with the current state of
the law. I would humbly put to you that, in relation to the definition of
spouse, there is still some work to be done.
There is no doubt that, when we in the Senate study legislation we are trying to
avoid litigation following immediately after passage of the bill because of a
flaw in the legislation.
Senator Bryden has is a put it very clearly by saying that section 15 of the
Charter has already been interpreted by the court. However, there is no doubt
that the definition of "spouse" as it appears in that legislation
would be open to litigation if, for example, a same-sex spouse of a judge found
himself of herself being deprived of the pension benefit.
The bill was introduced in March when the case we have all been referring to had
not yet been decided. The bill was given third reading in the House of Commons
in June, 1998. The problem we are now facing relates to the question of
appropriation. That is a legal question with which we must wrestle. The other
issue we must deal with relates to the time frame within which the Parliament of
Canada wants to pass this bill. Of course, we cannot presume, if we amend the
bill, when the other place will decide to act upon it. It is difficult to vote
for a provision of the bill which is not in line with the current state of the
law, or if we are not satisfied that this bill, in fact, is not a step backwards
in relation to a decision that has already been made by the courts.
Ms McLellan: I must remind senators that, regardless of the change -- and some
might say "transformation" -- in the law, the court has always been
very careful, when they are considering specific pieces of legislation or fact,
to say that their ruling should be taken as not speaking to any other possible
extension of same-sex benefits in other situations. In fact, what a court would
want to do, quite rightly, is review every situation, as we do when we bring
legislation forward, to determine whether or not the extension of benefits, as
in this case, or the exclusion of some individuals, constitutes a violation of
the Charter of Rights and Freedoms, the Canadian Human Rights Act, or a
provincial human rights statute.
I will be very candid: This government's expressed approach to this is that we
will deal with every case on a case-by-case basis. The court has said that it
will take a similar approach. However, I would remind honourable senators --
and I said this in response to Senator Bryden -- that we are doing policy work
that potentially speaks to a fundamental change to whom benefits might be
extended within Canadian society, at least within the federal jurisdiction, and
that we do not want to restrict ourselves to a discussion simply of same sex or
opposite sex, but to consider a more legitimate question in Canadian society
which is one of true dependency. When that work is it done, as I have already
indicated, we may return to both you and the House of Commons with an omnibus
piece of legislation which will deal with the extension of benefits and
entitlements of one sort or another on the basis of dependency. That work is
well on its way, and my colleagues and I will be talking about it in detail
starting next week.
I take your point, unquestionably, that this area of the law -- to whom we
extend benefits -- has changed quite dramatically over even the past few
months. Having said that, we are in the midst of very important work, and we
believe that, after the government has had a chance to determine its ultimate
policy in this area, we may or may not be back to you. That is where we are at
at this point.
Senator Grafstein: Honourable senators, I am a bit confused. I do not see any
reference in here at all to the issue of dependency. As a matter of fact, it is
an almost archaic bill in that it refers to payment to a spouse or common-law
person based on cohabitation or conjugal relationship. There is no principle of
Ms McLellan: That is true.
Senator Grafstein: I was looking for the principle of dependency and I did not
Ms McLellan: Senator Grafstein, you are quite right, this is a fairly
traditional construct, when one talks in society about benefits and to whom
they are extended. What I was referring to in my responses to both Senator
Joyal and Senator Bryden was the work that we are doing right now as a
government, which may well move us forward -- and I will put my own bias on the
table -- in a very intelligent, responsive way, to look at this as an issue of
dependency in our society as opposed to simply sexual relationships of whatever
Senator Grafstein: I agree with that because a single judge living with his
mother or his brother has no dependants or a spouse in the legal sense and, as
a question of fairness, is not compensated.
Let me deal with another side issue and one small, technical point.
I was very taken by your letter to the editor of The Ottawa Citizen, on the
second page. The basis of your statement is that we should be actively looking
at this in a fair way to ensure the independence of the judiciary. You go on to
say that, unlike other citizens, the long-standing constitutional convention of
judicial silence prevents the judiciary from defending itself.
I take it you disagree with the Chief Justice's statement this summer that it is
appropriate for judges now to speak out to defend themselves.
Ms McLellan: Let me explain what the Chief Justice said.
Senator Cools: We should also table that. Most of us have read it.
Ms McLellan: I do not mean to be presumptuous to suggest that I could ever
explain what he said more clearly than he did. However, as I understand it, he
asked the question. He said that, in fact, the tradition has been that judges
remain silent, and silent in the face of even the most extreme provocation, and
he asked the question of the Canadian Bar Association, which is, as you say,
Senator Joyal, the most important governing body of our profession in many
respects. He said that if others do not come forward, if the bar does not come
forward, if the federal or provincial attorneys general of this country do not
come forward when judges are under unreasonable and unfair attack, then perhaps
those in the judiciary must start to address the question of whether they should
find ways, either directly as individual judges or other ways, to make their
views known, and to protect or defend themselves against that kind of attack.
That is my interpretation of what the Chief Justice said, not that he was
positively saying that judges should and will do this.
Senator Grafstein: Perhaps, Mr. Chairman, we will save that for another day. I
am not sure that I would have interpreted his speech in that particular
fashion. I parsed it very carefully and I came to a different conclusion.
However, we are always here to learn and study. I assumed he meant that he was
attacking the political system in this country for not defending judges
properly. That is what I thought he said.
The Acting Chairman: If I may interrupt, let us stay within the purview of Bill
Senator Cools: On a point of order, since the particular speech in question has
been raised, perhaps we all could have copies of it and consider it tabled. I
would be happy to table it. To the extent that it has been brought before us by
the minister, it should be properly before us.
The Acting Chairman: It was not, I understand, brought up by the minister.
Senator Cools: It was.
The Acting Chairman: She was answering a question. I will agree to the
circulation of the document.
Senator Cools: That is the proper thing to do, so that we will all have the
words before us.
The Acting Chairman: In due time, we will deal with what we shall do with the
text. Up to now, jurisprudence from the Supreme Court is signed by all the
judges. It does not come from a speech by one judge.
Senator Grafstein: A small technical point in the bill gives me some concern. I
am referring to the proposed section 45. It requires a judge to make an
election. A judge makes an election. I assume that he cannot make an election
in his will, as an example. What happens if the judge does not make an
election? Is he out to lunch? Is his spouse or the person with whom he is
cohabiting out to lunch? Is that fair?
Ms Bellis: This is an entirely new provision. It does contemplate that it is for
the judge in question to decide with her spouse whether they wish to have that
stream of income during the pension period, or for them to elect to use this
process to do financial planning post her demise. It is essentially
facilitating a choice on the part of the judge and his or her spouse.
Senator Grafstein: I know many judges, as do many senators. If they fail to make
that election, are they out to lunch? Have they missed the boat?
Ms Bellis: This refers to a post-retirement marriage.
Senator Grafstein: I understand that. Does that seem fair?
Ms Bellis: At this point there is no option to do post-retirement planning.
Senator Grafstein: I understand that. Is it fair to say that, if a judge does
not make this election, his surviving spouse will not receive an annuity? If
the election is made the spouse would receive something; but, if it is not
made, then the spouse will lose.
Ms Bellis: During the course of the post-retirement period, the judge and his or
her spouse would have enjoyed the full benefit of that pension payment. For
example, assuming the election is to take two-thirds of the pension now and
have the provision made for the balance, the one-third, to be paid in the
period of widowhood, then that is, essentially, a financial-planning decision.
If that is not made, then the spouse, has the benefit of the full pension flow
of income during the period of the judge's remaining life. That is the policy
choice reflected there, and it is left as a choice.
Senator Grafstein: We will leave that for now and come back to read your answer
more carefully. I think there is a gap there. Maybe you could reconsider it as
well. If I am wrong, that is fine. I think there is a gap that we might want to
Senator Lavoie-Roux: I see from your letter that this way of doing things exists
elsewhere in the public service, such as the military. Has it created problems?
What happens when a judge divorces his wife to live with a common-law wife?
Ms McLellan: If he divorces his wife, that is a completely difference situation.
It would be a situation where a judge is married and she and her husband
separate. Then she begins a common-law relationship with another individual,
but there is no divorce.
Senator Lavoie-Roux: There is no divorce.
Ms McLellan: That is a different set of circumstances, covered by different
Senator Lavoie-Roux: Could he have yet another common-law wife so that three
would be splitting the pension?
Mr. Rosenberg: That is similar to Senator Bryden's question. We will check this
very carefully, but from what I understand now, once a common-law relationship
is ended -- by marriage, for example -- that is it. It is like the analogy of
divorce in common law. That former common-law spouse would not be entitled to
Ms Bellis: She would no longer be considered a common-law spouse.
Mr. Rosenberg: You are always only dealing with two. If you are married and
divorced, divorces of the former spouse will be dealt with through the
settlement in relation to the divorce. You are always only dealing with two. It
is not three or four.
Senator Lavoie-Roux: My question was with respect to other parts of the public
service. Has this raised any problems?
Ms McLellan: Not to my knowledge. We will check that for you. When we developed
this legislation and when we looked at these provisions, it was not brought to
our attention that there were any problems in applying these provisions in
other areas. DND or the RCMP are very large institutions. They have had much
more experience with these kinds of provisions than judges will ever have. We
are dealing with a relatively small number of people and relationships. However,
we will check to see whether they have had any problems with the application of
Senator Lavoie-Roux: I am older than some of my colleagues, but I was really
surprised by this. Marriage is one thing. I think others from my generation
would also be surprised that this comes from the government. I suppose the
judicial commission recommended this.
Ms McLellan: It was one of the recommendations from the Scott commission.
Senator Lavoie-Roux: I know of a judge who is married and is not very happy in
that marriage, and I am sure there are others. However, should we change our
whole approach on account of a few judges who are not happy?
Ms McLellan: Let me say this very clearly. This proposed legislation is not in
response to any individual judge or relationship. There are over 1,000 judges
in this country, and I want to assure everyone in this room that I do not know
about their personal relationships. I do not care to know about their personal
relationships unless they lead to a complaint to the judicial council, at which
time, if there is a recommendation for removal, it will come to me. Otherwise,
that is their business, and it does not interfere with the work they do.
Keep in mind that someone could be married to a judge for 20 years and then
leave her husband for someone else. That 20 year-relationship would not be
recognized in any way in terms of a survivor's benefit. What we are doing is
acknowledging the fact through the principle of apportionment that there have
been two relationships. We would apportion the survivor's benefit between the
two individuals on the basis of the length of the relationship. I think that is
fundamentally fair, unlike what we have seen in legislation such as the CPP.
You may have been married to someone for 20 years. Under the CPP, if he leaves,
not divorcing you, has a common-law relationship and dies, that person may have
been with him one year and one day, and she gets everything. Under our
provision, that would not happen.
Senator Cools: Perhaps the minister could clarify that. I think we should make
if clear that the quantum, the amount of money involved in judicial pensions,
far exceeds anything paid through the CPP.
Ms McLellan: It is the principle, not the amount.
Senator Lavoie-Roux: You said that there are 1,000 judges.
Ms McLellan: That was an estimate.
Senator Lavoie-Roux: They will receive an increase of about 8 per cent, is that
Ms McLellan: Yes; phased in over two years.
Senator Lavoie-Roux: How much money does this involve? There was quite a bit of
criticism in the other place about the cost of this increase. Judges are not
social-welfare recipients. This increase will place some of them in the range
of $200,000. I should like to know the whole global sum.
Ms McLellan: Do you want the annual increase as a result of the salary
recommendation -- that is, the global increase, year by year?
Senator Lavoie-Roux: Yes. What will it cost the government?
Ms Bellis: I do not have the global number, but I have the salary increase here.
Senator Lavoie-Roux: We have those numbers.
Ms Bellis: We could do the calculation on the current number of puisne judges,
but it would not be absolutely accurate.
The Acting Chairman: The précis that was provided to committee members
includes a table that contains some calculations.
Senator Lavoie-Roux: I want to know the global cost, though.
Ms McLellan: When we took the matter to the Treasury Board, the dollar amount
was in the millions, but not many.
Ms Bellis: It is $20.5 million over the next two fiscal years.
Ms McLellan: When we see what a judge makes presently -- that is, $149,000 or
$152,000 -- we all must resist the temptation to say that it seems like a lot
of money. However, it does seem like a lot of money to all of us -- that is, to
me as a cabinet minister; to you as senators; and to a lot of Canadians.
Senator Lavoie-Roux: I was not thinking of myself.
Ms McLellan: I refer you to the comment made by Mr. Peter MacKay in committee,
namely, that the judiciary is one of the foundations of our democracy. We want
to attract the best people. We do not want to punish people for serving their
country as members of the judiciary. We want to attract people who are highly
qualified and who are at the top of their field. I can assure you that everyone
I appoint to the bench takes a significant cut in pay to serve his or her
Senator Bryden: They all must be from downtown Toronto. For most of the people
who are appointed in New Brunswick, it is the best money they have ever made in
their entire legal career.
Ms McLellan: That may be the case in some small centres, but we want to attract
the best qualified people to the judiciary. Therefore, we want to ensure that
they are compensated fairly for the work they do -- not only in terms of past
experience and credentials, but also in terms of the responsibility that we
impose upon them.
I take very seriously my role as Attorney General in relation to the judiciary.
I make no apologies for wishing to pay members of the federal courts in this
country a reasonable, fair wage for the work that they do. These are not
numbers that I came up with; they are numbers that the Scott commission, an
independent body, came up with after hearing from all interested parties,
including members of the public, the CBA and others, taking into account the
economy, wage freezes and a whole range of factors. An independent body
determined that, based on what these men and women do and the experiences they
bring to the job, these proposed, phased-in increases were fair. I do not
quibble with the work that David Scott and his commission did.
Senator Cools: I did not hear anyone here say that judges should not be well
paid. I have voted on many bills to set judges' salaries. At the time, I always
thought I was paying judges very well. The concern is that some may be
suggesting that they are not being paid well.
Recently, I poured over some data on this subject matter. All the data that I
have read tells me that a judicial appointment represents a significant salary
increase for the appointee. No one here resents that; we just want to
acknowledge that they are well paid. I have that data and I would be happy to
place it before the committee, if you wish me to do so.
You have said that clauses 1, 9, 10 and 11 would parallel or match the situation
that members of Parliament face regarding their retirement allowances. If you
turn to clause 11 of the bill, which is found on page 8, that is a new version
of section 6.1 of the Judges Act.
Could the minister tell us where, in the Members of Parliament Retirement
Allowances Act, an equivalent clause is found?
Ms McLellan: I was not speaking about that provision. I was speaking about our
debate and discussions surrounding the concept of "surviving spouse"
as it applies to apportionment. This is a different provision. You are speaking
about section 46.1 of the Judges Act?
Senator Cools: Yes, clause 11, page 8 of Bill C-37. While you are looking at
that, could you also look at clause 9 of Bill C-37, which amends subsection
44.4 of the Judges Act? There is a provision for the Judges Act to supersede a
separation agreement and to prevent a spouse from going to court to allow her
or him to change their mind.
My point is quite narrow in this particular instance. We are told, again and
again, that this bill is only bringing the Judges Act into consonance with the
Members of Parliament Act. However, this is totally different.
Could you wrap your mind around those two clauses and tell us how those two
provisions compare to the Members of Parliament's Retiring Allowances Act?
Ms McLellan: We will do that work for you, but that was not what I was referring
to, and I think people understand that.
Concerning section 46.1, do you want to talk about the policy reason for the
lump sum payment when a judge dies while holding office?
Senator Cools: I do not want to talk about the policy consideration.
Ms McLellan: The policy considerations are not unusual. They in fact exist in
other legislative schemes, in terms of why, upon death, that one-sixth payment
is paid to the cohabiting spouse.
Senator Cools: You say, Madam Minister, you were not speaking to policy, you
were speaking to the issue of apportionment. On the issue of apportionment
then, why is not section 46.1, the lump sum payment, apportioned as well?
Ms McLellan: That of course requires a policy discussion, which you just asked
me not to go into. In fact, it was decided that if there were two surviving
spouses, based on the definitions in the Judges' Act, the spouse who was
cohabiting at the time of the death would be the beneficiary of the one-sixth
payment. The purpose of said payment is to cover things such as funeral
expenses, to deal with the immediate expenses surrounding death. In fact, in
almost all cases of unexpected death, it is the cohabiting spouse who bears the
burden, and I use only one example, of funeral expenses. That is why that
payment is being made. It is acknowledgement of the fact that there will be
unexpected and immediate expenses, including those surrounding the funeral,
that the cohabiting spouse, in most circumstances, would be expected to bear.
That is why it is not divided. In fact, if a person were separated from his or
her spouse and has not lived with the person for 10 years, it would be highly
unlikely that that person would bear any unexpected expenses surrounding the
death of that individual, such as a funeral.
Senator Cools: I have another question.
The Acting Chairman: I wish to make sure that your question can be answered by
the deputy minister. I have another senator who wishes to ask a question and
the minister is leaving in two minutes.
Senator Cools: Perhaps then we could arrange for the minister to come back
another time. There is nothing wrong at all with the minister's officials
answering questions about the legislation, but I think many of our questions
are policy questions. My next question is a policy question.
My question builds on Senator Bryden's and even Senator Joyal's question. If we
look at clause 1 of the bill, we find a definition of "spouse" -- and
I will not repeat the definition. However, following on the discussion that
preceded the question of same sex, what I understand you to say is that despite
the fact that the courts have ruled in same-sex cases the way they have, despite
the very judges themselves who are making those judgments, you will stay with
this definition of opposite sex.We all know very well that it will not be too
long before this will be challenged in court. Since the judges have already
changed it, they will just change it to mean opposite sex.
Could a cynic not say that this is an instance where the public policy issue
involved here is being left to the courts to determine?
Ms McLellan: No. In fact, I believe I have outlined both in relation to Senator
Joyal and Senator Bryden that we are in the midst of very important policy work
that speaks to perhaps a reconfiguration or transformation of the way we think
of our entire entitlement provisions, not only in legislation but within our
society on the basis of dependency. In fact, that policy work, the key policy
work, is being done by this government and we are well ahead of the courts in
that regard because they have not really talked about dependency directly in
their judgments. They have concentrated on same sex, opposite sex. I am not
criticizing them for that, but we as a government believe that there may well
be a more important change happening in society, as I have already described,
that deals with relationships of dependency. We are doing that policy work and
no court is forcing us to do that work. We just think it is important, based on
what we see happening in society.
Senator Sparrow: You stated that you knew nothing about any relationships, had
no personal knowledge of any judges requiring this provision or who would take
advantage or use the system. How did the request come to you, then, and to the
department? If there is correspondence from individual judges or individual
proponents of the provisions, could those be tabled with the committee?
Ms McLellan: In fact, the Scott commission made the recommendation that you have
before you. Mr. Scott, in his inquiry, offers this as one of his
recommendations. I know this is an important point for you, so let me just read
to you in terms of this particular issue surrounding the apportionment of
annuities between surviving spouses. It says that the Canadian Judicial Council
and the Canadian Judges Conference made a joint public submission to the Scott
commission in December 1995 and that this was the first and the only time that
the judiciary provided its views on the entitlements of common-law spouses.
The first time I was aware of any discussion surrounding this issue was when I
read the Scott commission recommendations.
Senator Sparrow: Could we have copies of any correspondence that came to the
department in relation to this?
Ms McLellan: Is there any correspondence?
Ms Bellis: I am not aware of any correspondence.
Ms McLellan: We will certainly look through our files. In fact, keep in mind
that the recommendation came from the Scott commission, which is an independent
body. The commission held public hearings, to which the CBA and the Canadian
Judicial Council and the Canadian Judges Conference all made submissions in
The Acting Chairman: If I may, what we have as public is the report of the
commission. It is not up to the minister, nor us to ask the minister; it is up
to the commission. One can seek that information from the commission, but not
from the witness we have before us.
Senator Sparrow: The question related to anything that the department has from
The Acting Chairman: I thought the answer was no on that.
Senator Grafstein: You criticize the Chief Justice of Canada for silence. I do
not think it is appropriate for this committee to obtain information based on
legislation from the judge to their political representative, the Attorney
General of Canada, and that we should have that as a public document. That to
my mind is not appropriate.
The Acting Chairman: We ruled that out.
Senator Grafstein: I respect my honourable colleague opposite, but you cannot
have it both ways. You cannot criticize the judiciary for remaining silent and
not have their privacy protected by the Attorney General of Canada. I do not
want to see that information, quite frankly.
The Acting Chairman: We will not get that information.
Ms McLellan: We will follow up on some of the questions. I apologize, Senator
Bryden, that we were not able to answer with crystal clarity your first
question surrounding that complex fact situation of numerous spouses.
Senator Bryden: That is probably just my being mischievous.
Ms McLellan: Being mischievous is allowed. We will come up with an answer for
you because I think it is an important point. Everyone should have the benefit
of clarity and the best opinion and advice that we are able to provide as you
consider this important piece of legislation. We will do that. My officials
will return, after you have heard from other witnesses, to spend as much time
with you as you would like.
The Acting Chairman: We will now hear from a panel of three experts. They are,
from the University of Ottawa, Professor Ed Ratushny, Faculty of Law; from the
University of Toronto, Professor Jacob Ziegel, Faculty of Law; and from the
University of Calgary, Professor Frederick L. Morton, Department of Political
I will ask the three experts to come forward and make a brief exposé. It
is important to leave as long as possible for a discussion between the senators
and the witnesses.
I wish to reiterate what I said earlier this afternoon: We are studying Bill
C-37 to amend the Judges Act, not more, definitely not less.
Professor Ratushny, you have the microphone.
Professor Ed Ratushny, Faculty of Law, University of Ottawa: Honourable
senators, I appreciate your kind invitation to be here today. My invitation
specifically asked me to comment on the relationship between Parliament and the
judiciary. I am very pleased to do so. My task has been made rather easy
because of a recent disposition by the Canadian Judicial Council that reflects
very much my own thinking on this issue of the relationship between Parliament
and the judiciary.
I wish to refer to a case with which I am sure you are all familiar. It involved
a judge in the Federal Court of Canada making a comment in court. I might add
that Mr. Jack Ramsay, who is a member of Parliament, made a complaint to the
council in this case, which was the reason the council dealt with this matter.
The comments of the judge were that he was concerned as a citizen that, with
immunity, a minister of the Crown can get up in the House of Commons and say
that he is going to fire this guy and everyone is up and cheering. The judge
indicated that he was thinking of people around a guillotine and did not know
whether he had a right to intervene. He said that it left a bad taste in his
Quite a few members of Parliament were legitimately disturbed about this. Mr.
Ramsay put in a complaint. The chair of the judicial conduct committee of the
Canadian Judicial Council referred this to a panel consisting of three chief
justices: Chief Justice McMurtry, of Ontario, Chief Justice Daigle, of New
Brunswick, and Associate Chief Justice Mercier, of Manitoba.
The panel had no trouble in concluding that these comments on the part of the
judge were totally inappropriate. Let me read from the letter from Chief
Justice McMurtry to the judge on behalf of the panel. This letter was made
available publicly by the Canadian Judicial Council. This is what Chief Justice
McMurtry said to the judge:
The Panel has concluded that your comments in this matter fall outside of the
sphere of proper judicial expression. Although the incident in Parliament was
described in the material which was filed, your comments were extraneous to the
issues before you. They were gratuitous and insulting to Parliament. You
expressed a personal concern "as a citizen" but you were not in the
role of a citizen. You were acting as a judge and, in the Panel's view,
improperly used the unique status of judicial office as a platform for engaging
in controversial political debate.
Judges must interpret the laws which Parliament creates. Indeed, judges must now
also assess the validity of those laws against the values which Parliament has
assigned to the Canadian Charter of Rights and Freedoms. However, it is not the
role of judges to comment in disparaging terms on the policy and wisdom of
Parliament. In this matter, you went beyond even criticizing law or policy and
made disparaging comments about the conduct of actual Parliamentary proceedings.
The language is quite strong. A fundamental principle of our democracy and of
judicial independence is that judges should be able to speak freely. Part of
the reason for all the protections -- the guarantees of independence of judges,
security of tenure, remuneration, and certain guarantees in terms of the
administration of justice -- is based on the proposition that a judge should be
able to speak his or her mind, without fear of prejudice or hope of some sort
of gain because of what they might say.
However, the panel, while acknowledging that, said that there are limits, that
there comes a point where judges go beyond what is proper judicial function
and, in those circumstances, they deserve to have their remarks commented upon
in a disapproving way, as this panel did.
The panels noted that this was the first time, in their recollection, that there
was a complaint to the council about judicial criticism of Parliament. The
panel therefore decided in its response, which was made available to the
public, to make some general observations about the relationship between these
two institutions, which are fundamental to our Canadian democracy. Of course,
that is why I say that this made my task easy, because that is specifically
what I was asked to comment on.
Chief Justice McMurtry pointed out that constitutional principle and precedent
stress the necessity of mutual respect and non-interference. There is a
constitutional convention, he said, of non-interference in the judicial process
by members of the executive and legislative branches of government, as well as
a constitutional convention of non-interference in the political process by
members of the judiciary.
Chief Justice McMurtry quoted citation 493(1) of the 6th Edition of
Beauchesne's, which is as follows:
All references to judges and courts of justice of the nature of personal attack
and censure have always been considered unparliamentary, and the Speaker has
always treated them as breaches of order.
He also quoted from Lord Russell in the British Parliament in 1843, when he
Independence of judges is so sacred that nothing but the most imperious
necessity should induce the House to adopt a course that might weaken their
standing or endanger their authority.
A clear principle that emerges from the debates of the British Parliament,
particularly in cases involving the removal of judges, is that it is incumbent
on Parliament to protect the independence of the judiciary. However, the other
side of the coin is that -- and I quote:
...if judicial independence is to be maintained, the judiciary must also strive
to enhance public confidence in Parliament as an institution.
Chief Justice McMurtry concluded -- and appropriately, I might add -- that:
In other words, a symbiotic relationship of mutual respect and support must
I agree wholeheartedly with this conclusion. I have difficulty understanding why
the judge in this particular case would have so gratuitously and disparagingly
insulted Parliament; however, I must say that I am also personally disappointed
every time I see members of Parliament taking cheap shots at the courts and the
judiciary. I can see no useful purpose to be served in such gratuitous attacks.
It seems to me that, in the public eye, such attacks simply demean all public
In my view, it would be better for the people of Canada and it would better
serve all of our institutions and democracy in Canada if all our institutions
would express mutual respect and support for each other rather than succumbing
to the temptation to engage in institution-bashing.
I will close my remarks there and be available for discussion.
Professor Jacob Ziegel, Faculty of Law, University of Toronto: Honourable
senators, I appreciate the opportunity to appear before you this afternoon to
discuss with you various aspects of the administration of justice. The clerk of
the committee did not indicate on which aspects of either Bill C-37 or of the
general administration of justice by the courts she wanted me to speak. I
decided therefore that I would focus on that section of Bill C-37 which was of
particular interest to me. As I think you will see, it does bear on what
Professor Ratushny just said, although I take a somewhat different perception.
Proposed section 26 of Bill C-37 establishes a judicial compensation and
benefits commission and replaces their triennial commission used up to now
under the Judges Act to deal with judges' compensation and related matters.
Proposed section 26 is presumably intended to implement the Supreme Court of
Canada's important judgments in the Provincial Court Judges case rendered late
I have explained elsewhere in detail some important concerns I have with the
Supreme Court's judgment. My most important concern is that the judgment
constitutionalizes the establishment and roles of judicial compensation
commissions at the federal and provincial levels. I have long supported the use
of judicial compensation committees or commissions as a political and
administrative solution to the fact that judges, unlike other public servants,
cannot go on strike if they are dissatisfied with the terms of their
However, the administrative approach we have adopted up to now under the Judges
Act is a far cry from the solution imposed by the Supreme Court which brings in
its train as many difficulties as it is intended to resolve.
Apart from the novelty of the Supreme Court's holding -- and I explain the
novelty in a footnote -- it appears to me to be open to the following
objections. The first is the requirement adopted in Chief Justice Lamer's
judgment that any change in the remuneration of judges and other benefits must
be submitted to the compensation commission. This will enormously complicate
and bureaucratize the relationship between the executive and the legislative
and executive branches of government. It will also, as Mr. Justice La Forest
pointed out in his dissenting judgment in the Supreme Court, practically turn
the judicial compensation commission into a fourth arm of government.
A second concern I have is that the Supreme Court's judgment authorizes --
indeed invites -- a court to review a government's or legislature's reasons for
rejecting the recommendations of a judicial compensation commission if the
reviewing court is not satisfied with the rejector's reasons. This is an open
invitation to litigation and will, as the events since the Supreme Court's
judgment prove, almost guarantee that every significant government decision not
to follow the recommendations in full will be challenged in court -- a court,
be it noted, that cannot itself be deemed to being wholly indifferent to the
issues before it.
The Supreme Court was anxious to put to rest the state of litigation that had
led to the appeals before the court. I fear that the court's judgment may have
the opposite effect.
My third concern is that the Supreme Court's judgment will weaken one of the
most fundamental principles of British parliamentary democracy, that is,
Parliament's control of the public purse. Paradoxically, it may also weaken the
principle of judicial independence as public perception grows that the Supreme
Court's judgment is being used by judges to extract better salary and pension
conditions for themselves than are enjoyed by other senior public servants and
most other heavily taxed Canadians.
I would also draw attention to another aspect of the controversy surrounding the
compensation and status of provincially appointed judges that is not referred
to in Chief Justice Lamer's judgment, and that is the extreme unhappiness of
many provincial court judges, especially those sitting in provincial criminal
courts, about the wide disparity between their salaries and pension entitlements
and those of federally appointed judges despite the fact that 90 per cent or
more of all cases under the federal Criminal Code are tried in the provincial
courts. I do not have an easy answer to this conundrum, but it does seem to me
to warrant serious attention by the federal and provincial ministers of
Mr. Chairman, I said at the beginning that I thought there was some connection
between my opening statement and the remarks of Professor Ratushny. The
relationship is this: I deplore personal attacks on judges as both irrelevant
and gratuitous, but we do need in this country much more open and regular
discussion of important judgments of the Supreme Court of Canada.
As my remarks indicate, I have serious reservations about the impacts and
implications of the Supreme Court's judgment in the provincial court judges'
case in terms of the relationship between the courts and Parliament, which is
responsible for determining judges' salaries and compensation. Much to my
regret, I see very little public discussion in the media or elsewhere on this
important judgment. I have seen and heard very little reaction at the federal
or provincial level. It seems to me that this is a serious lacuna, not only in
this area but also in other areas where the Supreme Court has spoken.
I think it is vital for both the health and the integrity of public institutions
in our country that there be a continuing dialogue between the different
branches of government. This will have the effect of ensuring at least that
each party knows what the other is thinking and that there is a proper balancing
of contentious and difficult populace issues, to ensure that we obtain the best
Professor Frederick L. Morton, Department of Political Science, University of
Calgary: Thank you, Mr. Chairman, for inviting me here today to speak to Bill
C-37. I think you will see that my concerns are very similar to those of
Professor Ziegel's. Bill C-37 touches on many important aspects of the Canadian
judiciary, but time does not permit comments on all of these. Thus, my remarks
will be restricted to the proposal to create the new and permanent judicial
compensation and benefits commission in the Supreme Court's 1997 ruling in the
provincial judges' reference, which appears to be the basis for the creation of
this new commission.
By way of summary, I suggest that Justice Lamer's majority argument in this case
is flawed, and that the proposal to create a permanent commission, as opposed
to the triennial commission that now exists, is a mistake. Both the judgment
and the proposed commission will have the effect of contributing to the further
growth of the new judicial bureaucracy. This trend is eroding Parliament's just
authority and responsibility for the fixing of judicial salaries and is
weakening the federal principles upon which Canada is based. In short, I
believe the creation of this commission is both unnecessary and unwise.
The Supreme Court's judgment in the 1997 provincial judges' reference appears to
be the basis for the creation of the new commission. In this judgment, Justice
Lamer, writing for the majority, ruled that the Charter of Rights prohibits
provincial governments from altering the compensation of provincially appointed
judges unless they have first responded to the recommendations of an "independent
judicial compensation commission." The Chief Justice went on to declare
that there is a constitutional duty on the part of provincial governments to
create such a commission.
Please note that this ruling addresses only provincial court judges, not
superior court judges appointed pursuant to section 96 of the Constitution.
Significantly, there is nothing in the judgment that addresses the situation of
section 96 court judges, the subject of this bill. This is because, as Justice
La Forest in dissent points out, the independence of superior courts is already
explicitly provided for in the provisions of sections 96 to 100 of the
Constitution Act and the various conventions of judicial independence that
these provisions both reflect and reinforce.
Indeed, since these explicit safeguards of judicial independence do not apply to
section 92 court judges, Chief Justice Lamer was forced to rely upon what he
called the implications of the preamble to the Constitution Act, 1867 as the
basis for his order that provincial governments must create and consult
judicial compensation commissions.
We are thus confronted with this paradox: The Supreme Court ruling that
allegedly requires the creation of a new federal compensation commission dealt
only with provincially appointed judges. Yet, in the absence of any explicit
guarantees for judicial independence for provincially appointed judges, the
Supreme Court was forced to base its decision on what the Chief Justice
described as "elaborations of the underlying, unwritten, and organizing
principles found in the preamble to the Constitution Act, 1867."
I would suggest respectfully that honourable senators give close attention to
Justices La Forest's response to the Chief Justice's argument. Justice La
Forest first characterizes the Chief Justice's reliance on the implications of
the preamble as "a dubious theory of implicit constitutional structure."
He then condemns it even more strongly as "subverting the democratic
foundation of judicial review."
Shortly thereafter, Justices La Forest describes the majority's order to create
new judicial commissions as contrary to "precedent, reason, and common
I suggest -- and I would be curious to hear from my colleagues here -- that this
is the harshest criticism yet issued by one Supreme Court Justice of the
others' arguments. With respect, I also suggest that when this happens
Parliament should pay close attention, especially when, as in this case, new
legislation is proposed that is based on the very arguments that are under
attack. Since the basis for the creation of a judicial compensation commission
cannot be found in the preamble of the Constitution Act, 1867, Justice La
Forest points out that the only other source is section 11(d) of the Charter of
Rights. Section 11(d) deals with persons charged with an offence and the right
to a trial before an independent and impartial tribunal. Those are emphasized
in Justice La Forest's argument.
Justice La Forest's emphasis is intended to draw attention to the facts that,
one, these Charter provisions apply only to criminal trials; and, two, in his
own words, "the guarantee of judicial independence in section 11(d)
redounds to the benefit of the judged, not the judges."
The majority's judgment simply ignores these distinctions. It transforms what is
supposed to be a benefit for those accused of crimes into a benefit for judges.
It then indiscriminately applies this new benefit to civil as well as criminal
While Justice La Forest recognizes that "salary commissions may be
desirable as a matter of legislative policy, they are not mandated by section
11(d) of the Charter," he emphasizes, properly in my opinion, that the
courts' function of judicial review is more circumscribed than proposing
desirable policy changes. If this were not the case, the judicial function would
cease to be any different than the legislative function. In the absence of any
credible textual foundation for the majority's ruling, Justice La Forest
bluntly characterizes it as "tantamount to enacting a new constitutional
provision" and ordering the creation of "what in some respects is a
virtual fourth branch of government to police the interaction between the
political branches and the judiciary."
Justice La Forest's criticisms, harsh as they are, are still couched in the
polite language that becomes exchanges between fellow judges. For our purposes,
however, the purposes of crafting public policy, it is important to speak more
plainly. In plain English, Justice La Forest is accusing the majority of simply
making up constitutional meaning and ordering legislators to do what the judges
think is desirable as a matter of public policy. This is the difference between
constitutional supremacy -- what Justice La Forest fully supports -- and
judicial supremacy, which the justice strongly opposes. I might add that I
agree with that distinction as well.
Once this distinction is recognized, I would add, with respect, that senators
should not become accomplices in the undermining of Parliament's equal role in
the development of Canada's Constitution. Elected and, yes, even appointed
lawmakers should not abdicate their responsibility for constitutional
development to the courts. Just this past April, the Supreme Court, in its
Vriend decision, emphasized repeatedly that constitutional development is not a
judicial monopoly but, rather, rests on a dialogue -- and the word "dialogue"
was used repeatedly in that judgment -- between courts and legislatures.
Judges are not infallible. When judges make a mistake or a dubious
interpretation -- and "dubious" is the word used by Justice La Forest
-- of the Constitution, legislatures have not just the right but the duty to
correct it. In the case at hand, "precedent, reason and common sense,"
to borrow from Justice La Forest, all weigh against Chief Justice Lamer's
majority view that section 11(d) imposes a constitutional obligation on
governments to create judicial commissions at either level of government.
The creation of such commissions should be considered on their merits -- that
is, will they contribute to better government, including better judicial
independence -- and not because of any alleged constitutional necessity.
The second part of my paper addresses the merits of the policy. I think it
reflects many of Professor Ziegel's comments. I will send it on to your clerk.
Senator Beaudoin: Like you, Mr. Morton, I am impressed by the argument of Mr.
Justice La Forest, and more so because of the fact that the Minister of Justice
a few minutes ago said something about family courts. The problem that we have
with the unification of family courts in this country is precisely section 96.
I should like to know your reaction to that. The court is more and more generous
in the interpretation of section 96 because it is problematic to have
provincial courts and federal courts and the overlapping jurisdiction. Justice
La Forest even went so far as to say that our system is unified to a certain
What is your reaction to that? My impression is that the minister is probably
right when she talks about some amendments to the family court system. Do you
think that we may do that under the present constitutional law as interpreted?
Mr. Morton: I must plead relative ignorance regarding the jurisdictional overlap
on family court issues. As I read Justice La Forest's dissent, he is concerned
that what is said by the majority with respect to section 92 courts, and
perhaps by implication, section 96 courts, could also be extended to
administrative tribunals as well, which exercise quasi-judicial functions.
Again, if that came just from me, I could be accused of crying wolf, but since
I seem to find that in Justice La Forest's comments, and since it seems that
other aspects of judicial independence have been extended to administrative
tribunals, it concerns me that the remedial, new institutional order of
independent commissions that have been extended now to section 92 courts could,
on the basis of this decision, result in our seeing cases arguing for similar
types of independent reviews of other administrative tribunals.
I think this might have been Professor Ziegel's point: We can anticipate more
litigation and even more bureaucratization of the process. Perhaps someone more
familiar with the family court issue than I am could answer your question.
Mr. Ratushny: No one would debate Senator Beaudoin on jurisdiction.
Senator Beaudoin: I think it is a good thing to unify family courts in this
country. I have a problem with section 96, of course. I just want to have your
first reaction to that.
Mr. Ziegel: I would say a couple of things. First of all, when I referred in my
opening statement to my concerns that the Supreme Court's judgment in that case
could result in more litigation, I was not thinking about the possibility of
the judgment being extended to quasi-judicial tribunals. I was referring to
what indeed has happened, which is that even where a judicial compensation
committee has been established and has issued its report, where a government
has refused to abide or implement the full terms of the recommendations, judges
have challenged it in court because that is precisely what Chief Justice
Lamer's judgment invited them to do. Although the overriding purpose of the
Supreme Court's judgment was to try to put to rest the series of cases that had
arisen before the court's judgment, in my view the court's judgment had the
reverse effect because they have openly invited the judges to litigate if they
are unhappy with the executive's disposition of the recommendations of a
judicial compensation commission.
With respect to section 96, I am not an expert on that, although I am familiar
with some of the case law. It has, of course, a different history. Its purpose
was to emphasize the fact that the appointment of senior court judges was the
prerogative of the federal government, not the provinces. As Senator Beaudoin
rightly pointed out, in practice, the courts have used it as an instrument for
restricting the provinces from conferring broader jurisdiction on provincial
courts and tribunals. What I find interesting is that with section 96, the
courts have been, on the whole, very protective of their jurisdictions, whereas
in other areas, they have moved in the opposite direction.
This, of course, demonstrates what many constitutional observers have pointed
out: that when you are dealing with constitutional adjudication, you are
dealing overridingly with issues of policy. A fortiori this is true when you
are dealing with Charter issues. The Charter is an open-ended instrument; it
invites policymaking all the time. Judges have no monopoly on wisdom in this
area. This is why it is so profoundly important that all of us become involved
in this debate as to what the Charter means, how it should be interpreted,
whether we think the courts have gone too far or not far enough, and what are
the respective roles of Parliament, the executive and the judiciary in dealing
both with the Charter and with the Constitution.
Mr. Ratushny: Perhaps I can respond briefly. In terms of the unified family
court, I agree with Senator Beaudoin that it is a good idea. I think there have
been some cooperative steps by the federal and provincial governments to try to
achieve that. It occurs to me that the Zuber report for the Ontario government
might have addressed that issue, and the constitutional issue in particular. I
would have to refresh my memory, but it seems to me there may be something
there you may want to check out.
Senator Beaudoin: Do you agree with the idea?
Mr. Ratushny: Yes, absolutely.
Senator Beaudoin: That is what I think, too.
Mr. Ratushny: I did not mention the decision of the Supreme Court of Canada
regarding provincial court judges. We must apply some context and perspective
to this decision. In dealing with provincial court judges, we have to remember
that some of the provincial court judges' salaries were set directly by the
executive, by cabinet, not by legislatures, and that direct control of salaries
by the executive over the judiciary is a much more direct threat than exists, I
would say, where you have parliamentary debate and Parliament setting those
salaries. The way I look at it is that, in part, there was a vacuum and perhaps
the majority wanted to protect the provincial court judges from getting drawn
into a debate and having to fight, themselves, for their own salaries, having to
make their case and deal directly with the government, which is unseemly and
makes them look like a trade union. The whole idea of the commission was to try
to find some solution that would prevent the executive from directly setting
judicial salaries. While Professor Morton's comments are certainly valid in
terms of suggesting that there really was not a sound constitutional foundation
for elevating the commissions in that sense, and that there is no really clear
hook on which to hang this, I think there may have been a bit of a vacuum, that
this was seen as perhaps a seemly way of allowing these salaries to be set.
This is not completely unparalleled. Another analogy in relation to the
judiciary arises in relation to removal of judges from office.
Our Constitution says that judges hold office during good behaviour but that
they may be removed on address of both Houses of Parliament. However, where
there is misbehaviour by a judge, no one would dream today of going directly
into Parliament with a motion saying the judge should be removed. There has
been established an approach whereby a type of judicial inquiry is held before
that occurs. In the Landreville case, a royal commission, set up under the
Inquiries Act, was established in order to ensure that the facts in the case
were assessed in an impartial way prior to a recommendation for removal.
Following that, the Canadian Judicial Council was established to provide a more
comprehensive complaints process and also to provide for recommendations to the
Minister of Justice that there should be removal before you get to Parliament.
The idea of an impartial commission as a preliminary step before Parliament or
the government does its job is helpful in providing a firm basis on which
Parliament or the government can take further steps.
I do not think the decision required the government to accept the recommendation
of a commission. What the decision tries to avoid is establishing a commission,
or abolishing it part way through its work, or refusing to consider its
recommendations at all. If there is reasonable consideration of the
recommendations, that is all that is required by this decision.
In relation to administrative tribunals, I do not think the issue arises in the
same way. When you are talking about provincial courts, you are talking about
criminal jurisdiction; you are talking about being able to send someone to
jail. The Charter protection for an impartial tribunal applies to criminal
offences, or under section 7, fundamental justice, where security of the person
is involved. There may be occasional, rare examples of administrative tribunals
being involved in that kind of adjudication, but I think they are quite rare.
Senator Grafstein: Thank you for this discussion. You have raised many
fundamental philosophical issues that have not been fully debated either in
Parliament or in the public forum, except perhaps in legal circles.
It is curious that we do not have clear in our minds what the word "independence"
means. I am not attributing these comments to you, but in your references you
talk about there being so many possible symbiotic relationships. Someone else
talked about a dialogue. Well, both of those terms are not appropriate to the
word "independence," quite frankly. You do not have a symbiotic
relationship if you are independent.
The United States has a system -- that is not ours -- of separation, checks and
balances. We have a British tradition of independence. In my reading, it is not
quite independent, because in the British tradition the Chief Justice was, in
effect, a cabinet appointee, even though a system of Chinese walls separated
the executive from the decisions.
Having said all of that, I find myself in great sympathy with Mr. Justice La
Forest's comments. In effect, we are allowing the independence principle, as
best I recall it from my law school days, to be eroded. It is all based, if I
am not incorrect, on a notion that, because Parliament has been negligent or
has delayed treating judicial salaries, we have to take out of Parliament's
hands its strong responsibilities to deal with this question. It troubles me
that we are allowing, because of the Charter, this erosion of judicial
independence and the independence and superiority of Parliament.
You have all made reference to the fact that we give judges a menu that allows
them to munch on the political gourmet that we spread out before them.
With respect to the PEI decision, if this were put through a stringer, one would
come to the conclusion -- and I say this lightly -- that this is in effect
abrogating to the Supreme Court the responsibilities of Parliament.
Having said that, what is the practical dilemma faced by the Minister of
The Acting Chairman: That is the question in front of us. We can discuss the
decision of the Supreme Court, but we must focus on Bill C-37.
Senator Beaudoin: We have.
Senator Cools: With all due respect, Senator Grafstein has the floor.
Senator Grafstein: I was coming to that, Mr. Chairman. I apologize for being
loquacious, but this is a difficult issue. It is a question of definition.
What should be the appropriate model? Let me suggest one or two and see if they
are more appropriate.
This committee deals with constitutional and legal affairs, but historically we
have not really dealt with judicial matters, except episodically. There is
really no political oversight in terms of political decisions made by the
The Chief Justice now, quite interestingly, criticizes the fact that judges are
being attacked. However, one can really separate the attacks from the proper
criticism of political decisions taken by judges.
My question is this: Would not it be more appropriate for the Attorney General
to come to Parliament and recommend that a special parliamentary committee be
established every four years, on a consensual basis, to deal with these
matters, as opposed to abrogating the public purse to an administrative body
where the federal government has a say but Parliament does not? There must be a
better model to deal with the question of being unfair to judges, as opposed to
interfering with our political power, as I think the PEI decision does. What
would be the best model? What would be a better model?
The Acting Chairman: If I understand the question, you are asking the witness if
there is an alternative to clause 6 of Bill C-37.
Senator Grafstein: Or do they agree with my assumptions? If they do, is there an
The Acting Chairman: We are having a great debate. It is interesting, but we
need to look at Bill C-37. We have the decision of the Supreme Court. We are
stuck with it, even if we do not like it.
Senator Cools: No, we are not stuck with it.
The Acting Chairman: Excuse me. We can discuss this.
Our duty is to legislate, and that is what we have in front of us. Give us your
Mr. Ziegel: I think Senator Grafstein has slightly misconstrued the substance
and the effect of the Supreme Court's judgment. The Supreme Court has not ruled
out the parliamentary role in setting the salaries of federally appointed
judges. However, it has done two things which are innovative. First, it has
said that in every case, whether dealing with federally or provincially
appointed judges, there must be something in the nature of a judicial
compensation commission. Hence, it is not sufficient that you have a
parliamentary committee because it would not satisfy the requirements of the
Second, the Supreme Court has said that every aspect of judicial compensation
and benefits must first be referred to this committee. Although you have clear
parliamentary legislation federally and provincially that states, "Because
of fiscal constraints, we are hereby declaring a freeze on the salaries of all
federal and provincial employees," that would not satisfy the Supreme
Court's judgment requirements. I find that radical. It concerns me greatly
because one of the key issues in the cases for the Supreme Court was the
effectiveness of precisely such a piece of legislation.
Professor Ratushny refers to the dangers of allowing the executive to set the
salary. That was not the key issue for the Supreme Court. It was the key issue
in the Alberta case but it was not the issue in the other case. In the other
case, the court was concerned with the legitimacy of legislation freezing
salaries to periods of financial constraints. The Supreme Court judgment has
struck it down and has said that, in every case, the government must first go
to this judicial compensation commission, even if it is legislation of a
universal character applicable to all federal and provincial employees.
Third -- and this is partly responsive to Senator Grafstein's observations --
while the Supreme Court appears to allow the executive or the Parliament to
have the final say with respect to the disposition of the recommendations, it
does not. It says that if the government of the day refuses, for whatever
reason, to agree to implement all the recommendations of the judicial
compensation committee, that refusal is subject to judicial review. The
question is not whether the reasons given by the government are persuasive but,
rather, as the Chief Justice put it, whether it accords with basic rationality
-- whatever that means.
When I alluded in my opening statement to the crop of litigation, I was
referring to cases that have arisen since the beginning of the year in which
provincial court judges have challenged the reactions of a government to the
recommendations of a judicial compensation committee on precisely the type of
grounds that the Chief Justice alluded to in his judgment. This troubles me
greatly -- partly because it enhances the prospects and opportunities of
litigation and partly because it allows judges to be judges in their own cause.
Even a federally appointed judge sitting on an appeal involving provincially
appointed judges must always, at the back of his or her mind, say, "There
but for the grace of God go I." Federally appointed judges, like their
provincial counterparts, are naturally interested in and concerned about the
status of their compensation and other benefits.
Mr. Morton: In the west -- and I am sure in Ontario and in Quebec as well --
there is an expression, "You do not fix it if it is not broken."
While there is plenty of evidence of judicial dissatisfaction with the levels
of judges` salaries in Canada, in all the evidence that I have looked at -- and
I think I have looked at most of the evidence pertaining to Bill C-37 -- I have
not seen one bit of evidence pertaining to any specific allegation of judicial
independence being compromised by any judicial compensation scheme in any
province. There is lots of evidence of judges being unhappy with what they are
paid and how it is done, but I have not seen a single example where a judge said
he or she felt pressured to decide certain cases one way rather than another
because of unhappiness.
At the federal level, you have a system now of the triennial judicial council
that is struck. It meets once every three years for six months. It does its
investigation and gives its report. I do not know why you need to go beyond
that and establish a permanent commission with people being paid salaries for
four years when they only work nine months out of every one of those four years.
They will have staff and they can be asked by the Attorney General to look into
other matters pertaining to benefits and pensions. That is what I meant by the
creation of new bureaucracy. In terms of a specific solution, I have yet to see
a positive case made against the status quo at the federal level.
I cannot resist a comment regarding Senator Gratstein's remarks about us having
an English system, not an American system. In the 25 years I have studied the
courts and the Constitution in Canada, we have traversed across the spectrum
away from the English tradition that informed us for the first 100 years. In my
professional opinion, the Supreme Court of Canada is now the most powerful
appeal court in the English-speaking democracies -- that is, in the common law
world -- and also the second most powerful political institution in our
country, second only to cabinet. The change in its role is breathtaking. It is
involved, on a regular basis, on matters of partisan controversy, as everyone
at this table knows. I do not think it is surprising that there is controversy
I do not think the Chief Justice's recent remarks, complaining about judge
bashing or court bashing, are unexpected when the court has undertaken this new
role. There are defenders of the court's charter decisions. All of the
professors here would probably agree that all you have to do is read the law
reviews across the country. The Charter and the Supreme Court are overwhelmingly
popular in the law schools. If there were a forum such as your committee that
discussed certain decisions on a regular basis, you could get many defenders of
the Supreme Court to come in, but you would also get some critics who would be
happy to come here and discuss some of the issues that are not being discussed
adequately on a public affairs level. You might be able to elevate the debate
somewhat and create the dialogue.
I am not a great fan of the Vriend decision but the court's repeated use of the
terms "joint responsibility" and "dialogue for Canada's ongoing
constitutional development" impressed me. I think a committee like this
could contribute to that.
The Acting Chairman: Before we continue, I remind Mr. Morton that the minister
referred to the fees to be paid to commissioners. Clause 26.1(9), on page 5 of
the bill, states:
The members of the Commission and persons carrying out duties under subsection
(4) shall be paid
(a) the fees fixed by...
The effect is that they are not employees; it is a daily fee. The French version
expresses it far better. It reads, "indemnité quotidienne." It
is important that we keep in mind what the minister has said about it. I do not
understand that those commissioners will be public employees or public nominees
for four years.
Mr. Morton: It says that they may hold a second term.
Senator Nolin: Yes, and from time to time they will be asked by the Governor in
Council to examine and to perform the duties that the proposed legislation
outlines. I made that point because it is an important one.
Senator Cools: The powers here are pretty total. The minister told us that she
only plans to use them on occasion but the powers are here for them to be used
all the time. The legislation is concerned about powers, not intentions.
Senator Grafstein: I am interested in the alternate models. I have heard some,
but if anyone else wants to comment, it might be interesting.
Mr. Ratushny: The acting chairman said that it is probably a per diem payment
which is based on the number of days they actually work and that time would
usually occur prior to the report.
I should like to respond to Senator Grafstein's point. I do not see this as
Parliament abandoning its role here.
Dr. Ziegel pointed out that Parliament continues to play its role and
parliamentary committees do continue to play their roles. I do not know why you
would not want the help of the commission. Would it not be helpful to have this
comprehensive study and ongoing monitoring and provision of information that
will help to establish appropriate salaries and justify them on some sort of
rationale basis? It seems to me that this is an additional element that will
help Parliament do its work.
Senator Grafstein: I just look at proposed section 26 in response to that. While
it appears to be recommendatory, it really is almost absolute in the sense that
it says the commission shall make a report, the minister shall respond to
recommendations. This summer we have seen a legitimate debate over the
administrative decision dealing with the pay equity issue. Politically the
government is in a horrendous position. If that decision is taken almost as
writ, although it is just in effect a recommendatory decision, I believe that
politically for a government to refuse to in effect accept the recommendations
of such a commission would put it in an unbelievably difficult position. This is
not advisory. I would have no problem if this were advisory. I would have no
problem if in fact the cut of it is advisory, but substantively, if I could
say, it is mandatory.
Mr. Ziegel: I hope you are wrong.
Senator Grafstein: I hope I am wrong, too.
Mr. Ziegel: The precedents do not support you, because British Columbia already
had a system similar to the one recommended in the Supreme Court's judgment. It
had a judicial compensation commission and two years ago the commission
recommended a very substantial increase in the salaries of provincial court
judges so as to bring them closer to the salaries paid to the federally
appointed judges. The B.C. government refused to implement the recommendations
on the advice of another committee because they felt that this would totally
distort the salary structure for senior employees in the public service. The
decision was challenged in court. The Chief Justice of B.C. upheld the decision
of the British Columbia government and said that it fell comfortably within the
scope of the legislation establishing the commission. It was then taken to the
B.C. Court of Appeal, which rendered its judgment earlier this year. The B.C.
Court of Appeal was in dreadful difficulty because they had obviously read
their constitutional history and kept referring to the deference that the
courts must pay to the legislature and the executive in fiscal matters. They
felt, astonishingly, that their only quarrel was with the fact that the B.C.
government apparently had failed to respond to what was really a very minor
aspect of the judicial compensation commission's recommendations. The Court of
Appeal felt that the whole matter should be referred back to the B.C. government
for further consideration, which I find quite extraordinary. This explains why
I personally am very much concerned. I do not question the total good faith of
the Supreme Court, but in my respectful view they have not thought through the
implications of their decision and the fact that not only was it distorting the
important relationship between Parliament, the executive and the judiciary with
respect to question of judicial compensation, but also the formula they have
established is calculated to increase rather than reduce the amount of
litigation. I would be very disturbed to think that Senator Grafstein is right
in thinking that hereafter the legislature will be so intimidated by the threat
of litigation that they will endorse the recommendations of the committees
regardless of whether they felt they were consistent with the overall fiscal
policy of the government of the day.
Senator Cools: This is extremely excellent testimony, especially since so much
of it supports my speech last night. I feel very vindicated.
I should like to urge upon the chairman, indeed the committee as a whole,
continued discussion, particularly on the issues that these three witnesses
have raised. I would also like to urge upon the committee the consideration of
the issues raised by Senator Grafstein, which perhaps the Senate as a whole
should be considering -- the creation of a committee of the Senate, it being the
upper chamber, to look at these sorts of issues. Perhaps as the dialogue on
this committee continues, such a recommendation might emerge from our
committee. We are not at the report stage yet, but I am just outlining some
thoughts as they came to me based on the testimony that was put to us before
Mr. Ratushny raised a few issues -- and I understand the other two witnesses --
which cause me a few problems. He basically refers to these commissions -- and
just let me make it quite clear, I was quite happy with the old triennial
system. As the maxim goes, if it ain't broke, don't fix it. The proposals that
Dr. Ratushny make essentially are that Parliament should be getting the
assistance of these commissions and, as he talked about the removal process in
the judicial council, that Parliament should be happy to be receiving the
assistance of these commissions. My understanding of the history of the
judicial council and of these commissions is that these commissions are intended
to assist the ministers. In other words, they are intended to assist the
ministers, not Parliament. They are not supposed to encroach on Parliament.
You cited the Landreville case. Sad to say, Judge Rand's report in the
Landreville case was not his finest hour and it was not his finest piece of
work. It is quite an old piece of work.
My understanding is that the whole process is intended to assist a minister so
that a minister will not face a vote of non-confidence on the question of a
removal of a judge and that the council was based on an old concept that a
Minister of Justice or the Lord Chancellor or whoever could appoint another
judge to examine the matter. The intention of the process that eventually went
to the judicial council was that it was never intended to limit any individual
member of Parliament's ability to move a motion at any given moment. That was
my understanding of that. Think about that for a moment. That is one question.
Second, another consideration of the cause for removal by Parliament -- and it
relates again to the question of the judicial council -- is that the cabinet
has always had the power to remove judges. The cabinet still has powers to
remove. The reason that "but may be removed" is in the Constitution
Act is to give that judge a recourse to Parliament. That is my understanding.
The major point that I am making is that these creations, both the judicial
council and these commissions, assist ministers of the Crown; but Parliament
maintains its own sovereign powers because if it is not the case then the
justification, as the Judges' Act was amended 25 years and 20 years ago, to
induce those elements was false.
The Acting Chairman: Senator Cools, I think that question is very important but
not now, not here.
Mr. Ratushny: I did not respond very quickly.
Senator Cools: I would be happy to move on, but Senator Grafstein has raised an
extremely brilliant point. It is so rare that in Parliament we are discussing
Parliament's own powers in respect of judges. It is very rare that Parliament
has any discussion or debate in respect of its powers regarding judges. So I
have been welcoming this moment with some relish. Perhaps the Chairman does not
want it, but to my mind the evening is young.
Mr. Ratushny: According to section 99 of the Constitution Act, a judge may be
removed on addresses of both Houses of Parliament. There is nothing to prevent
a motion for removal being introduced by a member of Parliament. I agree with
you on that. It is not necessary that you go through the other stages.
However, it would be extraordinarily unusual to try to do that today without
having a preliminary investigation as to what actually occurred. It would be
viewed as foolhardy to do it, but I think the power still exists because it is
in the Constitution. That is the first point.
Senator Beaudoin: It is Parliament, not cabinet.
Senator Cools: That is my point. He has just agreed with me that it is
Parliament's investigation, not cabinet's.
Mr. Ratushny: You mentioned Landreville and it not being Rand's finest hour. I
agree with you. That is the reason the council was set up -- because the
process was so flawed. That is the whole purpose of establishing a judicial
council process. It is true that the council does make the recommendation to
the Minister of Justice who would then make the motion to Parliament. You
suggest that cabinet can remove a judge directly. I am afraid I have no
authority for that.
The Acting Chairman: That is exactly why I have interjected. Bill C-37 does not
contemplate that at all. It is a very interesting subject, but I said at the
beginning of the afternoon that we would concentrate on Bill C-37.
Senator Cools: Fine. He raised it. Could I ask my question then? Incidentally,
Bill C-37 is amending the Judges Act.
The Acting Chairman: It does not mean that we can discuss the entire Judges Act.
We have to restrict our comments and questions to what we have in front of us.
We have not been mandated by the Senate to study the Judges Act. Our committee
has Bill C-37 in front of it. That is why I am making that comment.
Senator Cools: Thank you.
Last night, in my remarks, I tried to address the issues of Parliament's
sovereignty and Parliament's financing of government actions. I made the point
that the judges were deemed to be a very special group of people in need of the
protection of Parliament. For those reasons, the Parliament of Canada and,
pre-1867, the Parliaments at least of the united provinces of Canada, Upper
Canada and Lower Canada, adopted the system of what we call, in parliamentary
parlance, statutory charge versus the annual estimates.
Are you familiar with the process of the financial processes of Parliament?
Mr. Ratushny: I am more or less familiar.
Senator Cools: I made the point that the statutory charge clause in the Judges
Act, section 53, was originally intended to draw down on the Consolidated
Revenue Fund to pay for the salaries of judges. I also made the point that,
previous to the creation in 1906 of the Judges Act, quite often individual
judges or clusters of judges had their salaries decided by individual statute.
Many acts would come before Parliament.
In 1906, we decided to settle the question. A particular clause in the Judges
Act legislated that the salaries of the judges shall be drawn against the
Consolidated Revenue Fund. That particular clause in today's Judges Act reads
quite differently from how it was first created in 1906. It has been expanded
to include many other salaries other than those of judges, and so section 53.1
of the act now reads as it does.
I wonder if Dr. Ratushny has any comments on the persistent and continuous
swelling of section 53.1 of the act to accommodate many other salaries and many
other payments other than what were originally intended by Parliament.
Parliament's traditional manner of funding bureaucracies and staffs and all
these other issues is the annual Estimates and I have before me a former
chairman of the National Finance Committee of the Senate.
Does Dr. Ratushny have any comment?
Mr. Ratushny: When I said "more or less," that is the "less"
part. I am sorry I cannot help you. I do not know those developments.
The Acting Chairman: I am sure we can put that question to other witnesses.
Senator Lewis: Bill C-37 has been referred to us for our study and our report.
We can presumably suggest amendments, or we can approve the bill as is.
On one hand, we have the Scott report and we have the minister who says that the
bill was drafted following those suggestions. Then we have the judgment, which
is now the law, of the Chief Justice and the Supreme Court of Canada. In that
judgment, certain criteria were laid down.
What is your opinion as far as the bill is concerned? Does the bill, as drafted,
meet the principles set down in those criteria? In other words, does it comply
with the criteria and are we stuck with that?
Mr. Ziegel: I guess where angels fear to tread, I will try to offer an off-hand
response. I have looked quickly at the provisions of proposed section 26(1),
which deals with the composition of the review commission. I have also looked
at the language of proposed section 26, which deals with the disposition of the
As far as the composition is concerned, it seems to me that it clearly satisfies
the court's judgment. The court indicates that the commission had to be
independent, effective and objective. The commission will be independent to the
extent that they will reflect the two parties in interest. The two other
commissioners will select an independent chair. The commission is entitled to
establish its own criteria with respect to its mandate and how they will
satisfy that mandate. As far as objectivity is concerned, there are no
restrictions on the types of recommendations that they can make. Therefore, I
am satisfied that the courts' criteria will be satisfied.
With respect to the disposition, as I indicated, the court did not go very far,
although they said a number of things. They said, first, that once the
commission has reported, the government cannot simply ignore its
recommendations, which has happened in the past. It must respond; and it must
respond in a reasonable period of time. Clause 26 provides precisely for this.
It requires the government to refer the committee's report within a period of
10 days, I believe, if government is sitting. It requires the government to
refer the report to a committee of the house. A committee of the house can
conduct its own inquiries. It also requires the government to give a firm
response to the recommendations within, I think it is six months. My
recollection is that the Supreme Court said the government's response must be
made within a reasonable period of time. I suppose it is debatable whether six
months is too long or not long enough. Given the fact that it is the Government
of Canada and the fact that the government has lots of other responsibilities,
I am willing to assume, without expressing a final opinion, that the court will
not find that six months is too long. The critical feature, as I indicated, is
not so much the length of time but what happens if the federal government
decides that the commission's recommendations are so generous, so rich, that
they will upset the balance between judges' salaries and the salaries paid to
other senior officials of the federal government.
Senators should know that other jurisdictions, such as the United Kingdom and
Australia, have also established bodies to consider the salaries of judges.
However, those committees or commissions also deal with the salaries of senior
officials, such as deputy ministers, so as not to create invidious distinctions
between the salaries paid to one level of senior officials and those paid to
others. We already have litigation wherein the governments contend that the
recommendations of the commission are simply too rich; that they are out of
touch with the realities of political life. It is argued that the commission is
only focusing on what they deem to be fair for judges, that they do not have
the responsibilities of government to maintain equity between the various levels
of senior officials. Indeed, I would argue that that may be the case between
the salaries paid to senior officials and those paid to junior employees of
federal and provincial governments. In a sense, this is where I see the future
debate taking place.
I sincerely hope that the Supreme Court will send a strong message to lower
court judges, saying, "You have misconstrued our judgment. We did not
invite reopening and second-guessing the decisions of government." As long
as those decisions are not plainly capricious or arbitrary, they are to be
respected because it is those governments that are responsible for public
expenditure and the administration of the public purse. I hope that answers
Mr. Ratushny: I think I understood Professor Morton, as well as Senator Cools,
to say that they had no problem with the triennial commission and the manner in
which it was done in the past. I hold no great brief for a permanent
commission. I imagine that it is expected to provide some continuity. There may
be viewed some marginal improvement. I do not see it as being crucial, but I do
see a commission being crucial. I think we have to put this in historical
context. I have not researched this, but my recollection is that the
commissions were first established at a time when a raise in judicial salaries
was solely in the hands of Parliament. There was a period of considerable
inflation and times when public service salaries were rising and other salaries
were rising, but no one was too concerned about judges' salaries. The Minister
of Justice tried to get the caucus interested, perhaps. However, the fact is
that if you are looking at a member of Parliament, what great motivation is
there for a member of Parliament to take the initiative to push the cause of
raising judges' salaries? What political motivation is there to do that? It
just does not exist. In fairness, you have to have a commission for that
I recollect that, in the past, judges have always pointed to the salaries of
senior public servants in making their case to these triennial commissions. The
judges said, "This is where we were before in relation to them and look
how much they have moved ahead by way of annual increments. In fairness, we
should keep that historical relationship. That is where we should be."
Without some sort of commission, there will be a great disinclination on the
part of members of Parliament to be too concerned about raising judicial
Senator Lewis: I sense that you have some dissatisfaction with the bill. I am
wondering if can you help us by making suggestions as to how it could be
Mr. Morton: First, I second everything Professor Zeigel has said.
Second, I should like to ask my two colleagues, in case I am wrong here, is
there anything in the majority judgment in the provincial judges reference that
specifically addresses section 96 superior court judges?
Mr. Ratushny: No.
Mr. Ziegel: There is, by inference.
Mr. Morton: My point is the following: The Minister of Justice, who was just
here, responded to a question concerning sexual orientation and different
sections of the Income Tax Act. She said very specifically that their policy is
to proceed on a step-by-step, case-by-case basis. If they apply that standard
to the instant case and instant legislation, there is no need to do anything. As
you said, Parliament is not stuck with it in any definitive sense on the
Justice Minister's own logic that this applied exclusively to provincial court
judges and not to superior court judges. By her own logic, there is nothing
compelling to proceed with a new commission in response to the Supreme Court's
As Justice La Forest said, given the dubious character of some of the reasoning,
I think it would send a healthy message to the Supreme Court, as part of the
dialogue that the court has invited, that there is some serious disagreement on
this in these chambers of Parliament with the court's reasoning.
Mr. Ziegel: I think this is important. In my view, Professor Morton has misread
clause 26. That provision does not grant tenure in perpetuity to the members of
the commission. As I read it, in the initial round, it only gives them a
four-year term of appointment, which is quite common for these types of
commissions. As to why the legislation is structured the way it is, I think it
is in response to the Supreme Court's judgment that all issues involving
judicial compensation and benefit must first come before the commission. I
assume the drafters anticipated that, during the period of appointment of these
commissioners, a variety of issues, which previously might have been settled
outside the commission, would have to be brought before them.
Personally, I have no difficulties. I want to make this clear. I am not troubled
at all by the fact that you have a new commission. It does not matter to me
terribly what you call it, whether you call it permanent or non-permanent. As I
say, I am concerned with an entirely different range of issues that I attempted
to discuss, both in my statements and in my subsequent oral replies.
The Acting Chairman: We wish to thank our witnesses for their help. We will
probably take you at your word and invite you to appear before us again sooner
rather than later.
The committee adjourned.