Proceedings of the Standing Senate Committee on
Issue 31 - Evidence - Evening 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 7:12 p.m. to give consideration to
Senator Pierre Claude Nolin (Acting Chairman) in the Chair.
The Acting Chairman: Honourable senators, we will now continue our study of Bill
C-37. I am pleased to recognize as a witness our colleague from the House of
Commons, Mr. Robinson. Please proceed, Mr. Robinson.
Mr. Svend J. Robinson, M.P., (Burnaby--Douglas): Honourable senators, I will try
to be brief. I know you are familiar with the issue I will be raising before
your committee, so I need not give you a lengthy background of the purpose of
my proposed amendment. Suffice it to say that, at the time I initially proposed
that the government accept this amendment, around May of this year, the Minister
of Justice responded that it was inappropriate because the government had not
made a decision on the question of an appeal of the Ontario Court of Appeal
decision in Rosenberg. For that reason, substantively, the government was not
prepared to move forward.
As members of the committee are, I trust, aware, the Rosenberg decision was
allowed to stand and, to the credit of the government, I would say, they
decided not to appeal that decision.
The effect of that is that the Ontario Court of Appeal read the words "of
the same sex" into the relevant provision, the definition of "spouse"
in the Income Tax Act. That particular definition extended the benefit of
registration of pension plans to heterosexual couples involved in a common-law
relationship, and the effect of the decision was to extend that to gay or
I then mentioned to the minister that, if the government was not prepared to
introduce an amendment, I would myself table an amendment in the House to add
the words "or the same sex" to the proposed definition. The Table in
the house advised me that would be out of order as it would require a Royal
Recommendation because it would involve the expenditure of funds. Therefore, I
did not move ahead on that.
Subsequently, I have written to the Clerk of the House and have communicated
extensively with the officers of the House about alternative wording that I
believe, in fact, would not require the Royal Recommendation.
I will be pleased to leave with the clerk of the committee a copy of my letter
to the clerk in which I cite the precedent for this. In 1992, the Public
Service Superannuation Act was being debated in the House when I moved an
amendment. Instead of adding the words "or the same sex," I simply
suggested deleting the words "of the opposite sex." That amendment was
studied by the chair of the day and was ruled to be in order.
The Acting Chairman: We understand that. We are discussing the possibility of
introducing an amendment although we do not have one before us. One of our
members will be required to submit such an amendment when we reach our
clause-by-clause study. I am open to your suggestions as to the wording of that
Mr. Robinson: I was not in any way suggesting that, were it to be in order, it
would be done automatically, Mr. Chairman.
Senator Grafstein: To which clause are you referring?
Senator Cools: Clause 1.
Mr. Robinson: It is the definition. The current definition states that surviving
spouse includes a person of the opposite sex who has cohabited with a judge in
a conjugal relationship. Initially, I proposed that we add the words, "or
the same sex," so that the definition would read, "of the opposite
sex or the same sex," because that was the formulation in Rosenberg by the
Ontario Court of Appeal. However, because that was ruled out of order, I looked
for a precedent that might be in order, and if the words "of the opposite
sex" were simply deleted, then the effect of that, I am advised, would be
to allow for the inclusion of same-sex partners without the difficulty of a
Royal Recommendation being required for the amendment.
That is what I am appealing to the committee to do. I ask you to look at the
substance of this issue. The committee is very familiar with this because I
have circulated my letter. I hope I do not have to make a lengthy argument as
to the wisdom of the substance of this amendment. There are gay and lesbian
people in all walks of life. There certainly are gay and lesbian judges involved
in committed, loving, long-term relationships, and those folks are not asking
for any special rights or privileges. We are talking about equal rights here.
I would appeal to this committee, if this can be done procedurally, to recognize
the wisdom of the decision of the Ontario Court of Appeal in Rosenberg, as well
as the wisdom of the decision in Vriend of the Supreme Court of Canada and in
Egan and Nesbitt.
Lastly, Mr. Chairman, I would draw to the attention of the committee the
response of Madam Justice Abella to the suggestion by the federal government
that this should take some time. I was not here for the evidence of the
minister, but I suspect that this is an argument that you may have heard. She
probably said that the government is looking at a whole range of options
including other relationships, dependency, and so on. The Ontario Court of
Appeal deals with that and says the government relies on its inherent right to
address equality issues incrementally, but this suggestion is rejected by
Justice Iacobucci in Vriend who stated that groups that have historically been
the target of discrimination cannot be expected to wait patiently for the
protection of their human dignity and equal rights while governments move
toward reform one step at a time. He went on to say that, if the infringement
of the rights and freedoms of these groups is permitted to persist while
governments fail to pursue equality diligently, then the guarantees of the
Charter will then be reduced to little more than empty words.
If it is the desire of the government to move forward on a fairly major and
comprehensive re-examination of relationships, certainly they can do that. In
the meantime, I would suggest to the committee that there is an injustice here
with respect to the relationships of gay and lesbian partners that I hope this
committee will, in its wisdom, see fit to address, should it be procedurally
possible to do so.
Senator Grafstein: The minister seemed to be sympathetic to your proposal save
and except the Royal Recommendation issue and the question of "incrementalism."
In effect, we were told by the minister that we would have to hear opposing
evidence. It would be beyond the power of the Senate to introduce an amendment
at this juncture because it impinges on the Royal Recommendation provision.
That was the argument put forward by the minister. It might be useful for you to
read her testimony and give us some alternative response to that because that
is a pretty strong opinion which we received from the chief law officer of the
It is not that some of us are not unsympathetic to your position, quite frankly,
but that barrier has been placed in our way. If, somehow, we can be convinced
otherwise, I am sure some members at least might be interested in pursuing this
in a form of a change or at least taking a stronger position.
Turning to the definition for a moment, section 2 of the Judges Act states that
a surviving spouse in relation to a judge, includes a person "of the
opposite sex," but it does not necessarily exclude a person of the same
Senator Lewis: You mean "includes"?
Senator Grafstein: No, no. It includes a person of the opposite sex who has
cohabited with the judge in a conjugal relationship for one year. However, my
question is this: Under the common law, does "surviving spouse"
include a surviving spouse of the same sex?
The Acting Chairman: There is no definition of spouse. Even if the commission
referred to a definition of spouse, there is no definition of spouse in the
Senator Grafstein: Having in mind that there is now clear precedent in
subordinate legislation that a same-sex spouse is included for benefit
purposes, do we have enough at common law to define "surviving spouse"
as a person of the same sex who takes on the indicia of a spousal relationship?
If that is the case, Mr. Chairman, it may very well be that we do not have to
make any changes, that it is a question of implementation and recommendation.
Perhaps you are more familiar with these definitional codes than I am I and you
could assist the committee.
Mr. Robinson: That is an excellent question. Frankly, that is not a construction
that I thought would be possible, for two reasons. I am putting on my
legislative drafting hat which is ancient and tattered. However, I believe
that, generally, when it states "includes" that is basically direction
as to what is encompassed and is not intended to leave out other possible
categories. If that were the case, it could literally include anyone who is a
spouse under common law.
My other concern is that the only hook that could be used would be that somehow
there is a common-law precedent, and there is not. Certainly, the common law is
not well enough established around the definition of spouse. This is a very new
area of the law. Indeed, it is only recently that legislatures have redefined "spouse"
in this way, so there is no body of common law. More important, I believe that,
because there is an explicit reference as it now stands to a person of the
opposite sex, a judge looking at that would say, "No, the legislators have
explicitly excluded that relationship."
The Acting Chairman: Mr. Robinson, if you have documentation or letters that you
are willing to share with the committee, we will have them circulated in both
Mr. Robinson: I will leave with the clerk of the committee my letter to the
clerk of the House of Commons on the procedural question and the admissibility
of the amendment deleting those words. Perhaps the clerk will be in a position
to get some procedural advice and follow up.
Senator Cools: Mr. Chairman, perhaps we could get some clarification on this
business because there is nothing in the fact that this bill had a Royal
Recommendation that would preclude either supporting it or not supporting it on
the substance of the issue, or that would preclude an amendment from us. The
argument that the Senate cannot amend a bill with a Royal Recommendation is a
pretty tired one. Perhaps we could hear some evidence from someone who really
knows the subject matter, perhaps even our own Senator Stewart, because that
argument is frequently used. I submit that some members of the House of Commons
have more confidence in that argument than do senators.
Mr. Robinson: Certainly, if senators are prepared to challenge that convention,
it is not a challenge I would reject.
Senator Beaudoin: I understand the argument. However, I disagree because of the
French text. In French it is so clear cut that there is absolutely no
possibility of achieving what you want without an amendment.
It states that this includes a person of the opposite sex who has cohabited with
the judge for at least one month immediately before the judge's death. If you
leave out "of the opposite sex," it reads "includes a person who
has cohabited with the judge...
-- you achieve your goal. However, if you do not do that, I cannot see how you
will achieve your goal. In French it is more clear cut that you have to amend.
Senator Grafstein: Except that "conjoint survivant" is broader than "surviving
spouse," is it not?
The Acting Chairman: No.
Senator Beaudoin: In French, if you amend it, you achieve your goal. However,
you cannot do that indirectly.
Senator Grafstein: That is not my question. Are the French words "conjoint
survivant" broader in meaning than "surviving spouse"?
The Acting Chairman: No. They have the same meaning.
Senator Grafstein: Is it exactly the same?
Senator Beaudoin: That is my question too.
The Acting Chairman: We should restrict ourselves to questions of the witness.
Will you share with us any documents that you have, Mr. Robinson?
Mr. Robinson: Of course.
The Acting Chairman: We will seek advice and we will inform you of our decision.
Senator Beaudoin: "S'entend" is absolute. In English, "include"
is not absolute.
Senator Grafstein: That is right. There is a difference between the drafting of
the English and the French versions. I am, by no means, a French expert, but on
the face of it, it is different.
Senator Beaudoin: "S'entend" is stronger than "include."
The Acting Chairman: Is that a question to the witness?
Senator Grafstein: We are talking of drafting.
Senator Beaudoin: I understand what the witness wants. I cannot see how, because
of the French text, which is equal, he will achieve his goal without an
amendment. That is all I am saying.
Mr. Robinson: I agree. Certainly, if the committee wants to be clear in its
objective, to avoid any doubt --
These words must be eliminated in both official languages.
Senator Joyal: My first point relates to the word, "conjoint." When we
use the word "conjoint," we refer to someone who lives with someone
else who may or may not be bound in the legal context of a marriage. "Conjoint"
includes those who are "époux" or "épouse" and
those who live in a common-law situation. When someone introduces me to his or
her "conjoint," the person could be married, could be unmarried,
could be living common law, or could be someone who has gone through the formal
structure of a wedding.
When I am introduced to someone I am told, "voici mon époux" or
"voici mon épouse," know that I am being introduced to people
who have gone through a legal marriage ceremony.
The phrase, "conjoint survivant," is very broad. The definition here
has four elements. First, the person has to be of the opposite sex. Second,
consideration must be given to the date of death of the judge. Third, the
relationship must have existed for at least a year. Fourth, it must be on the
same kind of common-law situation.
Mr. Robinson suggests that we should delete the reference to the sex of the
person; in other words, we should delete one of the four elements of the
definition. However, could it be argued in a court that the definition "conjoint
survivant" or "surviving spouse" is not limiting but
This is exactly Senator Grafstein's point. Is it a definition that is inclusive
of every situation? Is it no more than what is defined there? Is it an example
of the elements that the court will take into consideration in concluding that
the person in front of the court is the surviving spouse? That is the question.
As I read this, you must have the four elements there, and it is inclusive. You
cannot go beyond that. However, that could be argued.
Senator Grafstein: In drafting terms, if you wanted to do that, instead of
saying "includes," you would say "means to include." "Includes"
leaves it open.
Senator Joyal: There is a difference between the French and the English. Perhaps
there is another way to amend it, which is to leave the four elements but to
have "entre autres sentences."
Senator Beaudoin: It is already there.
The Acting Chairman: Colleagues, we do not want to embark on that.
Senator Joyal: That is another way of achieving it. You understand the point.
My second point relates to what Mr. Robinson said about the Royal
Recommendation. There is a principle in law which we were all taught when we
were in law school: You cannot do indirectly what you cannot do directly.
Therefore, if we believe that by deleting the words "of the opposite sex,"
we, in fact, achieve the objective of the amendment, the end result is the
same. Theoretically, we would add people who, at the beginning, were not
contemplated to benefit by this legislation. We achieve the result we want with
that. Personally, I would certainly favour that, and many colleagues around the
table made that point to the Minister of Justice. However, are we not infringing
upon that fundamental principle and, in fact, are we not doing indirectly what
we cannot do directly? The end result is the same.
If our interpretation of the definition is right, that it is limited only to a
person of the opposite sex, if we delete those words, we add other people. We
add people of the same sex. Even though only one person would be covered by
that legislation as it now stands, nevertheless it would mean that there would
be more money available to that person. In other words, we would increase
I would like to have the information you received from the clerk of the house on
the appropriation, as well as the explanation he gave you that, by deleting one
word and adding nothing, you would be achieving indirectly what you cannot
achieve directly. I would have to wrestle with the principle in law that you
should not be able to do by a trick what you cannot do openly. That is my point,
which I am sure you understand.
Mr. Robinson: Absolutely, and may I say that it is a pleasure to sit at this
table with this honourable senator after almost 20 years when I previously
shared a table with him when he very ably co-chaired the committee which
drafted the Charter of Rights in 1980-1981.
Senator Joyal: Especially section 15.
Mr. Robinson: Yes.
I take your point. If this were strictly a legal proceeding, I think the case
would be made beyond a doubt. However, Senator Cools alluded to the fact that
we are not dealing with a legal proceeding here but parliamentary proceedings
and precedents. As Senator Joyal is well aware, Parliament tends to operate
more on the basis of precedent than strict, black-letter law.
I have drawn to the attention of the clerk that, indeed, there is a clear
precedent for the deletion of those words "of the opposite sex" from
legislation that would, in fact, involve, it could be argued, a far more
significant expenditure of funds. It was an amendment that I proposed to the
Public Service Superannuation Act for pensions for all public servants, and
that was studied carefully by the house and by the clerk. Following that, the
amendments were ruled in order. There is the precedent. That is all I am
I do not quarrel at all with the senator's interpretation of law. However, I
would hope that, at the very least, this committee would seek procedural
guidance with respect to the fact that that precedent was, indeed, established,
and whether that would be persuasive in these circumstances.
The Acting Chairman: As I understand that, an amendment that involves the
expenditure of more money is not permissible here. That is our problem.
Senator Beaudoin: If you interpret "Royal Recommendation" too
strictly, it means that the Senate could never amend a bill, and I cannot
Senator Cools: The bill already has its Royal Recommendation. We have nothing to
Senator Beaudoin: We have the power to amend. However, because of the Royal
Recommendation, we cannot. It is quite debatable. The bill specifically states:
His Excellency the Governor General recommends to the House of Commons the
appropriation of public revenue under the circumstances, in the manner and for
the purposes set out...
If we amend this, the Royal Recommendation stands.
Senator Cools: If we amend the bill, the Royal Recommendation will be nullified.
Senator Beaudoin: If you accept the other theory, the Senate could never amend a
bill without returning it to the House of Commons.
Senator Cools: That is right.
Mr. Robinson: If I may just add one point: Historically, the Senate has been
particularly concerned about rights issues, ensuring that the Bill of Rights
and then the Charter of Rights applies, and some of us look to the Senate for
that guidance. As long as the Senate continues to exist, we look for that kind
of guidance, being particularly vigilant on equality issues -- making sure the
Charter applies, and making sure that the Bill of Rights applies.
This would mean that you as senators could never amend equality legislation if,
for example, groups with disabilities were left out. If any group were left out
of legislation, you would have to say, "Well no, we cannot do that
because, if we include them in this legislation, that could cost some extra
money." Surely it is an extraordinary constraint on the powers of the
Senate and this body to say that. Sometimes equality costs money.
Senator Beaudoin: We amend the Criminal Code sometimes, and that may be more
costly because of our amendments. We do that nearly every month.
Senator Cools: We do it all the time.
Mr. Robinson: I wanted to flag that, particularly in dealing with issues of
equality where you are talking about a group that has been left out. It may be
gays and lesbians today, but tomorrow it may be another group. You are
accepting that your hands are tied and that you cannot rectify that by means of
an amendment. That, I would submit, is rather dangerous.
Senator Grafstein: I have a small "p" political question. We are
seized of this matter. What happened in the other place apart from your
proposed amendment? Where were the rest of the people concerned with minority
rights on this issue in the other place? I have not read the transcript of the
other place. I should, and I will, but I have not.
Mr. Robinson: I was not able to put forward the amendment, but the issue itself
was certainly raised in the course of debate when the bill came back from
Senator Grafstein: More precisely, my question is: What happened in committee?
It is one thing to bring it back to the house, but the more appropriate place
to raise the issue would be in committee.
Mr. Robinson: It was raised by one member of the committee, by Mr. Mancini, and
the minister indicated that, because the government had not yet decided whether
to appeal the Rosenberg decision, they were not prepared to amend the
legislation. That would, in a sense, be prejudging their position. The
committee meetings were before the decision on Rosenberg.
Senator Joyal: On the same point, the report stated that the committee sat on
May 27, and the judgment was released on April 23. It was during the 30-day
appeal period in which the government must make a decision. In other words, the
bill left the committee before the expiration of the appeal period. That is
probably why no one wished to act upon it.
Mr. Robinson: I see that the next delegation from REAL Women is here to support
the amendment, and I would be glad to yield the floor to them.
The Acting Speaker: Will we receive your documentation?
Mr. Robinson: Yes.
The Acting Speaker: I now invite the panel from REAL Women of Canada to come to
Ms C. Gwendolyn Landolt, National Vice-President, REAL Women of Canada:
Honourable senators, REAL Women of Canada has taken a tremendous interest in
the Judges Act because the judiciary is fundamental to our democratic system.
It protects us as men, women and children. We have read this bill with some
concern because we do believe much of what the previous speakers -- the three
political scientists -- have said. They mentioned much of what we want to talk
Was the committee dealing with this compensation for judges? This committee
appears to be an attack on the sovereignty of Parliament. If the decision of
the commission is not adhered to, it will be brought before the courts. Then,
of course, the judges themselves will be deciding on their own compensation.
That was never the intention of section 100 of the Constitution Act which
provides, as you know, that Parliament will fix the salaries and benefits of
We are gravely concerned. Mr. Justice La Forest said in a dissenting judgment
that there does seem to be a mischaracterization. At paragraph 316 he said that
it appears there has been no contextual authority for the decision that the
commission would speak, and that Parliament must obey, and if not, then it
would have to go to court. This appears to be drawn from another system that we
do not understand.
It seems that Parliament must decide the salaries. Since 1981, for example, we
have had section 26 of the Judges Act, which set up a commission. Sometimes the
commission's reports were not accepted. In 1983, the Lang commission
recommendations were not accepted, and it may well be that the Scott commission
recommendations of 1995 will or will not be accepted. However, Parliament should
fix salaries and benefits.
Our concern lies with the fact that this particular commission is troublesome to
us. Prior to that, before this amendment, the commission was simply appointed
by the Minister of Justice. We now have a Governor in Council appointing these
individuals, but these individuals are representatives from the judiciary --
one from the Minister of Justice, and then a third person, who the two others
will appoint as chairman. This seems not to be a separation between the
executive and the judiciary at all. It appears to be a mutual society, which is
Earlier this afternoon, Senator Grafstein suggested that perhaps a committee of
both Houses of Parliament should handle this, rather than a commission set up
under this act. Because of this, we suggest that at the very least speakers of
both Houses should be involved. There should be some parliamentary involvement.
However, after listening to what the senator said this afternoon, I am inclined
to agree that his suggestion is even more appropriate.
Our concern is that this was an in-house decision and that the recommendations
were really made by the judiciary, with the backing of the Minister of Justice.
We know that all judges in Canada are appointed through the recommendation of
the Minister of Justice. With respect to Mr. Scott's commission of 1995, we
know that he was on the Justice Minister's advisory committee to appoint
judges, and now we find him determining their salary. It seems to be a very
cozy, intimate relationship, one that is not at arm's length at all. The judges
themselves would appear to be, all in one, handling this with the executive arm
of the Ministry of Justice, but Parliament is not involved.
We want to raise this issue. Again, this issue was spoken to very well by the
three political scientists who appeared before the committee earlier. However,
I do wish to reiterate that this is an absolutely trying moment for us. This
proposed legislation is not satisfactory. It is not what was intended in the
Constitution Act, 1967. It may be convenient for the judges, but it certainly is
not right, proper and constitutionally correct, as Mr. Justice La Forest said
so aptly in his decision.
It is puzzling to me because Mr. Justice Lamer in the decision re Provincial
Court Judges did say that there must be a separation between the executive, the
legislative and the judiciary. It would appear his decision overrides the
ultimate statement that he made at page 80 of his own judgment. He seems to buy
his practical recommendation of this compensation committee. He was, in fact,
ambivalent. He was not clear and concise.
We have prepared a detailed brief which the clerk of the committee has kindly
agreed to distribute to all members of the committee. She has also agreed to
distribute our brief in both official languages at a later date.
I will not go into a lot of detail, but I did want to make an important point.
We think that if the commission is in effect, as it was with the Lang
commission in 1983, that it should be a non-binding commission and that
Parliament must ultimately make the decision.
Although this next point was not actually dealt with in the Judges Act, if we
are concerned about the independence of the judiciary, which Bill C-37 is
attempting to deal with, why was the very serious matter of the appointment of
judges not dealt with? We brought in our Charter of Rights in 1982, and the
judges became so much more powerful. However, we still retained our
old-fashioned method of appointing judges. We are way out of step. We are the
only democracy in the western world that has this old-fashioned system of
appointing a judge by a recommendation from the Prime Minister. This system is
outdated. Times have changed, and we must move along to a new appointment
I do not wish to belabour the Scott commission, but because of Mr. Scott's
intimacy with the Department of Justice and his history of being on the
judicial advisory committee to the Minister of Justice, how impartial are his
recommendations with regard to the salaries of judges? Under this new
provision, the recommendation under the Judges Act, the Chief Justice of Canada,
for example, will make $225,000 annually in salary, which is far more, I think,
than any of you make, but also far more than the Prime Minister makes. A puisne
judge would make $175,000 in the superior court, which is very generous.
However, consider that the average lawyer in Canada, according to the 1996
statistics from StatsCan, makes $81,700. A lawyer would more than double his or
her income by an appointment, which would be very nice.
It is significant that Martin Friedland, who was requested by the Canadian
Judicial Council to produce a report and study of judges' salaries, stated in
his report, which was filed in May 1995, that Mr. Scott said the purpose of
these generous salaries was to encourage people to accept appointments to the
However, Mr. Friedland, in a report commissioned by the judiciary itself, made a
very significant point. It is not the salaries; it is the pensions that the
lawyers want through their appointment. Eighty per cent of the judges' pension
is paid by the taxpayer and only 7 per cent of his salary, according to Mr.
Friedland. It is not the salary that is important. If you had to put money in
RRSPs, you could imagine the amount of money that would be involved.
As a national women's organization, we were extremely pained by the provision in
this act dealing with spousal benefits. As women, we are concerned that a
legally married wife could be treated with discrimination in situations when a
judge cohabits with another woman -- and, there are more male judges than
female judges -- for a period of one year. In Ontario, one must have at least a
three-year common-law relationship before it is recognized in law. With this
bill, once a judge cohabits with a new partner for one year, the woman who had
been married to him for 30 or 40 years and is the mother of his children loses
There are several provisions in the bill that we are concerned about with regard
to judges' pensions. I have gone into the details in our brief. For example,
when a judge separates from his wife, enters into a new relationship and dies
shortly thereafter, the annuity that he agreed to with the legal spouse may
well be lost because it stops with his death and a new annuity takes place.
Another problem concerns the one-sixth lump sum payment in salary -- and, I
heard part of the Minister of Justice's comments about this -- that goes to the
person with whom the judge is co-habiting at the time of death. Again, this is
painful to us, as women. We are thinking of women who have many years of
marriage behind them. This amount will be considerable. For example, a puisne
judge makes $175,000 per year, and one-sixth of that amount represents more than
simply burial expenses. The judge's children by the legal marriage and the
judge's former spouse will not be included in this award. At the very least, it
should be prorated according to the time they have spent together.
We realize that times change, and traditional marriages today are often
relegated to the back door in this modern society. However, there are 8 million
people in Canada who are living in traditional marriages. That is to say, the
vast majority of people enter into traditional marriage, not because they are
forced to do so, but because it suits them and it works best for them. Under
this legislation, women who committed themselves to the obligation of marriage,
which is the very framework of our society, will suffer discrimination and be
pushed aside by someone who, after a brief period of one year, will receive
numerous recognitions and financial benefits. That is painful for us, as women,
and we find it discriminatory.
We know that people enter into common-law relationships, but we wonder about
this one-year period. The minister said that the Canadian Pension Plan also
stipulates a one-year period before benefits can be received. However, surveys
involving the CPP have recognized that this is unfair. In fact, one of our
members has experienced difficulty with that stipulation. She lived with a man
for 25 years who then left her and remarried. He now lives with a woman in a
common-law relationship and within one year this woman will receive the CPP.
That seems unfair. We see the same happening again here with the Judges Act.
When we talk about equality and fairness, we must look at what is fair to
everyone. Spouses in a traditional marriage -- and, it could be a man married
to a female judge, too -- seem to be facing discrimination and a lack of
respect and dignity.
I should like to go on to the question of a common-law relationship as it
relates to what the previous speaker, Mr. Robinson, said about same-sex
marriages. In his enthusiasm for his cause, he has probably misrepresented the
legal situation. The legal situation with regard to same-sex relationships is,
first, that the judgment handed down in April by Madam Justice Abella stated
that she would deal only with the particular provision of the Income Tax Act,
not the broader issue of same-sex marriages.
Second, she did not refer to the leading case on same-sex marriages, the Nesbit
and Egan case that was handed down in May 1996, which said specifically that
same sex arrangements are not the same as traditional marriages because
traditional marriages produce the next generation, which is the foundation of
society; whereas same-sex relationships, because of obvious biological
differences, cannot make this significant contribution. Because of the
importance of the traditional marriage to the future of our society, the state
has chosen to give special benefits and recognition to those people who chose
the traditional marriage. Based on that decision of the Supreme Court of Canada,
homosexual and lesbian relationships are not an equality issue. They are two
different arrangements. Society has given benefits to the traditional family
simply because it is important for the future of society.
It is also significant that Mr. Robinson mentioned that the Rosenberg case was
not appealed to the Supreme Court of Canada by the federal government. That was
not done because the issue in the Rosenberg case dealing with same sex benefits
was already argued on March 18 in the M v. H case, which will be the definitive
decision on same sex relations when it comes to whether they are equal to or
different from the traditional marriage. Why would they appeal a decision by a
provincial court when they already argued it in the Supreme Court of Canada one
Any decision in regard to same sex relationships by this committee would be
extremely premature simply because the Supreme Court decision in Nesbit and
Egan already addressed that issue; and, second, the definitive decision is yet
to be handed down in the M v. H case. They are still grappling with it.
The traditional marriage of men and women has been the norm for the major
religions and the major cultures of the world. To say that the traditional
marriage is exactly the same as a lesbian and a homosexual association is to
take our whole civilization as we know it and turn it upside down under the
heading of "equality" when it is not equality because they are two
This is a significant decision that cannot be trivialized by simply mending it
through a committee decision when it is already before the Supreme Court. It
will involve a dramatic change in our society that is counter to religious
beliefs and cultures worldwide.
In February of this year the European court, which is supposed to be a
progressive court, handed down a decision wherein they stated that same-sex
marriages or relationships are not the same as traditional marriages. In our
national organization, some of us are single, some are married, some are
divorced and some are separated. We are the same as everyone else. However, we
believe that we must preserve the traditional understanding of marriage. If we
do not do so, then the traditional marriage is simply an alternative lifestyle
not to be recognized for its particular contribution to our society.
Furthermore, the sacrifices made by couples, past and future generations, who
enter into traditional marriages are denigrated and lost because it no longer
matters. People can live in any relationship and have it sanctified by law, but
the traditional marriage should be placed in another category.
With regard to the common-law relationship as set in the Judges' Act, the
Supreme Court of Canada in Nesbitt and Egan said that the common-law
relationship is, in fact, comparable to the traditional marriage for the basic
and significant reason that the common-law relationship also produces children.
They are men and women and, therefore, the Supreme Court's decision was that the
common-law relationship may well be comparable to the traditional marriage.
However, we would suggest that a one-year common-law relationship is
insignificant as compared to the duration of a traditional marriage. We find it
fundamentally discriminatory against women and men who enter into marriage,
committed to the obligations, duty and sacrifices, to be shoved aside by this
legislation because someone has lived with another person for a one-year period.
That summarizes much of what was said by the three political scientists. We
support much of what they say and we are building on what they have said.
We are open to questions.
Senator Beaudoin: You referred to the judicial compensation and benefits
commission and to section 100 of the Constitution. There is no doubt that
Parliament has the direct power to legislate in respect of the salaries, the
pensions, and the treatment of judges. It is also true that this proposed
legislation must be passed by the Parliament of Canada.
Would you say that Parliament does not have the power to establish a commission
to help Parliament in this difficult field of remuneration so that it may be
more fair and more in line with the realities of life? It is perfectly legal to
do that, unless you tell me that Parliament is losing its authority in doing
this, but I do not believe that is the case. As a matter of fact, we may amend
that next year.
Ms Landolt: I would agree with you, senator. We do not object to the
establishment of a commission per se as long as Parliament reserves the right
to say yes or no to any recommendations, and they have done so since 1981. They
have often disregarded recommendations. Our concern relates to the make-up of
this commission. First, it is not at arm's length; and, second, it must not be
binding. To say that they are simply helping Parliament would be very well put
and, in that respect, we would agree with you. There is nothing wrong with the
establishment of the commission itself, just as there is nothing wrong with the
Canadian Judicial Council. As long as this is at arm's length and it is not
binding, we would not object to it at all. We would just carry on as we did in
1981 under section 26 of the Judges' Act.
Senator Beaudoin: Is it, in your opinion, definitely and absolutely binding?
Ms Landolt: Mr. Justice Lamer's decision troubled us greatly. I can read the
quote. I believe it is significant.
Senator Beaudoin: That is the one you read a moment ago. If it is tantamount to
an amendment to section 100 of the Constitution, I would agree with you.
Ms Landolt: What he said was tantamount to that. His actual words are very
important and they are found at page 4 of our brief. Mr. Justice Lamer said:
...to avoid the possibility of, or the appearance of, political interference
through economic manipulation, a body, such as a commission, must be interposed
between the judiciary and other branches of government.
With regard to the decision of the commission he then went on to say:
The recommendations of the commission would not be binding on the executive or
the legislature. Nevertheless, though those recommendations are non-binding,
they should not be set aside lightly, and, if the executive or the legislature
chooses to depart from them, it has to justify its decision -- if it need be,
in a court of law.
That is what concerns us. That seems pretty clear to us that what he is saying
is that the final decision lies with the judiciary.
Senator Cools: That is what he is saying.
Senator Beaudoin: I agree with you, it is pretty strong.
The Acting Chairman: We are not here to judge Justice Lamer.
Senator Beaudoin: The fact is that he used the words "not binding" and
he refers to the burden of proof and he says that, if the executive goes
against the suggestion or the recommendation then it must justify that even
before a court of justice.
Senator Cools: That is pretty clear.
Senator Beaudoin: I would have said that very differently.
Ms Landolt: A judge in a court of law could say that is not a reasonable
decision and knock out Parliament's decision. The judges would have the
ultimate say. On one hand he is saying it is not binding but he ties it up very
nicely in the next sentence by saying, "You better do what I say or we can
throw it out."
Senator Beaudoin: We can still plead before the same judge that he has said that
it is not binding.
Senator Cools: Her point is that Parliament should not be in that position.
The Acting Chairman: Let us ask questions.
Senator Grafstein: I put exactly that question to Professor Ziegel and the
others. I was referring to the first reading of the bill. I did not see the
bill as passed by the house, but there is a provision there that says, in
effect, there will be a commission and a report. The Attorney General is
required to report at a certain time but, between that time and when he must
submit his final report, a report will go to the house and the house must
debate that and, in effect, it goes back.
However, I agree with you that, notwithstanding that intermediate step, and I
did not have that in front of me when I was dealing with Professor Ziegel, it
still puts the ultimate decision in the hands of the court for the right to
review whether or not the process was due process. They decide due process
principles. Having said that, it is an interesting point.
I would like to turn to your much more difficult question of equality under the
Charter as it applies to different relationships. This is a very strange
provision because a surviving spouse is defined, again, as a person of the
opposite sex -- lay that question aside whether it is same sex or opposite sex
-- who has cohabited with a judge in a conjugal relationship for at least one
If I recall the common law correctly, a common-law relationship must be
established for a reasonable period of time, and that notion of a reasonable
period of time was imported into our property rights, provincially, from
California. In effect, in Ontario, a common-law relationship exists if the
parties have cohabited for three years. Is it three years?
Ms Landolt: It is three years in Ontario.
Senator Joyal: I believe it is the same in Quebec.
Senator Grafstein: It takes three years to establish proprietary rights, but
this seems to be even shorter than that. This presents a problem because in the
question of the fairness of specifying a non-secular relationship as opposed to
a secular relationship, there must be some parity. The one year appears to be
difficult to justify.
Where you draw the line is difficult as well. The line we have drawn in Ontario
on community-property rights is at three years. That is an appropriate issue
for us to deliberate on and I thank you for bringing that to our attention.
I wish to deal with the question of same-sex relationships, and there is no
question at all that this is an evolving value. In other words, if you examined
that value 20 years ago, that is, pre-Charter, there would have been a
different consensus in the country about what is equal in society, never mind
equal under the law.
Today, I think one must recognize that there is a growing consensus that secular
versus non-secular relationships have some sort of equal status and same-sex
versus opposite-sex relationships are moving in that direction, whether some of
us or some groups in society like it or not.
The Acting Chairman: We are referring to producing and non-producing
Senator Grafstein: Yes. I understand the witness' position, but even if I were
to accept your position, the factual basis is changing under our feet as we
move along. I want to take you through my thinking and then you can respond.
Earlier we heard the minister talk about dependency. I assume from what you say
that, on the question of a dependent receiving remuneration from the state
after the active partner deceases, you would not have any objection as to
whether it is male or female?
Ms Landolt: We have two concerns. First, as I mentioned, we wish to recognize
the traditional marriage because the traditional marriage is the future on
which the whole of Canada is based in common-law. We want to give it
recognition as a social policy to encourage the birth of children because we
need that. We have one of the lowest birth rates. We are not even reproducing
ourselves and immigration is not filling the gap.
That is important and that is a social policy which legislators must determine.
Heretofore, relationships have always been a legislative matter. What has
happened in Canada does not include all people. It is not the general
population that is going for same-sex marriages. An Angus Reid poll in 1982, a
Gallop poll in 1992, and an Angus Reid poll in 1994 said that the majority of
Canadians feel that the traditional marriage must have priority. They think
that same-sex marriage is not good for children; it is not good for family
structure; it is not good for society. If people want to have such a
relationship, it is their business; nobody will stop them. However, the Canadian
population does not go for it.
Who is going for it? Some of the appointed members of the court. Madam Justice
Rosalie Abella did not base her judgment in Rosenberg on any precedent or any
law. In fact, she ignored the Supreme Court of Canada's binding precedent and
said that she did not agree with it, so she threw it out.
In every case in Canada on same-sex benefits, there has never been produced
evidence that they have suffered discrimination. It has never been proven that
they have suffered discrimination in their relationships. In fact, the
Rosenberg case dealt with RRSPs and whether a same-sex couple could get the
same RRSP benefits. The court was shown that there was no difference in
financial return if you listed your partner as a spouse or as a beneficiary. So
that is not the problem.
Senator Grafstein: I follow your argument, but you are not quite addressing my
Ms Landolt: Let me finish my second point. First, we want to raise the
traditional family as a priority. A same-sex relationship would just be an
Second, there is only so much money to go around. You must take money away from
one pot to fill in the other pot. We need a practical solution. Again, this is
a matter of social policy. Do we want to give everyone the same benefit or do
we want to recognize the contribution of the traditional family?
There is one thing I do find with same-sex marriages. It is discriminatory to
give benefits to them but not to a mother and her son living together, or two
brothers or two sisters. That is the ultimate discrimination if two homosexuals
get benefits and not brothers or sisters or mothers and sons. Have I missed
Senator Grafstein: No, we are getting closer, but for the fact that a
relationship does not produce an offspring, and you say that that is the higher
architectonic to which we should be addressing ourselves. I can make a
convincing argument to say that, under the Charter, what is important is not
respect for a different relationship but the question of giving sustenance and
providing equality for a dependent relationship. For instance, a judge in the
United States Supreme Court -- and there was some controversy about this -- was
appointed in the last decade. He was a bachelor who lived with his mother. As I
thought through the Attorney General's comments, my response was to wonder why
that mother, who has supported her son, should not be considered his dependent
should she survive him?
Ms Landolt: You are perfectly logical, Senator Grafstein.
Senator Grafstein: You have raised the point that our limited resources are
stretched with major objectives. I saw a personal example just last week. A
very wealthy friend of mine has a younger wife who is a judge, an excellent
judge. She was not appointed for the purposes of receiving, in effect, her
pension in the event of her premature demise; on the contrary. We have moved
from an appropriate base that nobody could say is discriminatory -- that is
dependency -- to a situation of recognizing relationships without any
It is interesting. There is not even a requirement for a conjugal relationship.
We say cohabitation does not necessarily mean a conjugal relationship. This is
quite a strange bill.
Ms Landolt: It is very strange.
Senator Grafstein: Your points give us pause but I am not sure that I can agree
with you that, with the changing value structure, we can treat a spousal
relationship, same sex or opposite sex, in the way you are suggesting. I think
things are moving too quickly.
Ms Landolt: Perhaps not with the public, but certainly with some judges and
Senator Grafstein: No, I am not talking about the judges. I am talking about
Ms Landolt: I do not know what you are gauging. I can only go by two national
pollsters. I would not know better than anyone else, but that is what the polls
Senator Grafstein: The military in the United States is the most democratic
organization in that country. There was a lot of controversy about this but
same-sex relationships are recognized.
Senator Cools: Could I have a clarification, Senator Grafstein? Many of us would
have sympathy for the case you have just described of the judge and his mother.
Did you say that the standard should be widened to dependency?
Senator Grafstein: My problem is that we are trapped by the construction of this
bill. It does not make dependency as a condition precedent to a benefit. The
state gives the benefit for the relationship, not for the dependency.
Ms Landolt: Senator Grafstein, I would not want anyone to get the idea that we
are opposed to the dependency concept. Obviously, in the example you give, it
seems sensible. Our problem is one of practicality. Financially, do we have a
big enough pot?
Second, where does this put the traditional marriage which historically has
always been recognized because, without it, there is no future. That is the
only reason why you give special benefits. By making same-sex benefits the same
as those for heterosexual couples, you are discriminating against all these
people who are in dependency relationships and who could use this extra funding.
It is a very strange world we are living in. We are pickpocketing and giving
some people benefits and not others. That is a concern.
Senator Fraser: As the chairman has indicated, I am a new senator and, as such,
I may be lacking some background.
However, I would like to clarify my understanding of your position on the
question of survivor benefits. I think I understand your position on same-sex
couples, and I am not talking about them. I am talking about heterosexual
couples. I am not quite sure whether what I hear coming from you is an
objection to common-law unions or an objection to striking long-time wives off
the rolls after they have been divorced.
Let me explain. As I understand this bill, in apportioning survivor's benefits
as between a common-law spouse and the preceding but not divorced spouse, the
apportionment would be done in proportion to the length of each relationship.
That is to say, a wife who had been with a husband for 25 years and a woman who
had been his common-law spouse for one year would share accordingly. The wife
would get 25/26ths of the benefits, which does not strike me as jettisoning
Ms Landolt: It is not that straightforward. If it were, there would be no
problem. I would understand that.
The Acting Chairman: Senator Fraser had not finished her question.
Senator Fraser: No, I had not.
It seems to me that where the long-standing wife gets jettisoned -- and this is
why I am asking you to bear in on precisely which point it is that disturbs you
more -- is where she gets cut off after divorce and, if she marries someone and
is married for 24 hours and he dies on his honeymoon, she gets it all.
Ms Landolt: As to the question of just getting a pension, we have no problems
Senator Fraser: What is reasonable?
Ms Landolt: If he -- if the judge -- and I am using "he" while it
could also be "she" --
Senator Fraser: You are worried about women and are therefore worried about male
Ms Landolt: If it is just a matter of prorating the pension between the two,
there is no problem. However, there are more subtle complications in the bill.
The complications I see are with, for example, clause 52 of the bill which
states that the surviving spouse will receive an annuity. That surviving spouse
will be the one with whom he is living at the time of death. There is no
provision under clause 52 for a divorced spouse. She is left out in the cold.
If a judge leaves his wife, for example, and lives with someone else, what
happens to that one-sixth? She does not receive one-sixth of his income at the
time of his death. What happens when a judge divorces his wife or separates and
it is set out in their separation agreement that she would receive part of his
pension, for example, $150,000? What would happen if he dies and this bill has
become law? The previous agreement would be wiped out because this measure
would supersede the original agreement. There are different categories of wives
It is all so complicated. I do not think anyone thought about that.
Senator Fraser: If I understood what we were told earlier today, along with the
clarification I received from the staff member, in fact, this bill would not
supersede separation agreements.
Ms Landolt: With respect, I will say there is a major quibble among lawyers
because the legislation would supersede the marriage agreement. It just happens
that a legislative act would take over.
Senator Grafstein: Please refer to clause 9 of the bill which would replace
section 44(4) of the act.
The Acting Chairman: I think your question is addressed in that clause.
Ms Landolt: A separation agreement is different from a divorce settlement. To
me, separation agreement simply means an agreement between two parties. It is
an agreement between the husband and wife. However, it is not the same as a
divorce settlement which the court decrees. No one calls a court order a
separation agreement. The court decrees that there should be maintenance, for
example, in a specific amount per month.
Senator Grafstein: We should consider that question, Mr. Chairman. It states "a
separation agreement entered into in accordance with applicable provincial law."
As opposed to talking about the divorce agreement, separation is a generic term
that applies to a separation between parties, whether it is a divorce or
separation. We should look at that as a question of drafting.
Clearly, I read this to mean a separation agreement, be it divorce or
separation, that is entered into freely by two parties; and, in that process,
is he or she, depending on who it is, waives entitlement.
Ms Landolt: "Separation agreement" means one thing to me, while "divorce
settlement" means another. It states, "under provincial law." It
is ambiguous, I have to admit. "Under provincial law" means that
there is legislation for separation agreements as well as legislation with
regard to divorce settlements.
Senator Grafstein: We will ask our law experts to advise us.
Senator Cools: The issue that I find a little odd -- as you say, it is a bizarre
bill at any rate -- is that it is not unusual for individuals to enter into
separation agreements and then later on there is a change in circumstances and
the person goes back to court to have a change in the separation agreement. What
this does, and the witness is perfectly right, is that it supersedes the
ability of any person to return to court and say that, because there has been a
change in circumstances, they believe they made a mistake. It blocks that, and
that is unusual.
Ms Landolt: I would like to comment on a point raised by the senator. It is a
very complex problem. We are reading it as women and asking this committee to
re-examine and revisit these provisions, bearing in mind that the long-standing
wife and children do matter.
The Acting Chairman: Ms Landolt, do you think a lawyer who is advising the wife
of a judge would advise her to waive that right? I doubt it.
Senator Cools: It happens.
Ms Sophie Joannou, Treasurer, REAL Women of Canada: What happens when the
husband leaves his wife after 25 years, after having fooled around for 10 years
or 15 years, and he then decides to enter into a common-law relationship and
after one year he dies? The pension that was accumulated in the 10 or 15 years
will then be prorated to the common-law spouse. Is that fair to the first wife
and their children?
The Acting Chairman: The first marriage was interrupted because of a divorce or
Ms Joannou: Yes, and then he does not enter into any permanent relationship for
10 or 15 years and then enters into a common-law relationship.
The Acting Chairman: We have the answer to that.
Ms Joannou: What is it?
The Acting Chairman: When the marriage still exists, it is prorated between the
married spouse and the common-law spouse.
Ms Joannou: It is the date of separation, even though you are not divorced, that
counts for prorating.
The Acting Chairman: If there is some question in the minds of my colleagues, we
will ask those questions of the officials of the department.
Senator Sparrow: On the yearly salary, the minister stated that the purpose for
that was to pay funeral expenses, et cetera. You made the comment when you were
talking about several hundred thousand dollars, one-sixth is a lot of money.
Indeed, it is.
It seems to me it is an unusual provision. Normally, in wills made by anyone,
the first provision is to pay for any funeral expenses or debts. When the
minister made that statement, it was just off the top of her head. It seems to
me highly unusual that that provision would be in a bill. Under the Senate
provisions and so on, it says that the payout goes to your estate, and it seems
to me that, if there were any benefits, they would normally go to an estate,
and from that the funeral expenses and any other expenses would be paid. It
does not say here, as the minister said, that the money will be used for that
purpose. The money may go to the person who cohabitated with the judge for one
year, and she may take the money and disappear. That can easily happen. That
may be a concern of your group.
There must be something unusual -- such as an individual case -- that would
prompt that type of provision in the bill.
Ms Landolt: When we saw that, senator, our reaction was: Why does this
common-law wife of one year get this money? It is like a bouquet of flowers
presented to her for one year's cohabitation. Our concern was for the other
people involved, the children? What about the legal wife or former wife? It
does not seem to make sense to us. It seems to be giving a benefit to someone
who is just lucky to live with that man for one year. She gets all this money
handed to her for what? You are right that funeral expenses are always covered
out of the estate. She is just given a gratuitous gift, thanks to this act.
Again, it is deprivation and discrimination against a long-standing wife and
Senator Sparrow: No judge will die in poverty.
Ms Landolt: If he has too many wives, he may.
Senator Sparrow: I would think that should be examined.
The Acting Chairman: Thank you, Ms Landolt.
Honourable senators, before we retire for the night, I have a suggestion to
make. We have been in touch with Mr. Scott, the chair of the commission, and he
is prepared to appear before our committee as a witness next week. We could
perhaps hear him next Wednesday, if that is agreeable. Do your wish that we
invite him to appear? We are open to suggestions to hear other witnesses as
Senator Cools: Could we speak for a moment about the issue of compensation for
The Acting Chairman: We can discuss that amongst ourselves. We have rules on
Senator Joyal: I have a question which I wish to share with my colleagues.
According to the testimony we received this afternoon, it seems that the
suggestion put forward in the bill on the establishment of a commission removes
part of the responsibility of the Parliament of Canada as it relates to
remuneration for judges. Would it not be advisable to get a comparative analysis
of how other Commonwealth systems have dealt with the issue of paying judges in
a way that protects the principle of independence, the freedom of decisions,
and so on, and which is consistent with the sovereignty of Parliament? In the
establishment of a commission there is certainly a very important principle at
stake. I do not think that discussion took place in the other place.
Before voting on that, I would be interested in knowing how other common-law
systems have dealt with that issue, even though they might not have, in their
constitutions, a section similar to our section 100 which very directly vests
the responsibility with the Parliament of Canada. Perhaps in other countries
they do not have that kind of clear-cut responsibility. In some instances, it
might be in the hands of the executive. I do not know.
It is a question I wished to entertain with our witnesses, especially Professor
Ziegler. When Senator Lewis raised this question, it was touched on by
Professor Ziegler in the last answer. He mentioned New Zealand, Australia and
the U.K, but only in a general way.
As far as I can see, and according to our witnesses and the reading we have been
doing, it seems that the report of the triennial commission has not been acted
upon for all kinds of reasons. That prompted dissatisfaction among the
judiciary. They felt that the Parliament of Canada was not acting according to
the expectation of the learned justices.
I believe that, if we are to change the system in a fundamental way, we should
know how other systems have been tackling this issue. If witnesses could attend
to explain comparative systems, I would certainly not feel that it would be a
waste of time. Intellectually, I would find it satisfactory. It is so
fundamental that I think it is worth taking an hour or so of our time to discuss
The Acting Chairman: When we have a steering committee meeting on Tuesday next
when the chair is back we will raise that issue, as well as any suggestions
that Senator Cools or other senators might wish to make. As I said at the
beginning, we have more time now to study the bill.
Senator Grafstein: Perhaps we could do a little research on section 101 -- where
did it come from; what was the history of that; what was the extent of this. In
my mind, the statement was clearly put in to assert Parliament's supremacy over
judge-made law. My memory might be foggy, but my recall is that there was a
tremendous debate in the country, particularly among the provinces, about not
having a charter. I remember particularly Mr. Sterling Lyon in Manitoba, who
made the strong case that this would subvert Parliament. I thought Joe Clark
made that argument quite effectively.
Having said all of that, one of the ways I believe that the Government of Canada
dealt with that issue was to say that judges would not be given a mandate to
become, in effect, politicians and usurp the powers of Parliament. As I recall,
that was the origin of that section. It would be very useful if we could have
some evidence on that question. I have not read the P.E.I. decision completely,
but that does not appear to have been dealt with fully.
The Supreme Court of Canada has -- I do not like to say this out of school -- a
way of muting the issues that tend to subvert their conclusions. I hope that is
not on the record anywhere.
The Acting Chairman: We take that as a suggestion.
Senator Grafstein: It would be useful to have that information because it would
put us back to phase 1, if I may call it that, and we would know what was the
effect of that section and what we will be doing by including this particular
clause. There might be another way of coming at the existing system by issuing
a mandate that they must report within a given period of time. That might be a
simple answer to all of this.
Senator Beaudoin: It was a different world in 1867.
Senator Cools: Perhaps we could also give some consideration to the particular
issues that Senator Stewart raised in his question yesterday on the floor of
the chamber, in particular looking at the peculiar parliamentary issues.
Section 100 has been with us since 1867 and it has an antecedent existence in
the Act of Union. What we should be looking at is the origin of section 53(1) of
the Judges Act, how it has developed from its inception, and how it is being
used right now, which is the point that I think Senator Stewart supported last
That is a parliamentary question. That is not a legal question.
Senator Beaudoin: Section 100 has been around since before Confederation.
Senator Grafstein: It was used as a defence during that debate to say this will
Senator Cools: It was.
The Acting Chairman: We can see in our group we have pro-charter senators and
maybe lukewarm supporters.
I thank the witnesses. We will adjourn.
The committee adjourned.