Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs

Issue 6 - Evidence

OTTAWA, Thursday, May 10, 2001

The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-12, to amend the Judges Act and to amend another act in consequence, met this day at 10:50 a.m. to give consideration to the bill.

Senator Lorna Milne (Chairman) in the Chair.


The Chairman: Honourable senators, we are about to begin our discussion on Bill C- 12. We have with us the Minister of Justice, the Honourable Anne McLellan.

Please proceed, Ms McLellan.

Honourable Anne McLellan, Minister of Justice and Attorney General of Canada: Honourable senators, it is a pleasure to be here today to discuss with you Bill C-12, to amend the Judges Act.

The bill proposes certain amendments to the Judges Act to ensure appropriate compensation for the federally-appointed judiciary in Canada. It is intended to implement the commitments made by the government in its response to the report of the 1999 Judicial Compensation and Benefits Commission.


The strength of Canada's judiciary is a key factor in our prosperity and health as a nation. As the guardians of the constitutional right of Canadians to have peace, order and good government, judges form an important pillar in our democratic society.


These are not new ideas, as all of you know. It was John Locke, writing some two centuries ago who recognized that if government is to be based on the rational consent of human beings, adjudication by impartial and independent judges must be regarded as an inherent requirement of political society. Indeed, Bill C-12 has sparked very interesting debate in this house on principles going to the foundation of our ideas of law and governance. Even in that debate, consensus is clear on the importance of an independent judiciary to our system of governance.


Canadians are envied around the world for the quality, commitment and independence of our judiciary. Increasingly our court system and our judges are looked to as models of integrity and impartiality by developing democratic nations as they strive to implement fair and effective systems of their own.


Observers of current affairs need not be reminded of the importance of a courageous, independent and impartial judiciary in ensuring the basic elements of a free and civil society. Canadians recognize that the importance of an independent judiciary cannot be taken for granted. It is a pivotal element that supports the rights and liberties of all of us. Without judicial independence, our country would be a very different place and, dare I say, a much poorer place.

It is therefore with pride that the government notes that Canada's experience and expertise has been sought in the development of judicial and court systems around the world. For example, as you are no doubt aware, during a recent visit to China, the Prime Minister celebrated the shared success of a five-year cooperation project on the training of judges undertaken by our two nations. Canada's contribution toward the training of the Chinese judiciary on issues such as ethics and independence will be integrated into ongoing judicial teaching.

As honourable senators know, the three constitutionally required elements of independence are security of tenure, independence of administration of matters relating to the judicial function and financial security. It is directly in support of the principle of judicial independence that section 100 of the Constitution entrusts the fixing of judicial salaries, allowances and pensions to Parliament.

Senator Grafstein and others have provided the historical overview of the Judges Act during debate at second reading. I could not do the topic greater justice.

The evolution of the provisions in the Judges Act clearly demonstrates Parliament's strong commitment to supporting the financial and security of tenure aspects of judicial independence through legislative pronouncement.

In the past, the procedure for the rather inexact art of setting judicial compensation has been a matter of particular interest to senators. Therefore, I think it is worth reviewing the evolution of the process. The first important formal process change was implemented by Parliament through the Judges Act in 1981. Until then, judicial compensation had been reviewed by ad hoc advisory committees which were established by and reported, from time to time, to the Minister of Justice.

In 1981, recognizing the importance of receiving objective advice with respect to judicial financial security, Parliament established a Judicial Compensation and Benefits Commission to inquire into and make non-binding recommendations with respect to the adequacy of salaries, pensions and allowances.

In 1998, Parliament amended this process to further enhance the commission's independence, objectivity and overall effectiveness in support of the principle of judicial independence.

An important element of this enhanced process is the set of statutory criteria which guides a commission in formulating its recommendations. As noted by Senator Grafstein, those criteria were introduced as a result of an amendment proposed here in the Senate and agreed to by the House of Commons.

I suggest that the statutory criteria have demonstrably increased the perceived objectivity of the commission process. The criteria served as a central reference point for both the parties and the commission during the first quadrennial commission process. Parties framed their submissions to the commission in relation to those criteria while the commission evaluated the appropriate quantum of judicial compensation by reference to the criteria.

I want to underscore that while all of these changes have improved the quality of the advice that the government and Parliament receive through the commission process, the role of parliamentarians in establishing judicial compensation has not changed. The commission's recommendations are not binding. It is on Parliament that the Constitution has conferred the exclusive authority and responsibility for establishing judicial compensation. It is true that where Parliament decides to reject or modify the commission's recommendations, it is legally and constitu tionally required to offer publicly a reasonable justification for this decision. Given that the purpose of the commission is to ensure public confidence in the objectivity and effectiveness of the process by which our judges are compensated, we believe it is a reasonable requirement and one that the government has met in the case of the commission recommendations which it has chosen not to propose for implementation.

The government is proposing implementation through Bill C-12 of most of the recommendations of the Judicial Compensation and Benefits Commission, including proposed salary in creases and some modest improvements to pensions and allowances.

Madam Chairman, senators, I encourage all committee members to take the opportunity to read the commission's report, if they have not already done so. It is thorough and of a quality that will set a hallmark, a benchmark for future quadrennial commissions.

In light of all the factors considered by this independent commission, including trends in both the public and private sectors, the government is of the view that the proposals in Bill C-12 are within the range of what is reasonable and adequate to meet the constitutional principle of financial security.

That said, the commission's recommendations are not binding and the government is not prepared to implement all the commission's recommendations. Specifically, the government will defer a proposal that would increase the number of supernumerary or part-time judges pending the outcome of important consultations with the provinces and the territories.

In addition, the government has not accepted the commission's recommendation with respect to legal fees as the commission's proposal does not establish reasonable limits to these expenditures. Instead, the government is proposing a statutory formula designed to provide for a reasonable contribution to the costs of the participation of the judiciary while at the same time limiting their scope.


The Government of Canada is committed to the principle of judicial independence as it is a fundamental precondition to ensuring the vitality of the rule of law in our democratic system of government.

In conclusion, Canada is fortunate to have a judiciary renowned internationally for its competence, commitment, independence and impartiality.


Honourable senators, I am pleased to be here today to further safeguard the principle of judicial independence in Bill C-12. I hope through my comments I have provided the members of this committee with some justification, some understanding and context for why not only we, as the government, but all Canadians view the principle of judicial independence as a hallmark of any civil society, of any truly democratic society.

Two of the hallmarks of any democratic society, a functioning democracy, are respect for the rule of law and an independent judiciary which helps enforce respect and develop respect for the rule of law. Therefore, the task that we are about in Bill C-12 is one that goes to the very essence of a functioning democracy. With that, honourable senators, I would be happy to entertain questions or comments.


Senator Beaudoin: The principle of judicial independence is deeply respected in our country. I fully agree with you that our judicial system is strong, independent and impartial. The other day, however, in the Senate, one or two senators wondered who would have the last word.


Who has the last word? We do not often see the comments of constitutional experts that the power of the purse is with the legislative branch of the state. This is why the government is responsible to the House of Commons on a vote of confidence.

I do not have any problem with the jurisprudence and the question of the commission which examined the judges, Commission d'examen de la rémunération des juges. I do not have any problem with the decision of Mr. Justice Lamer that if we disagree on certain points, we must establish why. That is fair enough. However, could we not say that the parliamentary system, in the very end, may have the last word? It looks that way. If the answer is yes, then I have no further problems. However, what happens if the motivation is not accepted by the judicial branch of the state?

Senator Cools: They will put the Minister of Justice in jail.

Ms McLellan: Obviously, one thinks about ways to protect the independence of the judiciary from unacceptable interference by government, by elected officials. Unfortunately, we know of examples around the world. We see them reported daily in our papers. One must strike a balance.

Certainly, section 100 of the Constitution Act, 1867, gives to Parliament the power to set salaries and benefits for judges. That, in and of itself, is a power that could be abused, which is why the court has articulated in recent jurisprudence that we must provide a rational explanation. That is all. We have to provide a rational explanation. I do not believe that is asking too much of myself and the Government of Canada in the name of the independence of the judiciary.

The test is one of simple rationality, that is all. If I cannot offer a rational explanation, then I think someone should be raising some serious questions about how we, as a government, are exercising our power in relation to the judiciary. Therefore, I have no problem with the fact that the Supreme Court has said - and has made it quite plain - that it is for the Parliament of Canada to set the compensation and benefits for federally-appointed judges in this country and that there is a process in place through the now quadrennial commission, which is an exemplary process. It is the first quadrennial commission and we will learn from it. I think it is an exemplary process in terms of ensuring objectivity, effectiveness and increasing public confidence in the fact that the judiciary is independent.

I have no problem with the fact that the recommendations of the commission are reported to me. They are not binding upon me. After due deliberation of the commission, after hearing from many witnesses, judges, the government and any other interested party, if I am to refuse their recommendations, it is not asking too much, in a democracy which is committed to an independent judiciary, to expect me to at least meet the test of simple rationality. Otherwise, we should all have serious questions in terms of what we are about.

Senator Cools: I rise on a point of order. The minister says "we" quite often. Could she clarify if she is speaking of "we" the government or "we" the Parliament? I am sorry to cut you off, Senator Beaudoin, but this is making the minister's remarks unclear and hard to follow.

Ms McLellan: The power in section 100 is given to the Parliament of Canada. However, the recommendations from the commission are presented to me. As Minister of Justice, I am then charged with the responsibility of bringing either those recommendations or modifications to the floor of the House of Commons and the Senate - the Parliament of Canada. I, as I am doing here today, make my case on behalf of the Government of Canada to the parliamentarians, both elected members and senators, as to why I believe that which I am proposing in Bill C-12 meets the test of simple rationality and protects the fundamental principle of the independence of the judiciary.

The Chairman: The House of Commons has agreed with you because it has passed the bill.

Ms McLellan: Yes.

Senator Beaudoin: When you speak of the test of rationality, I agree with you. In other words, it is a burden of evidence.

Ms McLellan: That is right.

Senator Beaudoin: You must establish why. However, when it is done, the very last word, at the end, is Parliament's.

Ms McLellan: Yes.

Senator Beaudoin: If it is that, then I agree entirely.

Senator Andreychuk: You have said that the commission is rather new and we need to track it. Are you satisfied that you have struck the right balance in that there are those who need to understand the legal system and the judicial system as well as the interests of the public at large? Coming from Saskatchewan, I am mindful that we have had this debate with the provincial commission. Sometimes public confidence is eroded because people think the commission places too much emphasis on the needs of judges, as opposed to weighing the needs of the public. Do you think this bill reflects the fact that the commission has struck the right balance between public representation and judicial representation?

Ms McLellan: I do, yes, and not only in terms of the membership of the commission. After all, we appoint one member to the commission as does the judiciary and those members agree on an independent chair.

In its work the commission has struck the right balance. If that were not the case, I would not be accepting the recommendations which I have accepted.

We testified before the commission, as did judges and others. They have the ability to call upon expert evidence in a wide range of areas around compensation and benefits.

Let me reiterate that I think the criterion that the Senate asked us to include in the legislation establishing the quadrennial commission have become hallmarks. If you like, they are the first place to which the commission looks in terms of a list of very important criteria which we must take into account. Those criterion are about balancing the public interest and the interest of the judiciary. Of course it is in the public interest to have a fairly compensated judiciary which is not subject to influence by anyone in government. Those criterion speak to that balance you are addressing.

If you have read the report, I think the quadrennial commission has done an outstanding job. They have flagged areas for us in which more work has to be done. We agree, as do the judges, that more work needs to be done. We will do that work. It is early days, but my sense of this process is that it is one which Canadians can look to with confidence and say, "Whether we agree with the exact amount is not what is important. What is important is that there is a process which is objective, effective and free from any perception of influence by government in its deliberations."

Canadians do not talk about it every day, but when you push Canadians about the things they value the most, it is interesting to note that the institution in which most Canadians have the greatest confidence is the Supreme Court of Canada. One of the reasons for that is it is perceived to be objective, effective and free from undue influence by government. It only gets that way if we respect the principle of judicial independence.

Senator Andreychuk: I wanted to touch on another area, of which I am very supportive. I refer to the issue of judicial independence. Judges have now become a very important part of the reform process and of development around the world. I am supportive because, in the work that I do in the foreign policy area, the rule of law and good governance are the first areas that are considered. As you have pointed out, if there is not an independent judiciary, nothing else occurs.

It appears that most of the money for these projects comes from CIDA or the Department of Foreign Affairs and International Trade, as I understand it. It has been an evolving thing which is negotiated with other countries. I have been somewhat concerned that there is a close linkage with the operations of CIDA. Have you looked at whether there is a better way of funding these initiatives? Is it not time to examine them globally to ensure that the independence of the judiciary is respected from our point of view?

While extra salary for going abroad is not given, the opportunities are an incentive to the judiciary and play into its growth. I wonder whether you, the minister in charge of CIDA and the Minister of Foreign Affairs, Mr. Manley, have ever discussed an evaluation of the process of how these projects arise, how they are administered and whether they respect, to the greatest extent, the independence of the judiciary.

Ms McLellan: We have not done a formal review, but I would answer yes to the last of the issues you raise, in terms of respect for the independence of the judiciary.

You are right that most of these projects are funded through CIDA. The proposals are carefully reviewed, obviously, from CIDA's point of view, to ensure they are within its mandate and that the program proposal is effective.

There is another key consideration. As I know from my own experience visiting countries around the world, we could be in dozens of countries helping to educate judges and to build the culture of respect for the rule of law and the independence of the judiciary. Our judges are, without a doubt, viewed in most developing and Third World nations as the most ethical and to be full of integrity in terms of helping other countries struggling with these fundamental principles to come to grips with how one can do that. It is a slow and incremental process and, as we have seen recently in some countries, there are as many steps backward as there are forward in our goal to create functioning democracies and respect for the rule of law and an independent judiciary.

The demands are great on our judiciary to participate around the world. Obviously, the first and most important obligation is to serve as judges here at home and judges are very mindful of that.

People also need to keep in mind that some opportunities to go abroad and participate are dangerous for our judges. There are countries, which I will not name, to which our judges go where one has serious questions about their physical security.

I have tremendous respect for these judges. I have no fear that the judges who participate in these programs are somehow getting any benefit that is unfair to other judges. In fact, I applaud the judges who go around the world, some of whom go into difficult situations to bring the message of the importance of the rule of law and an independent judiciary.

We are lucky in this country, as we know, and the reality of even having judges visit some other jurisdictions is one fraught with security issues that we do not live with every day.

Senator Andreychuk: It is for that reason it is extremely important. The judges who are doing this should be commended.

My concern is that the development of these projects is within the domain of CIDA. I have wondered whether it is time to examine this with a different approach. We talk about the independence of the judiciary, but then it is the government that determines whether judges will go to a particular country.

Ms McLellan: No, it is the chief justices. It is absolutely not the government.

Senator Andreychuk: I refer not to the selection, but to the project itself.

Ms McLellan: The judges will determine whether a project is one in which it is appropriate for the judiciary to participate. They do not have to participate in any of these projects if they believe it is inappropriate and incompatible with their role. That is absolutely clear.

Senator Andreychuk: What I have seen are more demands, as you put it, than the projects proposed. Therefore, the selection of which projects go ahead sometimes is the function of the money and the overall objectives of CIDA in a particular country.

Ms McLellan: That is fair. The projects must fit within the overall mandate of CIDA in a given country. However, the judiciary does not and will not participate in any project that it believes is incompatible with its independence, or its role as judges.

Senator Joyal: There are two points that I would to propose to you this morning. The first point is in relation to the independence of judges. I have the impression from reading some judgments on very debated issues, especially those related to the Charter of Rights and Freedoms, where public opinion is divided either on moral grounds, on a regional basis or on sociological issues, that governments - and I do not single out the Canadian government or a particular provincial government - have a tendency to defer what could be policy decisions to the court. That tendency has given to the court, in the eyes of Canadians, a role which is perceived to be "judicial activism" or "political activism." If we want to be fair to the judiciary, we must recognize that.

I do not want to refer to a particular case. There are cases currently before the court that come immediately to mind. However, there is no doubt in my mind that this happens. To what extent are we responsible, or share responsibility by vesting the court with initiatives that could be settled by governments that live up to their principles? Would you care to comment?

Ms McLellan: You raise a very interesting point. We are all aware of the assertion that sometimes a government might leave a question to the court that could be resolved through consultation and either legislation or regulations or programming decisions.

At the end of the day, speaking from my own experience, in difficult areas, especially in the criminal justice system, what you do is engage on those difficult issues. You consult broadly. After having identified the problem and having consulted broadly with key stakeholders and interested individuals, you put together a response.

Whether it is a legislative response or a programmatic response, you put together the best response you can that you believe deals with the identified problem and is in keeping with our fundamental values, be those reflected in the charter or elsewhere. You move forward with that.

At some point, might someone challenge that? Of course, that is a normal part of our functioning democracy. It is the right of individuals or groups to seek review of decisions that I might make or that the government makes and that, ultimately, Parliament makes. Most of the decisions that are reviewed are the decisions of Parliament, if one is considering legislation.

I do not think that is passing the buck. An expression that is sometimes used by the media and others is that government is passing the buck to the courts. In most cases we act thoughtfully. That does not mean that in 100 per cent of those cases of action, be they legislative or programmatic, that the court will ultimately agree with our course of action or the balance we have struck. That is a key role for the judiciary and a key part of our democracy. That indicates, as far as I am concerned, that our democracy is functioning appropriately.

There are certain questions that I believe should not be carelessly referred to a court under the reference power. The court has cautioned government, in relation to the use of the reference power, where a government might have a tendency to refer inappropriate questions from time to time. The Supreme Court has clarified for us, in reaction to things like Senate references and other cases, how that power is to be used. Therefore, I do not believe that power has been abused or will be abused - I would hope not - by any government in the future. I believe the court is doing that which it is constitutionally empowered to do and we do that which we are constitutionally empowered to do.

Professor Hogg, the Dean of Osgoode Hall Law School talks about this. I like the way he talks about this, although there are those who have criticized him for his words. He sees the matter in terms of a dialogue between the legislature or Parliament and the courts. There is an ongoing dialogue between these two important branches of our democracy.

That is a long answer to say that I would hope that governments do not refer inappropriate questions to the courts. I do not believe that we do.

The Chairman: I suspect that the Minister of Justice may have been reading some of the speeches made in the Senate lately.

Senator Joyal: Thank you for your proposal of reflection. This is what it is at this point. It is important that we realize that the independence of the judiciary is a complex matter. In all humbleness, I do not think we can approach the service of the principle by one single avenue. There are many avenues of government decisions or non-decisions that drag the court into political debate.

I will not use much time because I have a series of questions dealing with certain provisions of the bill.

However, the dialogue is a very confusing concept between the judiciary and Parliament. It could raise and maintain the confusion.

As Parliamentarians, we have a responsibility to maintain the strict neutrality of the court. When parliaments make decisions, they have impact on the neutrality and the independence of the judiciary. I am always cautious about the word "dialogue" between the two branches because we know that dialogue means two persons who are at par, or who have a certain balance in terms of their status so they can maintain a relationship that is fair.

I am not sure that constitutional principle should be interpreted in that way. I do not wish to push more on this, but I am grateful for your proposal of reflection. We will have an opportunity to return to that.

My second point would be to raise the issue of criteria. I thank you for recognizing that the Senate amended what is now the compensation act to ensure that there would be criteria.

When I read the report and responses to the report I noticed that the government originally proposed an increase of 5.6 per cent or 5.7 per cent. The recommendation of the judges was in the vicinity of 26 per cent. In other words, the step was very high. It seemed to me that if there is a need for criteria, this would be a clear illustration of that need. When there is a fraction of difference, we can always argue about a comma or a period, but when the gap is that wide, it means that there are two very different ways of seeing the same issue.

When the government made the proposal of a 5 per cent increase, which of the criteria did the government have in mind that seems not to have been taken into account by the other proposal that came to 26 per cent? Why is there so much of a gap?

Ms McLellan: I cannot comment on why the judiciary made the proposal it made. It would be singularly inappropriate for me to do so. The commission has evaluated both proposals and reached a figure that we ultimately thought was fair and acceptable to us. Hence we have Bill C-12.

In terms of our proposal, we felt that it was fair. We felt that it reflected the importance of financial security and provided sufficient financial security to the judges. We felt that it was sufficient to attract outstanding candidates, to look at some of the criteria that are set out here. Overall, we thought it reflected, in the larger Canadian context, a fair approach.

As you have indicated, we have a commission that assesses these things. The judges had quite different views in terms of some of these issues and that is their right. That is why we have a commission. The commission looks at those criterion and other things and brings into play whatever expert evidence it wants in terms of pensions and compensation packages, the private sector versus the public sector and so on, all within the context of maintaining the important principle of the independence of the judiciary. It reached its result. Obviously we, as the government, respect that - otherwise we would not have brought forward what we have in the form of Bill C-12.

I cannot comment on why the judges made their submission.

The Chairman: I will just tell everyone that we will be having the members of commission before us.

Ms McLellan: They would be able to provide you with their assessment.

Senator Joyal: I understand that the department has taken the initiative of developing a database on the salaries or professional fees that average lawyers, in various regions of Canada, in different types of law that are practised in this country, to ensure that the salaries of judges are, to a point, a reflection of the scales of salaries, of compensation in law firms. Where is the department on that? What kind of progress have you made on this point? A fundamental element is to establish the scale. After that, you can always discuss the indexed cost of living increase and that sort of thing. Fundamentally, there is no doubt that the salaries and compensation of judges must take that into account.

Ms McLellan: That was one of the things the commission talked about. In the quadrennial report, you will notice that it calls upon us to do more research, which I think is very important. We have committed to do that research. Part of it is to try to get a better handle on private sector salaries which, interestingly, is not easy information to collect because, as you have identified yourself, senator, there are many variables.

We want to collect as much data as possible and provide it to the commission to determine if it meets their purposes or if more data is needed. In collecting the data, we want to check with law societies and others to ensure that we are being fair in the kind of data that we are collecting.

The commission itself has flagged that the entire notion of average private sector salary for a lawyer is a problematic one. Probably at that level of generality, one might question how useful that data is.

One must consider an average salary for a big law firm in Toronto as opposed to a boutique law firm, as well as average salaries in Edmonton and Vegreville. We have to do a lot of work. We have just begun, in terms of obtaining this type of information. It is very important.

As you know, senator, some suggest that those who are the most experienced, at the very top of their profession, sometimes will not put their names forward because the financial sacrifice is too great. We have a certain view on that, as a government, but we must ensure that we have information, which the commission can use and which is acceptable to us and others, in terms of helping the commission inform any future decisions it makes around what is reasonable compensation.

Senator Joyal: I take it that your system for this has not been developed thus far.

Ms McLellan: No, we are just beginning this. The quadrennial commission, as I said, rightly pointed out that greater information and more research needed to be done. This is not without its difficulties, as the law societies and others will tell you, in terms of what you are actually getting at and how you pull it together so that it makes reasonable comparisons and help inform the bench.

Another issue that you may have noticed that the commission talks about is how one quantifies quality-of-life issues. This is something that subsequent commissions will want to review. They will want to compare quality-of-life issues, the benefits and otherwise of the members of the federal judiciary in comparison with the benefits and quality-of-life issues around, for example, being a senior member of the bar, which are quite considerable. These are also important issues that the commission has identified in terms of our need for more information.

Senator Grafstein: I wish to commend the minister on the excellent balance she has struck in accepting the recommendations of the commission. I think they are fair. I think they do support the essence of the bill, which is the economic viability, independence and health of the judiciary. I think you have struck an appropriate balance. I am confident that there will be very strong, if not overwhelming support for the measures in the bill.

You and I, minister, have disagreed about the role of the judiciary from time to time, in particular in terms of how we should designate the judiciary, what we see as the role of parliamentary supremacy, what words we use and how judges should exercise judicial restraint. That is for another time.

I will ask you only one short question. It has come to my attention in recent years that a number of very capable counsel who, when they reach the age of 60 in their law firms, move toward retirement. They are still capable and intelligent. They have a huge amount of experience but, because of the limitations of age, it means that a whole resource, on a very cost-effective basis, is lost to the community. Has the minister given any consideration to examining the appointment process so that people over 60 years of age can be appointed? I think that is a cost-effective way of tapping into this huge repository of legal experience.

Ms McLellan: There are certainly no limitations on the ability of anyone to make application to the judicial selection committees. I have appointed people over the age of 60 to benches in this country. Your point is a good one in that, clearly, those of that age generally have been practising law for a significant period of time. The very best of them have built up a wealth of experience. If they are the very best in that class, they have a temperament and a perspective and a sense of what it is to be a professional. They have a sense of how one treats one's colleagues. As well, they have respect for the institutions of governance, including the judiciary. I think those are all characteristics that would serve any court well.

There is absolutely no limitation on the basis of age in terms of people deciding to apply for consideration. In fact, if you look at the recommendations coming from judicial selection committees, you will see that they cover a wide range of ages. I can assure you and reassure you that certainly includes those over the age of 60.

Senator Cools: I think the minister knows that I feel a great attachment to the traditional Liberal position in respect of judges. For example, most members here will know that when we were in opposition and adopted the position we did on NAFTA, which was Mr. Mulroney's initiative, one of the questions that Senator MacEachen stood very firmly on was the use of judges on the dispute panels. Senator MacEachen and Liberals at the time felt that such a release of Canadian judges to the dispute panels was certainly a deviation from the Judges Act.

When you say judicial independence and when I say judicial independence, I think we mean different things. One of the problems I have in today's community is that I get the impression that the term "judicial independence" is being misapplied. The term is being misapplied to cover or to do much that is really alien to the Constitution and, to my mind, to the Liberal Party's tradition, with regard to the question of judges.

The question of judges has always been an important political question. The question of judges has never been a judicial question; it has always been a political question , just as the question of judges' salaries should never be a judicial question. The question of judges' salaries and their mode of payment is always a profoundly political question in any nation.

That is why the Judges Act has the history that it has. It was intended to protect judges from corruption and bribery and a host of other evils. I am sure that you know quite a bit about what I think, so I will not repeat it.

My question to you is twofold. Senator Andreychuk raised questions about judges' international activities. Your response was to tell us that Canadian judges are well respected all over the world and are bringing the rule of law to those nations.

It was always my understanding that the phenomenon of bringing the rule of law to nations that do not have it or that lack it was a political matter. When I was growing up, we called it "colonialism." The British called it the pax Britannica. That is a political role. Taking the rule of law to other nations, particularly developing nations, is a political role, not a judicial one.

Could the minister tell us what authority in the Judges Act can be relied upon for the current involvement of judges around the world?

Ms McLellan: First, let me say that I did not say that Canadian judges bring the rule of law to other countries. We do not bring the rule of law to another country. What we do is help people to understand, from our point of view, what the components of the rule of law are and how we have developed institutions and processes to respect and protect that. It is then up to the any other country, people or culture to decide whether they accept the rule of law, our definition of it, and some or all of the institutional and other mechanisms that we have put in place to respect it.

However, as far as I am concerned, the independence of the judiciary is clearly a key component in our development of a culture that respects the rule of law. It is hard to respect the rule of law in a country where one believes that judges apply the law on the basis of bribery or fear of physical intimidation or other kinds of things.

I believe that our judges and politicians have different roles. When the Prime Minister went to China and spoke as he did most recently, very eloquently, about the importance of the rule of law, he did so as the Prime Minister, as a politician and as someone who is committed to that value.

When the Chief Justice of Canada goes to China and speaks about the rule of law, she, too, is committed to that value. I would hope that we all are. However, in terms of the kinds of dialogue - and I know, senator, you do not like that word in other contexts - but in terms of the dialogue that a judge from our country has with his or her counterparts in another country, the focus is upon those things that are unique and inherent to the role of the judge and the task of judging.

Therefore, I do not see that as big "P" political in the way that one would expect our Prime Minister or the leader of another country to perhaps talk about those things.

For me, the key role of the judge in modern Canada - and the world - is to sit in fair and impartial judgment on disputes and cases in this country. However, judges have a larger obligation to help, where called upon, to assist those who are trying desperately to create functioning and stable democracies. They take their role seriously. It is a limited one. I have not met a judge in this country who participates in these kinds of activities who does not understand that role. When judges work with members of the judiciary to deal with these issues, it is different than, for example, my role would be if I went to talk to elected or appointed officials in China, or wherever, in terms of the underpinnings of the democratic state.

Having said that, we all share values and it is important that we do our part in helping people to understand those values and the basis for those values.

Sections 56 and 57 are not explicit, but do signal the fact that judges may be called upon to do things over and above their duties, to sit in judgment on whatever court to which they are appointed.

Senator Cools: Minister, I was hoping that you would have focused on the Judges Act. I know you want to share with us your enthusiasm for many of these activities. My concerns involve the statutory questions around judges' international activities.

I know those two sections that you have just cited quite well. There is no authority in those two sections or in any other sections of the Judges Act that permits or authorizes judges to go about the world doing whatever they are doing. You have just said that those two sections are ambiguous. You said that a few moments ago. You suggested that they were unclear.

Ms McLellan: What I said was they contemplate judges doing things over and above sitting on the court to which they are appointed and adjudicating on disputes between either two individuals or an individual and a level of government.

Senator Cools: That is not quite true, minister. It is not quite sufficient.

The cluster of sections, from section 54 through to about section 60, are explicitly intended to keep judges attendant to the judicial function, which is adjudicating disputes. The only exceptions to that are contained in those sections and they do not include international activities.

In particular, the reason those sections came into existence is that many ministers years ago used to use judges a little more freely, in respect of commissions, to do other tasks. What the Judges Act has sought to do, since 1906, is to narrow judges' activities to nothing other than the judicial function.

Ms McLellan: That is not true, I am sorry.

Senator Cools: That has been the purpose. That was the origin of the Judges Act. That was one of the reasons. The Judges Act, minister, was brought about as a comprehensive act for two reasons, which were to fulfil that section of the BNA Act in respect of fixing and providing salaries and to begin to limit judges' activities in politics or in anything that could even be vaguely considered as politics. Those were the purposes. The debates are there. You do not have to take my word for it, you can go to the text.

The fact is the Judges Act was always intended to be an act of domestic application. I have researched this carefully. The Judges Act was intended to be for domestic application.

Ms McLellan: I do not understand how that in any way speaks to a judge being authorized by his or her Chief Justice to carry out an education program in another country.

Senator Cools: I am not saying that that should not happen. I am not saying that is not a desirable thing. I am saying that the proper statutory framework should be obtained if that is what is required or is wanted. That is a matter that should come before Parliament and should be debated.

Let us understand at all times that we are not speaking to the substantive issues here and that most of the time I speak to process.

I am quite sure we did this in the instance of the Madam Justice Arbour amendment - and that is exactly what it was called, the Arbour amendment. Parliament, at that time, made the sole exception and explicitly said so at the time. It is not adequate that anyone can sit at this table and say it is not so. This matter was canvassed as recently as 1996. The sole exception at the time was agreed to as Madam Justice Arbour and she was named. My recollection is that she was named in the bill.

I am not saying, on the substantive question, that judges should not be doing these things. That is a different question. The fact of the matter is there is no authority to do it in the Judges Act.

It gets complicated when one understands that money is moving. Expenses are being paid to take judges across the world. This money, from what little we have been able to understand - it seems to be a big secret and we cannot get our hands on the information - moves, apparently, from CIDA to the Commissioner for Federal Judicial Affairs. It becomes even stranger because CIDA does not operate by virtue of a statutory authority. CIDA's constitution is based on an Order in Council. What I am trying to say, minister, is that if one takes these kinds of initiatives, we should ensure they stay within the proper constitutional framework of the country, which is that the protection and superintendence of judges falls within Parliament. I want you to know many Liberals fought and died for these principles.

When I make these kinds of statements people look at me as though I were speaking Greek. Perhaps our Parliament should be engaged in the entire question of judges' international activities. There is a significant amount on the record, minister. I have quotations. I have read interviews with the Chief Justice where he said it was dicey. There is much on the record. From what we have been able to glean and from what the Commissioner for Federal Judicial Affairs has told us, the idea of judges' international action was a judicial idea. Apparently, it originated with Mr. Justice Antonio Lamer. We should discuss it and have a dialogue about it.

Ms McLellan: I want to clarify the record in terms of Madam Justice Louise Arbour. The provision was necessary in the Judges Act because she was not serving in a judicial capacity. She was a prosecutor. The judicial role does not anticipate a judge serving as a prosecutor. Therefore, the act was clearly amended to provide her with the opportunity to act as prosecutor, which falls outside the role as defined for a member of the judiciary. That is what that section did.

Senator Cools: No.

Ms McLellan: She is stepping outside the judicial role.

Senator Cools: With all due respect.

The Chairman: You will have your chance, Senator Cools.

Senator Cools: It is not an answer.

The Chairman: Senator Cools, we will allow the minister to finish her remarks, and then you can have your say.

Ms McLellan: The section is quite clear that it authorizes her to take a leave from her judicial duties to serve as a prosecutor. That is why the section was required. She was stepping outside her role as a judge. It was decided by Parliament that it was reasonable in the circumstances to authorize her to take that unpaid leave from her role as a judge to be a prosecutor outside this country.

Senator Cools: That is not what happened.

Ms McLellan: That is all that section 56.1 does.

I would argue that, as part of the judicial function, judges have the right to educate both themselves and others in this country, to help with the education process towards an understanding of the judicial function and the requirements for carrying it out effectively in other countries. It is part of the judicial function.

If we do not include that in the definition, it is a restrained, attenuated and arid definition of the role of judges in the modern world, where our expectations of what judges do in terms of helping all of us, even here at home, to understand the nature of the judiciary, its importance and what it does in resolving disputes. It goes well beyond simply sitting on a bench.

The Chairman: If I may interject here, reading from section 56.1 of the Judges Act which agrees with my recollection of our debates around this table at the time:

Madam Justice Louise Arbour of the Ontario Court of Appeal is authorized to take a leave from her judicial duties to serve as Prosecutor...

...of the international tribunal.


Senator Cools: That is quite true, but what you are reading, with all due respect, honourable senator, is the amendment that was put in in the Senate. That is what you are reading. It would be nice if we knew our own history. What was brought before the Senate was a bill with broad application to all judges. What you are reading was what was moved in the Senate as an amendment limiting it solely and singularly to Louise Arbour. In other words, the Senate said clearly that the only person who could do it was Louise Arbour.

Ms McLellan: That is to act as a prosecutor.

Senator Cools: It was more than that. The bill came to us asking for the authority for all judges. A point of order was raised about whether it was a public or private bill. What happened after that was Senator Nolin moved an amendment, Senator Nolin withdrew his amendment and then this other amendment was put on the record.

I find myself often in the position of having to prove what everyone should know. The fact is what was asked for in the original Bill C-42 was a wide authority for all judges to be able to be released from duty to go abroad to work for international organizations. What happened in that instance was that Parliament said no and confined it solely to Louise Arbour, who, in the most extraordinary set of circumstances, was named personally in the bill, and her name still remains in the act.

The Chairman: I would remind us around the table that it is a section that is referred to in the bill, and I believe Senator Nolin has something to say since he moved the amendment.

Senator Cools: He did not move this amendment.

Senator Nolin: This involves the independence of the judiciary and that is why we were very concerned about it. The question raised by my colleague is valid.

I agree with you, minister. If it is included in the mandate as being a member of the judiciary, let us discuss that and let us amend properly. We want to protect them. I am preoccupied by even mentioning the name of a judge here. We should have a debate about it. We do not have the time to do that with you, but we should have that debate properly and look at the meaning of section 55 of the act. Let us do that. That was the intent of the bill at that time. We have narrowed it to one person for a specific situation and we closed the bill to ensure that the judiciary would be properly protected. It was not proper to do that at that point. Let us re-open that debate.

I am aware that the judges in China, under the direction of Doyen Fremont of the University of Montreal, are doing very good work. Is that what we want our judges to do?

Senator Cools: That is a public debate.

Senator Nolin: I have more specific questions on the bill.

The Chairman: Honourable senators are quite right. That should be the public debate, but it is not part of the bill. If I may bring us back to this bill, Senator Cools, I will put you down on the second list.

Senator Nolin: I have two questions. I do not want to get into the mathematics on how the bill was drafted to add up all the increases in salary. I know in the Territories they are not called chief justices; they are called "juge principal." Why are they not paid as chief justices? They are paid as puisne judges.

It is a smaller court and there are not big numbers of judges, but why do we not pay them the same salary as chief justices? I am not referring to the Chief Justice of the Supreme Court, but to other chief justices in the system.

The Chairman: In the appendix at the back of our legislative summaries, Senator Nolin, it is somewhere differentiated. It is in the appendix, Salary of Federally Appointed Judges, section 1 of the Library of Parliament legislative summary.

Ms McLellan: Senator, Ms Karen Cuddy from my department will attempt to answer your question.

Ms Karen Cuddy, Counsel, Judicial Affairs Unit, Department of Justice: The chief judges of the territories do not have the formal designation of chief justice. The role is not recognized as a chief justice per se. There is actually no authority to provide them with a salary at the level of a chief justice until they are designated as chief justices.

Senator Nolin: Let me give you an example of why they are treated differently. Your amendment in Bill C-12 which deals with "frais de représentation," seems a little preoccupied, but I agree they should have that. The so-called chief justices of the Court of Appeal in the Territories are getting the $10,000. I do not want to question "frais de représentation." I want to address the fact that they are principal judges. They do not have the title of chief justice, but they are in charge of the courts. It is not a fundamental question or problem. I will support the bill, but we should maybe examine the difference.

Ms McLellan: As Ms Cuddy indicated, they are getting the $10,000. We have not given them the designation, yet they represent their courts in the same way that chief justices do. For example, they are on the Judicial Council.

Senator Nolin: They do not have the designation. They have the role, but because they do not have the designation, they do not have the salary. That was my point. I am trying to be fair to them. That is why I raise the issue.

Also, I know that you want to have a full review of the whole pension system. I think that is needed. You have introduced an insurance scheme in this bill. That is fine. Why are you introducing a pension element in Bill C-12? Why not wait for the review? There are major things being introduced in the proportional pension.


A proportional pension, early retirement and multiple pensions, such as were not previously allowed under sections 43 and 44, will now be possible. There is a whole series of provisions concerning the survivor's annuity. A decrease in the contribution is, surely, a major change. Certain judges will no longer be paying 7 per cent but only 1 per cent.

I understand that the commission spoke of it at length. If we are to do a comprehensive review of judges' superannuation, why not wait for the results of all that thinking? And then review the superannuation system? Why proceed bit by bit like this?


Ms McLellan: I certainly understand the point. We have agreed, in line with the commission, that there will be a major review of the entire pension plan. We were acting on the recommendation of the commission because it felt, even in calling for the review of all the pension provisions, that there were things that, in fairness, we should move on immediately. Those things will become part of the overall review, absolutely.

We looked at things like the prorated annuity. I think the commission was right to say that the lack of any early retirement consideration was inflexible and unfair. I would hope that we all agree with that.

Could we wait two or three years to deal with that? Yes, except that we are probably disadvantaging some judges in that two-year or three-year period who could take advantage of what we are doing if Bill C-12 is passed. The commission has said that it thinks this is unfair and that we should fix it now, but it will all become part of the overall review.

We accepted that. We asked whether we should accept these or wait. These items, we felt, were sufficiently discrete and sufficiently unfair - as with reducing contributions - that they should be made consistent with other public service plans, such as the federal public service plan and the change from 7 per cent to 1 per cent.

These are discrete issues that impact on pension benefits, but we felt, out of fairness, we would accept the commission's recommendations to move now. It recognized this and recommended that we move now in spite of the upcoming review.

Senator Nolin: The work done by the commission is very professional. I hope parliamentarians will get the same kind of consideration and quality of work.

Ms McLellan: You will have to talk to my colleague, the Government House Leader, about that.

Senator Nolin: I am not referring to the level of salaries. I am referring to the quality of work.

Senator Moore: I wish to commend you, minister, for the action you took with respect to Recommendation No. 8, dealing with the supernumerary judges. That has been a growing area of concern and - I will not say of abuse, but I am glad that you looked at it closely and that you did not accept the recommenda tion of the commission. Thank you for that.

Ms McLellan: This was flagged by provincial attorneys general, as you might imagine. They are charged with the constitutional responsibility for the administration of the courts. We have a subcommittee co-chaired by the attorneys general of New Brunswick and Alberta who have taken up the task of researching this area and coming forward to our federal- provincial-territorial meeting with recommendations regarding supernumerary judges.

Senator Grafstein: On this point, minister, I have heard that there are a number of vacancies at this moment that cause a higher burden on the other judges. We must get on to our business of making appointments much more promptly. Do you have a view on how quickly you can fill those judicial appointments? I understand in some of the regions the vacancies are quite extensive.

Ms McLellan: It varies from jurisdiction to jurisdiction. We go through a lengthy consultation process. We want to ensure that we are discussing fully the list of recommended candidates with chief justices. We want to know their needs and how best to meet those needs with the judicial complement. Sometimes that takes longer than it should. I have certainly indicated to the chief justices when they raised this at Judicial Council that we will redouble our efforts to ensure that court vacancies are filled as quickly as possible.

Senator Grafstein: Thank you for that assurance.

Senator Cools: I am not satisfied with many things, but I am encouraged by what Senator Nolin said. I take from this an indication of interest that these matters are of pressing parliamentary importance and that they should come forward for debate.

The Judges Act is currently in effect and in force. Minister, would you be agreeable or friendly, for example, to this committee examining those sections of the Judges Act? I am trying to build on the exchange. It is clear from this committee and from this committee's work in the last few years that there is some concern. We may not agree on the solutions, but that is not a problem to me. Parliamentary debate and parliamentary con clusion is needed in Canada on the entire question of judges' international activities. Do you have a response to that, minister?

Ms McLellan: It is not for me to determine what you, as a committee, choose to take up. If you were to look at this issue, I would receive with interest any work and recommendations that you brought forward.

Senator Cools: I was seeking your input as to whether you thought that kind of activity would be useful and necessary. One cannot open up a newspaper, on any day of the week in this country, at any time, without reading about judges saying this or judges saying that or judges travelling here or there.

I view myself as a soldier of Parliament and I am prepared to live with any conclusion after debate has taken place. Debate is critical, particularly in that we are now moving internationally. I think the word they use is "globalization." Governments, by executive authority, are committing parliaments and nations and citizens to massive numbers of initiatives that never come before Parliament. I happen to think that we live in an era where reliance on the Royal Prerogative for major initiatives of government is no longer acceptable. When I say Royal Prerogative, I mean orders in council, CIDA and so on. At some point in time, these matters must come to debate.

There is another matter, minister, to which you could perhaps respond. There is a new role that has come before the public and judges again are front and central to it. I refer to the judges' publicists, the judges' propagandists and the judges through the Judicial Council -

The Chairman: Senator Cools, we are dealing with Bill C-12. The time that the minister has to spend with us is now over.

I would wrap up by pointing out to the minister that some very valid points have been raised by Senator Cools and Senator Nolin. These matters are outside the scope of this bill, but I would hope that your department will be looking at them.

I thank you for coming before us today.

Ms McLellan: It is always a pleasure to be here. I would be more than interested in considering any thoughts or recommendations you might have on the issues discussed here which are outside the scope of this legislation.

Senator Beaudoin: I am interested by the question that Senator Cools raises, even though it is not in this bill -

Senator Cools: It is because the judges have -

Senator Beaudoin: Please let me say one word, for goodness' sake.

I agree that we should discuss this problem and it is very important. I remember quite well making the amendment in the Senate. We should come back to that.

The Chairman: Thank you, minister.

The committee adjourned.