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.
SenatorLorna 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
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
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 hocadvisory 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
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
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
In conclusion, Canada is fortunate to have a judiciary renowned
internationally for its competence, commitment, independence
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
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
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
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
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
Senator Andreychuk: I refer not to the selection, but to the
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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'
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.