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Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs

Issue 7 - Evidence, May 17, 2001

OTTAWA, Thursday, May 17, 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 10:55 a.m. to give consideration to the bill.

Senator Lorna Milne (Chairman) in the Chair.


The Chairman: Honourable senators, I see a quorum. We are met this morning to give clause-by-clause consideration to Bill C-12, an act to amend the Judges Act and to amend another act in consequence.

Does any senator want any of the clauses separated out before we begin, or should we do them en masse?

Senator Cools: Let us do them in clusters.

The Chairman: We shall do clauses 1 to 16, salaries and then clauses 17 to 27, pensions.

Honourable senators, shall the title stand postponed?

Hon. Senators: Agreed.

The Chairman: It is agreed.

Shall clauses 1 to 16, inclusive, carry?

Hon. Senators: Agreed.

The Chairman: It is agreed.

Shall clauses 17 to 27 carry?

Senator Moore: I would like to go back to what we discussed yesterday with the people from the commission.

I am concerned about the words "representatives of the judiciary participating in an inquiry." I think that should say "legal counsel."

The Chairman: To what clause are you referring?

Senator Moore: I refer to clause 18, which refers to proposed subsections 26.3(1), (2) and (3). The word "representatives" is pretty loose. It is not very definitive. I do not know how far it goes. In view of the other thing that slipped by us, which we discussed yesterday -

The Chairman: We will go in camera on that later.

Senator Moore: This is another cutesy little thing.

The Chairman: Senator Moore, if we were to amend this, as you are well aware, it would have to go back to the House of Commons and be passed again, which might cause some timing problems.

Senator Cools: I understand Senator Moore's point and I have sympathy for it. However, I am also mindful that this is scripted the way it is for certain reasons, which relate to the points that I raised last night about the charges against the Consolidated Revenue Fund. Putting into a clause of a bill that a legal representative can be financed out of the Consolidated Revenue Fund is a tremendous departure from the judges acts of the last 100 years. This is something that we should approach with enormous consideration. The intention of the Judges Act is not to charge payments for other persons, in particular legal counsel, against the Consolidated Revenue Fund. There are a whole set of constitutional issues, which are not immediately apparent, contained in that clause. I do not know quite how we should proceed on it, but this is why I am hesitant to amend it. I would like it changed.

The Chairman: We have officials here who are prepared to speak to this matter. With the consent of the committee, perhaps we could have the officials come to the table to clarify this for Senator Moore.

Senator Moore: Is Senator Cools suggesting that we take out that clause?

Senator Cools: If the committee is strapped for time in terms of the consequences of going back -

The Chairman: Any change whatsoever has to go back to the House of Commons.

Senator Cools: If it goes back to the House of Commons it would not be such a terrible thing. This is not a controversial issue anyway. This is not anything that people there will feel a pressing need speak to. I have seen bills taken back to the House which were out a day or two later.

Senator Beaudoin: Why do we not hear from the experts?

The Chairman: I would ask officials from the department to join us at the table, please. With us, from the Department of Justice, is Judith Bellis of the Judicial Affairs Unit.

Ms Judith Bellis, Senior Counsel, Judicial Affairs Unit, Department of Justice: Madam Chairman, perhaps I could just make a couple of points that may assist senators with their concerns.

Senator Moore asked the commissioner yesterday whether there had been members of the public who had been represented before the commission. I believe he indicated to you that while there had not been members of the public, there were representatives other than from the Canadian Judicial Council and the Canadian Judges Conference.

Senator Moore: Someone else asked that question.

Ms Bellis: I am sorry.

The term "representative" rather than "legal representative" would provide for the possibility of a judge appearing before the commission to make submissions on behalf of a group of judges, for example. Justice Lambert appeared before the commission to represent a position with respect to appellate court judges. He also spoke to the issue of reduction of contributions with respect to pensions. The thought was that such a person who made a contribution to the commission that was of benefit to the commission process and who had essentially paid his or her own disbursements, such as travel to Ottawa from Vancouver in the case of Justice Lambert, that was the kind of cost for which the commission might wish to allow recovery. These are essentially disbursement costs.

The commission is the body that will determine which representatives have made a contribution to the commission process. Clearly, a judge like Judge Lambert would not expect to recover anything other than his out-of-pocket expenses.

It was with that kind of example in mind that the drafters were instructed. Yesterday, we heard the point about actuaries, for example, playing an important part in the proposals that would be brought to the commission. I think it would be highly unlikely that an actuary would be presented as the specific representative. Rather, as in the case of this first quadrennial commission, Mr. Fortier, the representative of the Canadian Judicial Council and the Canadian Judges Conference in combination, retained actuaries to advise him and the judiciary with respect to their position. Those actuarial costs would be a disbursement in the bill that Mr. Fortier would present under this scheme and which would be taxed. We could give other examples. In that case, it would be for the prothonotary of the Federal Court to address the issues.

I do not remember which senator asked the question: What about public relations experts? The notion of solicitor-client costs and what is within the envelope and what is without the envelope for purposes of legal proceedings is quite well developed before the Federal Court. In that case it would be the prothonotary who would determine whether the disbursement that was being claimed in the context of solicitor-client costs was within the terms of the generally accepted notion of legal costs. That is an explanation with respect to representatives.

On another matter, I remind senators, as they well know, it is the commission that will make a determination as to which representative is entitled to recovery. I think in that context they would make those kinds of assessments themselves.

Senator Banks: Thank you for that explanation but we must recognize that the proposed section 26.3 does not say that these representatives "shall be paid." It says they "may be paid." Thus, there is discretion left to the commission. Many years hence we may not be dealing with a commission which is as demonstrably prudent as the present one. There is that discretion. Theoretically, to use one far-fetched example and one that is not, an actuary, a public relations person, an estate planner, an astrologer or an accountant might, at some future time, be determined at the discretion of the commission to be bona fide representatives in the sense that is meant in proposed subsections 26.3(1), (2), (3) and (4). The commission by itself, without further recourse to anyone, would be determining a charge upon the Consolidated Revenue Fund, as opposed to a payment as a result of government policy or a payment from the budget of the department that administers this. That is quite a different thing.

Are those suppositions which I have just made correct?

Ms Bellis: It is possible, as you say, that in the future some commission may identify someone other than a legally trained person to be a representative. Certainly, if the commission were to exercise its discretion in that way, the government would be a party before the commission and able to speak to that issue and could take a position with respect to that. Such a position would likely have to be sufficiently formally constructed as to be not just a position but a potential proposal for amendment of the Judges Act in light of that, because, as you know, any amendment to the commission process as well as compensation matters would have to be proposed to the commission.

However, if the commission went off the rails and the government felt that it was inappropriate for that commission, I would say the government and Parliament would have to accept that, but if it was clearly a serious problem, the option would be to amend it when that next set of amendments came through in response to the commission's recommendation. The first point of response would be in the government's response, which, as you know, is required six months following.

I am using too many words. My answer is that if it turned out to be a serious problem and we had a rogue commission, the government could propose amendments in the next round. This is, as with the rest of the quadrennial commission process, fairly new. We are feeling our way, to some degree.

Senator Banks: Since we are, would it not be prudent to do the reverse, to put the restrictions in place now and see later whether they ought to be relaxed? If we are treading new ground, it seems to me we ought to err on the side of prudence rather than profligacy.

Ms Bellis: I again have in mind what senators might also agree would be legitimate representatives who are not lawyers and would not be characterized as legal representatives, the example being Justice Lambert in the circumstances of which I spoke.

Senator Banks: I agree that the circumstances that are set out in the act now include Justice Lambert, but they do not preclude all of the other things to which I referred earlier.

I agree with Senator Moore that I do not want to get in the way of this. I am not sure what the urgency attached to this is, but it is breaking new ground.

Senator Cools: Clause 18 is breaking a lot of new ground and we should proceed very cautiously.

To follow up on the questions of Senator Banks and Senator Moore, the clause we are considering speaks of representatives of the judiciary. I am looking at appendix 3 of the May 31, 2000 report of the commission. I see a list of participants at the hearing. I gather these are the people who appeared and presented before the commission.

Ms Bellis: That is right. The commission invited any person who wished to appear to make submissions to do so.

Senator Cools: Does the commission, in general, subsidize these individuals' expenses to appear before them? I wonder why the clause is necessary. Does the commission have the budgetary means to bring before it what we call witnesses and what it refers to as participants? For example, I see the names of Madam Justice Alice Desjardins and Mr. Justice Michel Robert as people who appeared before the commission. Who paid their expenses?

Ms Bellis: They paid their own expenses.

Senator Cools: Therefore, this particular clause is attempting to charge against the Consolidated Revenue Fund payments for people to represent the judiciary only.

Ms Bellis: That is correct. If we step back, the government is, in this clause, responding to the recommendation of the commission.

Senator Cools: I am aware of that. I am just wondering about the constitutional propriety of proceeding in this way, in terms of respecting the proper relations between the judiciary and Parliament.

Ms Bellis: The commission's recommendation was based on its assessment that the judiciary's involvement in the commission was necessary and important.

Senator Cools: I find it very interesting that Parliament's interest is not looked after. When I say Parliament's interest, I mean the representative interests of the public. Looking at the list of participants, there really is a total absence of the public interest. The list of participants here is not numbered so it would be difficult to run through and count them, but it really reads like an in-house situation.

Ms Bellis: It is true, Senator Cools, that there was not a huge interest shown by members of the public in the proceedings of the commission, but the hearings were advertised widely in all the major journals. There were initial calls for submissions. There were ongoing notices in the newspapers with respect to the public hearings in both cases. As in the past when previous commissions have also used this approach, there has not been a major expression of interest in the work of the commission.

Senator Cools: What is also very bothersome in this proposed section is that there is no ceiling on the amount. What you have here is a blank cheque.

The Chairman: The commission, I believe, recommended a ceiling.

Senator Cools: It recommended a ceiling for legal fees, but what Ms Bellis has described is the capacity to be expanded infinitely, especially if the term "representative" remains as vague as it is.

Senator Moore: I think it is capped in the sense that it is one-half of the costs as determined under proposed subsection 26.3(3) by the prothonotary of the Federal Court.

I have been thinking about what Senator Cools is saying about the demand upon the Consolidated Revenue Fund. It is pretty wide open. To my way of thinking, maybe it is done that way to demonstrate, in a practical sense, the independence of the judiciary from any department or political influence. I do not know. It is unusual. That is the only justification I can think of. If that is the case, fine.

The Chairman: I would point out there is a certain limit on the scope because the costs are limited to those approved under proposed subsection 26.3(3), which is that a prothonotary of the Federal Court shall determine the amount. It is under the Federal Court rules.

Senator Moore: The commission, under proposed subsection 26.3(1), may identify representatives and those it identifies "shall be paid." The commission has the discretion to determine which representative will be paid. Mr. Drouin thought it was to be on legal matters only, but we hear today it could be more than that.

Senator Cools: It is not at all. The commission may identify those representatives. In other words, they can say there are 2, 3, 10 or 1,000. Those sections are wide open and that is a novel thing. We should examine that.

The Chairman: I believe the witness said there is a body of law that clearly defines the scope of this section, did she not?

Ms Bellis: No. It defines what would be included in terms of solicitor-client costs as far as disbursements are concerned.

Senator Joyal: I want to put on the record Recommendation No. 22 of the report which deals specifically with the capping of fees. I will read it in French, since I have my French version. It is recommendation 22 on page 111 of the English version.


The Commission recommends that the Government pay 80 per cent of the total representational costs of the Conference and Council incurred in connection with their participation in the process of this inquiry as of May 31, 2000, such payment by the Government not to exceed the aggregate amount of $ 230,000, inclusive of the amount of $ 80,000 already contributed by the Government as of the date of this report and any extraordinary and explicitly identifi able increase to the budget of the Council in order to fund the participation of the Judiciary in the work of this Commission, and that the remainder of such costs be paid by the Conference and Council in such proportion as they deem appropriate.

In other words, the commission clearly recommended an amount, and they left it with the conference and the council to absorb any additional expenses they might deem appropriate in order to base their position.

Obviously, section 26.3 is much more general. It does not bind the commission to any specific amount. The commission may at its discretion decide if it will be 80 per cent, 90 per cent or 100 per cent. Under section 26.3 as it is drafted now, there is no limit in that respect. That's the way I read it in terms of recommendation 22.


Am I right on this?

Ms Bellis: With your indulgence, Senator Joyal, I will respond in English. It might be more understandable.

In fact, the commission's recommendation was to have the entire costs of the judiciary paid. That is because the total cost of the bill that was rendered at the time was $230,000 and $80,000 had already been paid. The government was of the view that to follow the paradigm of the commission's recommendation would be to give the representatives of the judiciary a blank cheque without any cap. The rationale for imposing the 50 per cent rule was to acknowledge that the participation of the judiciary in this process is useful and necessary as a policy matter, but in order to ensure the probity of the judiciary's own expenses a shared 50/50 contribution was fair, reasonable and would create internal economies in the judges' own organizations.

The Chairman: How often is 50 per cent granted? Do they ever get the total amount for which they ask?

Ms Bellis: Because this formula will apply to the first bill of costs. It will be taxed in terms of the established paradigms. The result will be 50 per cent of that number. If you like, the reduction will be in terms of not the 50 per cent, but the fact that the prothonotary has determined that certain travel costs were excessive or that a public media consultant does not qualify for solicitor-client costs. When the prothonotary determines the amount, it will be 50 per cent of that amount.

With your indulgence, Madam Chair, since I know the senators are interested - and rightly so - in the issue of the Consolidated Revenue Fund, I wish to point out that the Crown Liability and Proceedings Act was the starting point for our crafting of the provision with respect to that aspect.

I will read the provision and then perhaps I can just explain the modification that happens here. It states:

On receipt of a certificate of judgment against the Crown issued pursuant to the regulations, the Minister of Finance shall authorize the payment out of the Consolidated Revenue Fund of any money awarded by the judgment to any person against the Crown.

The next question which comes to the minds of senators is: Why have you changed this well-established and well-understood rule? The rationale that we used was that the objective throughout this process in support of judicial independence was to reduce to a minimum any appearance of discretion or control by the executive. Therefore, we felt that even though the language says the Minister of Finance shall authorize, with an additional step which we thought was not particularly meaningful since it is clear the Minister of Finance would have no discretion in that regard, it would remove the appearance that there was some further action by the executive involved in this matter. That was our thinking with respect to the CRF.

Senator Beaudoin: There is one thing that is of great importance to me. It is the French and English version of proposed section 26.3. In English it states, "may identify." We all know that "may" is permissive and "shall" is imperative, but we have many cases where the word "may" can be mandatory.

If you read the French version, it is actually the contrary.


In French, it says "La Commission identifie les représentants [...]"


This is not permissive, it is active. Thus, we have to interpret that it is an obligation. It is a very clear-cut obligation. I would like to know what you think about that. To me, legally speaking, it is 100 per cent imperative.

Senator Joyal: The first thing to be done is to identify who will be the representative.

Senator Beaudoin: That is right. I do not know what the consequences are but I would like to know how you interpret this because it has been raised here before.

Ms Bellis: That is a very good point, Senator Beaudoin. I could say that, again, the commission's recommendation contemplates that a representative of the judiciary will be entitled to receive his or her costs. The commission, having received representations from someone, assuming that the representative seeks costs, will, in my view, not have the discretion to say no one gets costs, if that is your point.

Senator Beaudoin: There is no discretion. That is my point.

Ms Bellis: Yes, but it is a duty of the commission to determine, among those presenting and identifying themselves as representatives, whether they all are, in its definition, representatives or that while a good point has been made, the presenters not speaking as representatives of the judiciary and therefore the commission will not identify them as such.

Senator Joyal: On the same point, I draw to your attention that the commission says very clearly that it has tried to model its approach on the basis of a legal procedure, that is to say, of a litigant being represented by counsel. It is clear in the French version that is the way the commission wanted to frame its procedure. The commission wanted to ensure that in future the judiciary, which has, of course, a prime interest in the decision, is represented through counsel and that is why it put Recommendation No. 22 in a very clear form.

It says it paid exactly $230,000, but the recommendation was for future work. It was not essentially only for their work. The philosophy of the whole report is to maintain the capacity of the judiciary to be represented through the service of the appropriate person - a lawyer or other people that the lawyer might be accompanied by such as actuaries, accountants and so forth - and that it wanted to put a percentage of that. That is the principle that is clearly stated in the bill.

When we say "may" in English, "may" is not in line with the real philosophy of the report. The French version is in line with what is recommended in the report. That is my feeling.

Senator Beaudoin: That is what I was going to say. The French text says:


The French version says "[...] et auxquels des dépens peuvent être versés [...]


In English, "costs shall be paid." There are two things in the same sentence. The French and the English are very different. Certainly we have to rely on what the intention of the legislator is here.

The Chairman: This is the sort of thing that arises when we have co-drafting of bills rather than translation of bills.

Senator Nolin: On one side you start with "may" and "shall" and on the other side it is the reverse.

Senator Beaudoin: In a case like that, I agree that the court will ask what the intention of the legislator is. This is what it will consider.

Senator Joyal: The court will look in the report. That is the first thing it will consult.

Senator Beaudoin: Could she answer my question, please? It is in the same sentence. What is the intention?

Senator Cools: How can she tell what the intention of the legislator is? We are the legislators. How can she tell us?

Senator Beaudoin: Before we, as legislators decide, I would like to know what is wanted.

Senator Cools: You mean you are asking her what it wants us to intend?

Senator Beaudoin: What is the intent?

Ms Bellis: The intent is that the commission has the discretion to determine among a variety of individuals who are submitting themselves as representatives of the judiciary -

Senator Beaudoin: If you are right, then the French version should prevail. Is that not the intention?

Senator Nolin: I think when you read both sections in parallel, you can reach that conclusion even in French. It means: I identify - I am the commission - who may receive payment. The discretion is there in the "may receive," and the English side is the reverse. However, I think at the end of the day it is the same thing.

Ms Bellis: Once the commission has made a determination, then the "shall" prevails. It is the commission who determines whether the person is or is not considered a representative. The commission has said Mr. Fortier is a representative, Judge Lambert is not, for whatever reason.

Senator Beaudoin: It means the commission has the power.

Ms Bellis: The commission makes that determination.

Senator Beaudoin: They have the power.

Ms Bellis: They do have the power to make that determination.

Senator Joyal: But they have to, because that is what they said on the conclusion at page 114 in the English version and 122 in the French:

The Commissioners should have no direct contact with either the Judiciary or the Government on any matter before the Commission, other than through counsel to the parties. When we made requests to either the Government or the Judiciary, we ensured that the other party was made aware of the request, and, in cases where third parties had expressed a particular interest in the issue that concerned us, we endeavoured to ensure that they were also made aware of such requests.

In other words, they did not want to deal with either the government or the judiciary directly but only through counsel. That is why I think the French version is the one that reflects that recommendation in the report.

Senator Cools: This matter is becoming even more complicated and the problems in these several sections are becoming increasingly manifest. I thought that we had created this process of a judicial compensation commission precisely for the judges. This is what we were told. The sections now tell us is that the commission will be able to determine those counsel who are representative of the judges. I have a lot of problem with that. It seems to me that the entire system, to begin with, is weighted in favour of the conference and the judicial council. There are more than 1,000 judges out there who certainly have some opinions. It is our duty to be protecting those people.

I cannot see that it is in the interest of any form of judicial independence whatsoever, particularly when I look at section 26.3(1), that the commission will determine those judges who will be deemed to be representatives.

It seems to me any judge who wants to appear before the commission should be not only entitled but encouraged to do so. I think we are giving with one hand and taking away with the other. There is much concern currently among the judiciary about the so-called statutory build-up of powers in the hands of the chief judges.

There is much concern. There is also a large amount of literature emanating on this point. I would urge, Madam Chairman, that this committee hear more on these clauses because they are turning out to be quite troublesome.


Senator Nolin: In subsection 26.3(3) of the bill, it says that the prothonotary of the Federal Court shall determine the amount of costs of the representatives of the judiciary. They will be taxed according to a tariff. Does that tariff allow a discretion on a solicitor-client basis or does it provide any limits regarding the number of hours, the hourly rate, the disbursements or any other type of expenses that may be included in the bill of costs? I am not familiar with Federal Court rules.


Ms Bellis: The solicitor-client tariff has both the hourly rate component as well as disbursements. For example, there is everything from photocopying, which as you know is becoming a significant cost in any legal process, to travel costs, to introduction of witnesses, to the costs of having a commission taken outside of a jurisdiction. It is fairly well established. I am not a litigator, obviously, but our litigators have advised us that the parameters are well known to the prothonotaries, that they are well established and the prothonotaries would be familiar with the kind of proceeding that the commission has conducted.

A significant component of the bill that was rendered by the representatives of the judiciary this time was the actuarial advice that they received in order to assess the government's actuarial advice. They received independent expert advice on insurance schemes, but there was also, of course, the travel and related expenses of Mr. Fortier and his junior to attend. The junior's costs were factored into the bill.

Those are the kinds of things that, as a matter of course, the prothonotaries examine and, of course, solicitor-client cost is close to the real cost of the litigation, as opposed to party-party costs.


Senator Nolin: Let me clarify my question. You paid $80,000 out of a bill amounting to $230,000. The minister is asking us, in his bill, to adopt a formula which brings in the recourse to the expertise and the discretionary power of the prothonotary of the Federal Court. Will the $230,000 bill be paid in full or at 50 per cent?

Ms. Bellis: It depends. The bill must be rendered to the prothonotary, and then, 50 per cent of the approved costs will be paid.


Senator Nolin: I know, but discretion is not total. There is a tariff. You know that tariff and you have the details of the $230,000 bill.

Ms Bellis: That is right.

Senator Nolin: You already know, or can you deduct whether half will be paid back to the judiciary, or one-third or what?

Ms Bellis: Senator Nolin, I am sorry, I misunderstood. Is your question whether we have already made an assessment of what position we will be putting before the prothonotary with respect to that specific bill? No, we have not, sir.

Senator Nolin: Okay. You already paid $80,000.

Ms Bellis: The $80,000 was paid and received by the judiciary. I apologize.

Senator Joyal: On the same point, in the costs that are admissible, are the costs of the experts, for instance the actuary or accountant that could accompany the lawyer, admissible to be taxed under the prothonotary?

Ms Bellis: That is correct. They would be included in the bill as a disbursement and the prothonotary, as I understand it, has certain criterion for those disbursements that are considered to be reasonable. Again, going back to the example that was used yesterday of a public relations expert, I must admit that I do not know whether that has ever been actually discounted in a solicitor-client taxing, but that would be the kind of question that might be raised.

Senator Banks: Would you please confirm my understanding that clause 26.3(3), which deals with the prothonotary, determines the question of costs but does not contain discretion as to who will be paid and that will be determined first?

Ms Bellis: That is correct.

The Chairman: Discretion rests with the commission.

Senator Banks: Right. I am torn, chairman, because I know about the impetus that exists to get this bill passed. I do not want to be obstructive, so I will ask for instruction from the chair and from members. My worry is that we have been hearing since yesterday about what the intent of this bill is and the intent is very clear to me.

With respect to proposed section 26, we have heard from the government what the intent is and we have heard from the commission what the intent is, but that is not what the bill says, clearly, because we have been talking about it for a hour. It seems to me that our job - and this is the instruction I seek - is to act as the quality control department. Our job is to say, "Oh, that is what the intent is, this bill does not say that." Is it not our job to identify those situations and change them?

I am looking for instruction because I do not understand. Otherwise, how could we proceed with a bill that does not clearly set out its intent? I am asking that in my naïveté and I ask for instruction and guidance.

The Chairman: As far as I may instruct and guide you, Senator Banks, which I assume is not very far, I am content with the explanation that I have heard from Senator Nolin on proposed section 26.3 about the difference between the French and the English.

Senator Banks: So am I.

The Chairman: It is our job to pick up on things like that, but our present drafting procedure for bills is that they are drafted separately in English and in French. They are not translations. At the end of the day you must go through that section to understand the effect of the section.

Senator Banks: What about proposed subsection 26.3(1)?

The Chairman: That is the part I am talking about.

Senator Banks: Proposed subsection 26.3(1) is not in any way restrictive. It provides to the commission - it almost delegates to the commission - the entire discretion to determine who and how many people will be deemed by the commission to be representatives of the judiciary. Am I not right that it could, for example, include not only a lawyer and those other people that we have talked about? I do not mean to suggest that anyone would bring an astrologer, but he or she might bring an estate planner or an accountant and that might be cogent. Might someone not also call a number of witnesses and might those witnesses not be deemed by the commission to be representatives or necessary to the cause?

I am worried about the fact that there is an unrestricted, potentially enormous charge on the Consolidated Revenue Fund that has not previously existed. Ought there not to be some kind of restraint on it?

The Chairman: The restraint on it comes through the commission and it says that the commission "may identify." In the French it says "peuvent être." The "may" part comes at the end of the sentence in French, "may be paid."

Senator Cools: That is the point.

The Chairman: No, the point is that translation does not work exactly from English to French. This is a separate writing process and at the end of the paragraph it still has the same result.

Senator Cools: The point is that the judicial commission should not have a blank cheque on the Consolidated Revenue Fund. That is the point that seems to be eluding us. A statutory charge on the Consolidated Revenue Fund is a very rare thing.

Senator Banks: We have heard that it is the government's intention and the commission's understanding that what is talked about here is legal representatives. That is not how the bill reads. If it is the intent of the government that these people should be legal representatives - that is to say lawyers - and if that is the understanding of the commission, as the commission told us yesterday they have already applied to this case, why does the bill not read that way?

Senator Nolin: The only individuals who appear before a prothonotary to have bills taxed are lawyers. I understand the concern. Correct me if I am wrong, but in court the people who ask to have bills taxed are lawyers. Is that right?

Senator Banks: That is precisely my point. Proposed subsection 26.3(3) does not say that the prothonotary can decide who gets to be paid. It says that the prothonotary shall pay whoever appears before him as if he were assessing costs under the court.

The Chairman: If I may read from the government response to the compensation and benefits commission, it may help you, Senator Banks. It indicates that the judiciary's legal representational costs would be reviewed by an assessment officer of the Federal Court of Canada for reasonableness and the government would then pay 50 per cent of the resulting total.

Senator Banks: What does it say about those representatives who are not legal?

The Chairman: It says judicial representational costs are to be paid on a solicitor-client basis. They will be legal.

Senator Cools: In other words, they are only paying legal costs.

Senator Nolin: You cannot have a solicitor-client relationship between a client and his psychic. I understand that you would like a more precise text, but what we have before us, at least on that point, is clear.

There is another point. Do we let the power of Parliament go? That is another point. That is another debate.

Senator Beaudoin: This is not the first time we have had a problem like that. We see that very often with French and English. It is not perfect. There will be some discrepancy. However, in my opinion, the court will interpret the statute having regard to the French version and the English version and, since they are pretty close, they may decide one way or the other.

Do we leave that to the court or do we decide to do it ourselves, as legislators? It is not a great risk to leave it as it is. This is not the first time there has been a problem like that. The act in general will be considered to determine if this is the intention of the legislators or if this is what they wanted. In that sense I would agree.

Senator Joyal: You will hear both sides of the same point. I agree with Senator Beaudoin that discretion should be left to the court when circumstances change. Like section 1 of the Charter, what is reasonable at one point in time might be seen differently in the future. I agree with that. However, this is not the objective of proposed section 26.3. The purpose is to ensure that the procedure the commission will have to follow is through the services of counsel. That is what was said in the report. Why leave uncertainty pending while we know now the way we want to frame the work of the commission? The way we want to frame the work of the commission is the way the commission has suggested, which is to be at arm's length from the customers it has before it. It wants to deal with legal advisers. It does not want to see the Deputy Minister of Justice before the commission. It wants to see the Deputy Minister of Justice represented through counsel.

It is new. The commission itself has established that precedent.

The Chairman: I remind senators that the government did not accept Recommendation No. 22 from the commission. It put in its own. This has been put in by the government.

Senator Joyal: That does not change. Recommendation No. 22 deals with the cost. It does not deal with the fact that counsel is there. We are not discussing the amount or the percentage of money. Recommendation No. 22 indicates 80 per cent and the government has retained 50 per cent, but this is not the point. The point is that the compensation commission wants to have a process that is as close as possible to a judicial process. The commission wants to have before it parties that do not give it direct access to the people with whom it is dealing, that is, the government and the judiciary. That is why there should be no uncertainty there because the circumstances will not change from one adjudication to the other.

I would like to have it clear. I think the government wants to have it clear as well.

The Chairman: I will call on the witness.

Ms Bellis: In terms of the government's intent with respect to the scope of the term "representative," the intent was to not necessarily require that the representative be a lawyer. We had in mind groups of judges, like Justice Lambert, and that there would be a fair opportunity for those people to come forward and make their contribution. Presumably the commission will ask itself, in addition to the benefit of the contribution, whether a judge was coming forward to represent a significant group.

I point again to the submission made on behalf of the Court of Appeal judges. The commission, I believe, will ask itself whether it is fair and reasonable that the costs that Justice Lambert and his colleagues incurred in making this contribution should be reimbursed. Alternatively, if the Senate were to propose the amendment as being considered, those judges would be required to hire legal counsel to be their spokesperson and would incur costs to the government, to the CRF, that would not be necessary in another case.

I should also point out - and perhaps this is a bit of an aside - that the commission itself made real efforts not to overly formalize the commission process. You will see that throughout its report and its discussion of the procedure. To insist that only those represented by lawyers can recoup part of their costs, 50 per cent of their costs, would result in every group having to retain lawyers even if that were not necessary.

I can assure you that Justice Lambert made his submissions much better than most counsel he might have retained. However, if he had been forced to use and only speak through legal counsel, we would have had counsel's expenses and travel expenses as well as those of Justice Lambert.

The objective is to recognize that there could be any number of people coming forward that claims to represent the judiciary. Someone has to make that determination. It is not appropriate for the executive to make the determination. It is very difficult to define in advance the range of those people who might legitimately make a contribution, represent another view, as Senator Cools has indicated, and to identify those in statute.

The thinking was that someone has to make this determination. Theoretically, you could give it to a court to make that determination, but this recourse did not seem to us to be sensible because it is the commission that has heard the submissions. It is the commission that has considered the issues. It is the commission that has that role and, in our view, it is the commission that is best able to determine who, in the context of this specific commission, is a representative of the judiciary. That was the reason for the use of the term "representative."

Senator Moore: I think it is probably correct, Ms Bellis, that it would be a conflict to have a judge judging such an issue and I think that the intent was to keep that removed and in the hands of the commission.

I want to go back to one point. I think you may have provided for me the level of comfort that I want on this. With respect to the prothonotary, in terms of the costs, one-half are paid and I want to confirm and have it on the record in case someone has to come back to this in the future, that the total, for which the government will pay 50 per cent, includes the bill of the experts. Is that correct?

Ms Bellis: That is correct.

Senator Moore: The total costs are not just the lawyers' fees.

Ms Bellis: That is correct.

Senator Moore: The lawyer does not put in his fees for $5,000 plus $1,000 for an accountant and $1,000 for actuary and get paid his $2,500 plus the $2,000. He gets half of that $7,000, correct?

Ms Bellis: That is correct.

Senator Moore: That is disbursements plus fees.

Ms Bellis: That is correct. We did recognize that, given the complexity of issues relating to the establishment of the standards that you discussed yesterday with respect to judicial compensation, there is necessarily an enormous non-legal professional cost and component. It could not be just the legal cost. If the objective is to have some internal constraints that the judges will impose on themselves, it has to be with respect to the expert witnesses as well.

Senator Moore: I just wanted you to say that.

Senator Joyal: With the interpretation of proposed section 26.3 and the example you gave of Justice Lambert appearing, am I right in concluding that the costs Justice Lambert incurred are not formally covered by proposed section 26.3 because it says a representative of the judiciary? It does not say a member of the judiciary. It says a representative or representatives.It means a third person.

Ms Bellis: That is correct, but once designated by the commission, that person would be entitled to put his bill to the prothonotary. I cannot speculate as to what that would be, but I could envision, where a group of judges retained an insurance expert to make a representation, that the costs of the insurance expert - and I cannot speak definitively on this - as well as the costs of that judge coming to Ottawa to make his submission to the commission would be the cost that would then be taxed on the solicitor-client basis.

Senator Joyal: There is a fundamental distinction between a person or a group of judges who decide to be represented by a third person, whether a lawyer, an actuary or an insurance advisor or so forth and a judge who decides to come before the commission and state his or her case. In one case, the services of the third person will be taxed on the basis of 50 per cent according to the prothonotary's admissible expenses. In the other case, as in the case of Justice Lambert, his reimbursement will be limited only to his travel expenses and what is normally accepted.

Ms Bellis: That will be at the discretion of the commission.

Senator Joyal: Is it at the discretion of the commission?

Ms Bellis: The discretion lies in the commission determining whether Mr. Justice Lambert, in that capacity, could be said to be representing the judiciary. If someone from the judiciary came simply to express a position or a view and did not purport to speak on behalf of any other person or any group of people, it seems unlikely that person would then purport to be a representative of the judiciary. However, Senator Cools raised a point that the judicial institutional collective may have groups who are not necessarily ad idem. If that group makes a contribution and satisfies the commission that the contribution is important and is representative of part of the judiciary, then the commission could make that determination.

The Chairman: We have had enough discussion on clause 18.

Shall clause 17 carry?

Hon. Senators: Agreed.

The Chairman: I see agreement around the table.

Shall clause 18 carry?

Some Hon. Senators: Agreed.

Senator Cools: Opposed.

The Chairman: It is agreed on division.

Senator Cools: Can it be recorded that I opposed it.

The Chairman: It can be recorded as on division.

Senator Cools: I wish it recorded.

The Chairman: We have to do a roll call if you wish to be recorded.

Senator Cools: Let us do a roll call on clause 18.

Senator Milne: In favour.

Senator Andreychuk: In favour.

Senator Banks: Opposed.

Senator Beaudoin: In favour.

Senator Cools: Against.

Senator De Bané: In favour.

Senator Finestone: In favour.

Senator Joyal: Abstain.

Senator Moore: In favour.

Senator Nolin: Agreed.

The Chairman: Clause 18 is carried; seven in favour, two opposed and one abstention.

Shall clauses 19 to 27 inclusive carry?

Hon. Senators: Agreed.

The Chairman: That is agreed.

Shall the title carry?

Hon. Senators: Agreed.

The Chairman: It is agreed.

Is it agreed that this bill be adopted without amendment?

Some Hon. Senators: Agreed.

Senator Cools: It has to be on division.

The Chairman: It is agreed, on division.

Senator Beaudoin: Were clauses 1 to 17 carried?

The Chairman: Yes, they were adopted.

Is it agreed that I report the bill, without amendment, at the next sitting of the Senate?

Some Hon. Senators: Agreed

Senator Cools: My understanding is that we are supposed to have a little discussion. Can we hold the decision on reporting of the bill in case we want to include some comments in the report?

The Chairman: There are no amendments so the report goes through as is.

Senator Cools: The question before us is whether she should report the bill this afternoon. That is what we have to resolve.

The Chairman: I would like very much to report this bill this afternoon.

Senator Cools: I have no doubt. The question should be held for just a few minutes so we can have a discussion.

The Chairman: I shall put the question then.

Is it agreed that I report the bill at the next sitting of the Senate?

Hon. Senators: Agreed.

The Chairman: It is agreed.

I will ask senators to stay for an in camera session.

The committee continued in camera.