Journals of the Senate
55 Elizabeth II, A.D. 2006, Canada
Journals of the Senate
(Unrevised)
1st Session, 39th Parliament
Issue 55- Appendix "B"
Wednesday, November 29, 2006
1:30 p.m.
The Honourable Noël A. Kinsella, Speaker
Wednesday, November 29, 2006
The Standing Senate Committee on National Finance has the honour to present its
SIXTH REPORT
Your Committee, to which were referred the 2006-2007 Estimates, has, in obedience to the Order of Reference of Wednesday, April 26, 2006, examined the said Estimates and herewith presents its second interim report.
Respectfully submitted,
JOSEPH A. DAY
Chair
SECOND INTERIM REPORT ON THE 2006-2007 ESTIMATES
Provisions to Safeguard the Independence of the Judiciary and the Determination of Judicial Compensation and Benefits
Your Committee, to which were referred the 2006-2007 Estimates, has, in obedience to the Order of Reference of April 26, 2006, examined the said Estimates and herewith presents its second interim report.
INTRODUCTION
The 2006-2007 Estimates were tabled in the Senate on April 25, 2006 and subsequently referred for examination to the Standing Senate Committee on National Finance.
During its initial examination of the 2006-2007 Estimates, the Committee reviewed the planned expenditures of the Department of Justice and the Office of the Commission for Federal Judicial Affairs. Following this initial examination, Committee felt that several issues relating to those Estimates merited further study. Subsequently, on September 27, 2006, Mr. David Gourdeau, the Commissioner for Federal Judicial Affairs, appeared before the Committee to discuss the 2006-2007 Estimates and the support that his Office provides to the federal judiciary. The Commissioner was followed by officials from the Judicial Affairs Section, Courts and Tribunal Policy, of the Department of Justice: Ms. Judith Bellis, General Counsel, and Ms. Adair Crosby, Senior Counsel — Deputy Director. They spoke to the process by which judicial compensation and benefits are determined.
OVERVIEW
A. Office of the Commissioner for Federal Judicial Affairs
The Commissioner began his testimony by providing Senators with an overview of the history and mandate of the Office of the Commissioner for Federal Judicial Affairs (the Office). The Office was created in 1978 under the Judges Act in order to safeguard the independence of the judiciary and put federally appointed judges at arm's length from the Department of Justice.
1. Activities
The Commissioner explained to the Committee that the services and support his Office provides to the judiciary stems from Sections 72 to 74 of the Judges Act. The Judges Act provides for the designation of an officer called the Commissioner for Federal Judicial Affairs. One of the roles of the Commissioner is to act on behalf of the Minister of Justice in matters related to the administration of Part I of the Judges Act, which deals with the terms of appointment, age limit, salaries, and pensions applicable to federally appointed judges. The mandate of the Office extends to promoting better administration of justice and providing support for the federal judiciary. Since 1995, the Office has also been involved in promoting and facilitating participation by members of the Canadian judiciary in international cooperation projects and initiatives.
2. Budget
The Office follows the normal Treasury Board Secretariat annual budget planning and resource allocation process. The Commissioner explained that the budget of the Office is divided into four elements: two Voted Appropriations and two Statutory Expenditures. Operating expenditures for the Office of the Commissioner for Federal Judicial Affairs and the Canadian Judicial Council are annual voted appropriations. Statutory Expenditures include judges' salaries, allowances and annuities, annuities to spouses and children of judges, and lump sum payments to spouses of judges who die while in office, as well as contributions to employee benefit plans of the Office.
3. The Federal Judicial Appointment Process and the role of the Judicial Advisory Committees
Senators were particularly interested in examining how the current provisions within the Judges Act with respect to appointments and remuneration related to the independence of the judiciary. Under the Act, the Commissioner for Federal Judicial Affairs has the overall responsibility for the administration of the appointments process on behalf of the Minister of Justice. However, as Mr. Gourdeau noted in his testimony, it is the judicial advisory committees that have the responsibility of assessing the qualifications for appointment of the applicants. In response to further questions, the Commissioner explained that the advisory committees, of which there are currently 16, are established on a geographical basis. There is at least one committee in each province and territory; as a result of its larger population, Ontario has three regionally-based committees and Quebec has two. Each committee currently consists of seven members appointed by the federal justice minister: two from the legal profession, one from the province or territory, three ministerial appointments at large, and a judge as the chair.
Reflecting the advisory nature of the committee process, the advisory committees are currently asked to assess candidates on the basis of three categories — "recommended'', "highly recommended'' or "unable to recommend'' for appointment. Senators were interested to learn that once the assessment has been completed, candidates are not provided with their results. Each assessment is sent to the Office which then prepares a list of candidates to be submitted to the Minister of Justice. Federal judicial appointments are made by the Governor General acting on the advice of the federal Cabinet. A recommendation for appointment is made to Cabinet by the Minister of Justice with respect to the appointment of puisne judges, and by the Prime Minister with respect to the appointment of Chief Justices. The Office prepares all documentation pertaining to an appointment.
While noting that the government may have valid reasons not to release the results of the assessment to the candidate, the Committee believes that this often has a negative impact on the individual involved and, for this reason, suggests that the government reconsider this practice.
In early November 2006, the federal justice minister proposed changes to the composition of the current judicial advisory committees. These changes include:
the addition of a representative of the law enforcement community to the advisory committee thereby increasing the number of members to eight; and
new assessment categories, changing from three categories ("recommended'', "highly recommended'' and "unable to recommend'') to two categories ("recommend'' or "do not recommend'').
The Committee understands that there has been some debate over these proposed changes.
4. Support to the Judicial Compensation and Benefits Commission
The Commissioner clarified that the role of the Office in the determination of the salaries and benefits of the judiciary is limited to the administrative services and operational support provided to the Judicial Compensation and Benefits Commission. The role of the Commission was explained by officials from the Judicial Affairs Section, Courts and Tribunal Policy, of the Department of Justice.
B. The Department of Justice: Judicial Affairs, Courts and Tribunal Policy
Ms. Judith Bellis, General Counsel, Judicial Affairs, Courts and Tribunal Policy provided a brief overview of the role of the Judicial Affairs Section of the Department of Justice in relation to judicial compensation issues.
1. Role of Judicial Affairs, Courts and Tribunal Policy
Ms. Judith Bellis began her testimony by explaining the role of the Section, which is to provide legal and policy advice to the Minister and the Deputy Minister of the Department of Justice, as well as to the central agencies and all other government departments with respect to any matter that arises relating to the provincial and federal superior courts and judiciary. On request, it also provides legal advice to the Commissioner for Federal Judicial Affairs with respect to the administration of Part 1 of the Judges Act. Specifically, the Judicial Affairs Section is responsible for the development and coordination of all legislative policy initiatives that relate to the federally created courts, as well as the amendments to the Judges Act and all related subordinate legislation.
Ms. Bellis noted that the Judicial Affairs Section is small, currently comprising seven lawyers, and a senior social scientist and statistician. Senators noted with interest that the professional capacity of the Section is regularly complemented through contracts with multidisciplinary expert advisors, including private sector compensation specialists and constitutional academics. Ms. Bellis explained that this professional capacity is of significant importance in their work in relation to the quadrennial commission process. These responsibilities include developing and presenting the government's submission to the quadrennial Judicial Compensation and Benefit Commission. In addition, Judicial Affairs helps prepare the government's response to the report of the Judicial Compensation and Benefit Commission and the instructions for the legislative drafting to direct changes to the Judges Act arising from the government's response.
2. Remuneration of the Judiciary and the Judicial Compensation and Benefits Commission
Some Senators were interested in the role of Parliament determining the remuneration of the federally appointed judiciary. Questions arose as to whether or not the current regime for bringing forth those recommendations for salaries and allowances is consistent with the constitutional requirement that the salaries of the judges be fixed and provided by the Parliament of Canada, as required under Section 100 of the Constitution Act, 1867. These salaries are now provided for in the Judges Act.
Under the Canadian constitution, the judiciary is independent from the executive and legislative branches of government. Judicial independence is intended to ensure that judges make decisions free of influence, based solely on the facts and the law. As such, it has been recognized that Judges must receive proper remuneration in such a manner that does not leave them in a position of dependence or subject to pressure.
As one Senator observed, since 1998 the process by which remuneration of the federally appointed judiciary is determined involves the work of an independent commission, the Judicial Compensation and Benefits Commission (the Commission). Established under Section 26 of the Judges Act, its mandate is to inquire at least once every four years into the adequacy of the salaries and benefits of the federally appointed judiciary.
Ms Bellis explained that the current structure, mandate and composition of the Commission were specifically designed to ensure that, as required by the Supreme Court of Canada in its decision on the Prince Edward Island Judges Reference case, there was a Commission that was independent, effective, and objective that would be established to make recommendations to government in relation to judicial compensation.1 Some Senators asked whether there were other opinions expressed by the Supreme Court Judges in relation to this case. Ms. Bellis confirmed that there was strong dissent from Justice La Forest.
The first quadrennial Judicial Compensation and Benefits Commission was appointed in September 1999; the second quadrennial Commission was appointed in October 2003. The mandate of the latter Commission runs until September 1, 2007, when the next commission will be appointed.
Senators were interested in the operation of the Commission. Ms Bellis informed the Senators that as a result of a recommendation by the Senate in 1998, the Commission now undertakes its consideration of adequacy in light of four statutory criteria that are set out in the Judges Act. Those criteria include: the prevailing economic conditions and the current financial position of the federal government; the role of financial security in ensuring judicial independence; the need to attract outstanding candidates to the judiciary; and any other objective criteria that the Commission considers relevant. In doing its work, the Commission considers extensive written submissions, expert reports from compensation professionals, and verbal representations delivered over the course of two days of public hearings. She noted that while the main interested parties are representatives for the government and representatives for the judiciary, the Commission's hearings are widely publicized and the public is welcome.
Under the Judges Act, the Commission must deliver its report and recommendations to the Minister of Justice for consideration by the government within six months of commencement; in turn, the government must respond publicly within six months.
In response to Senator's questions, Ms. Bellis confirmed that as a result of the Prince Edward Island Judges Reference2 case, the Commission's recommendations are not binding. However, where the recommendations are not accepted, or where it is proposed that a recommendation should be modified, the government must provide a reasonable justification for its decision. If the justification is considered to be insufficient that response can be challenged in a court of law. She noted that recommendations of the Commission are implemented through the parliamentary process. Thus, once it has responded, the government must say whether and what it intends to do in terms of amending the Judges Act. Ms. Bellis noted that the Supreme Court of Canada's 2005 decision in a case called Bodner vs. Alberta3 clarified the standard of justification that government must meet if it chooses to vary, modify or reject a Commission recommendation.
The latest Report of the Judicial Compensation and Benefits Commission was submitted to the Minister of Justice in May 2004. The Report was tabled in Parliament on October 18, 2004. In its response to the Report of November 30, 2004, the former government accepted all of the Commission's recommendations, except one which it accepted in modified form. Bill C-51, An Act to amend the Judges Act, the Federal Courts Act and other Acts, which was introduced into the House of Commons on 20 May 2005, would have implemented the response. It died on the Order Paper when Parliament was dissolved on November 29, 2005.
The second government response to the May 2004 Report entitled, The 2006 Response of the Government of Canada to the Report of the 2003 Judicial Compensation and Benefits Commission was issued on May 29, 2006. Subsequently, on May 31, 2006, the Minister of Justice introduced new legislation to implement its response, Bill C-17, An Act to amend the Judges Act and certain other Acts in relation to courts). The Act would fully implement all but two of the recommendations contained in the May 2004 Report of the Judicial Compensation and Benefits Commission; the remaining two recommendations would be implemented in modified form.
Some Senators noted that the government's 2006 Response proposes that judges receive a salary increase of 7.25 per cent rather than the 10.8 per cent recommended by the Commission. It was also noted that the financial and economic conditions of the federal government have changed, as evidenced by the recent $13 billion debt repayment; financial and economic conditions are one of the four statutory criteria set out in the Judges Act that the Commission must consider when looking at the adequacy of salaries. Ms. Bellis explained that the government's 2006 Response provides the full rationale for the amended amount and noted that one of the fundamental issues was a difference in view over the analytical methodology that was utilized by the Commission. It was felt that the Commission's technical advisers gave too much weight to the salaries of senior lawyers of the eight largest urban centres in Canada.
3. Membership of and Appointment to the Commission
Each quadrennial Judicial Compensation and Benefits Commission is made up of three members. Senators were also interested in the process by which commissioners are selected and what, if any, criteria govern their appointment. Ms. Bellis pointed out that, in terms of the composition of the Commission, the Judges Act provides that the government nominate one member, the judiciary nominates another and, together, they nominate the chair. Otherwise, there are no statutory qualifications or criteria that govern the selection of the members. However, in the past, Judicial Affairs has been asked to provide suggestions for who might be considered qualified persons in terms of the government member. In making those suggestions, they recommended that it would be important to have a member on the Commission with a strong background and knowledge in public administration and finance, and public issues more broadly.
Ms Bellis explained that while members are appointed for the four-year period, they are only actively operating, in the normal course, during that six-month period in which they are conducting their inquiry.
CONCLUDING COMMENTS
During its meetings on the 2006-2007 Estimates of the Department of Justice and those of the Office of the Federal Commission of Judicial Affairs the Committee debated these and other matters, including: matters pertaining to the payment of pensions to retired judges and to the beneficiaries of retired judges; expenses; and current vacancies. The Committee noted with interest the involvement of the independent commission established to examine the adequacy of judges' salaries and benefits, and recognized the importance of judicial independence. It believes that, as outlined by representatives from the Department of Justice, the process for bringing forth recommendations for salaries and allowances is consistent with section 100 of the Constitution. It notes that the amendments that Bill C-17 makes to Judges Act are subject to parliamentary review and approval prior to implementation.
1 In 1997, the Supreme Court of Canada rendered a key decision in a reference on remuneration of judges of the Provincial Court of Prince Edward Island. The decision established new constitutional requirements for determining judicial compensation. Every Canadian jurisdiction is required to have "an independent, objective and effective'' commission to consider the compensation and benefits of judges, and make recommendations to government. Subsequently, on 19 March 1998, Bill C-37, An Act to amend the Judges Act, was introduced in the House of Commons. The bill was in response to PEI court case as well as the Report and Recommendations of the 1995 Commission on Judges' Salaries and Benefits. Among other amendments, the Bill provided for an independent salary commission.
2 [1997] 3. S.C.R. 3.
3 [2005] 2. S.C.R. 286.