Proceedings of the Standing Senate Committee on
Legal and
Constitutional Affairs
Issue 1 - Evidence
Ottawa, Wednesday, March 20, 1996
[English]
The Standing Senate Committee on Legal and Constitutional Affairs met this day, at 4:20 p.m., to organize the activities of the committee.
Ms Heather Lank, Clerk of the Committee: Honourable senators, I see that we have a quorum. As clerk of your committee, I have the honour to preside over the election of the chair of the committee. I am now ready to receive any motions to that effect.
[Translation]
Senator Nolin: I move that Senator Carstairs be appointed Chair.
[English]
Ms Lank: It is moved by Senator Nolin that the Honourable Senator Carstairs be elected chair of this committee. Is it your pleasure, honourable senators, to adopt the motion?
Hon. Senators: Agreed.
Ms Lank: I declare the motion carried. In accordance with rule 88 of the Rules of the Senate, the Honourable Senator Carstairs is elected chair of this committee. I invite her to please take the chair.
Senator Sharon Carstairs (Chair) in the Chair.
The Chair: Thank you honourable senators. Before I begin -
[Translation]
Honourable senators, I would like to thank Senator Beaudoin for his work as Chair of the Standing Committee on Legal and Constitutional Affairs. Having worked with him on this committee as well as on the Special Committee on Euthanasia and Assisted Suicide, I have been impressed with his dedication, sensitivity, knowledge and ability.
I hope that he will assist me in my duties just as he did when he was Chair.
[English]
Honourable senators, we in this committee have been very fortunate in having Senator Beaudoin as our Chair for the past three years. I certainly hope that he will be there for me as I chair the committee because I will need a great deal of help and guidance, and I am counting on him.
Our next function is to elect a deputy chair. Are there any nominations for that position?
Senator Lewis: I nominate Senator Nolin.
The Chair: Senator Nolin has been nominated as our deputy chair. Is it the will of the committee to accept that nomination?
Hon. Senators: Agreed.
The Chair: Motion carried.
There are a number of motions that we must pass today in order to establish the committee. The first one is in item number 4 on the agenda. I ask that someone move:
That the Subcommittee on Agenda and Procedure be composed of the Chair, the Deputy Chair and one other member of the Committee to be designated after the usual consultation.
That the Subcommittee be empowered to make decisions on behalf of the Committee with respect to its agenda and procedure.
That the Subcommittee be empowered to invite witnesses and schedule hearings; and.
That the Subcommittee report its decisions to the Committee.
Is there a mover of that motion?
Senator Corbin: So moved.
The Chair: Is it agreed?
Hon. Senators: Agreed.
The Chair: Motion carried.
The next item is a motion to print the committee's proceedings. It has been suggested that 500 copies be printed for distribution. That is a reduction of 160 because we found that not all of those copies were required. Would someone move:
That the Committee print 500 copies of its Proceedings and that the Chair be authorized to adjust this number to meet demand.
Senator Pearson: I so move.
The Chair: Is it agreed?
Hon. Senators: Agreed.
The Chair: Motion carried.
Item number 6 is authorization to hold meetings, to print evidence when a quorum is not present. Would someone move:
That, pursuant to rule 89, the Chair be authorized to hold meetings, to receive and authorize the printing of the evidence when a quorum is not present.
Senator Milne: I so move.
The Chair: Is it agreed?
Hon. Senators: Agreed.
The Chair: Motion carried.
Item 7 is with regard to the financial report. The motion is:
Pursuant to rule 104, the Committee is required to report on its expenses incurred in the preceding session.
Senator Jessiman: I so move.
The Chair: Is it agreed?
Hon. Senators: Agreed.
The Chair: Motion carried.
The eighth item on our agenda today is with regard to research staff. The research officers assigned to committees are recruited through the Library of Parliament. However, we need the following motion:
That the Committee ask the Library of Parliament to assign research officers to the Committee.
That the Chair be authorized to seek authority from the Senate to engage the services of such counsel and technical, clerical and other personnel as may be necessary for the purpose of the Committee's examination and consideration of such bills, subject-matters of bills and estimates as are referred to it.
That the Subcommittee on Agenda and Procedure be authorized to negotiate the contracts and retain the services of such experts as may be required by the work of the Committee; and.
That the Chair, on behalf of the Committee, direct the research staff in the preparation of studies, analyses and summaries.
Senator Beaudoin: I so move.
The Chair: Is it agreed?
Hon. Senators: Agreed.
The Chair: Motion carried.
Under item nine we need the authority to commit funds and certify accounts. Would someone move:
That, pursuant to section 32 of the Financial Administration Act, authority to commit funds be conferred on the Chair or in the Chair's absence, the Deputy Chair; and.
That, pursuant to section 34 of the Financial Administration Act, and Guideline 3:05 of Appendix II of the Rules of the Senate, authority for certifying accounts payable by the Committee be conferred on the Chair, the Deputy Chair, and/or the Clerk of the Committee.
Senator Doyle: I so move.
Senator Lewis: I have a question on that motion. I note that with regard to certifying the accounts the motion reads that the authority "be conferred on the Chair, the Deputy Chair, and/or..."
The Chair: That is a good point.
Heather, do we need both?
Ms Lank: We should probably go with an "or".
Senator Lewis: Does that mean it could either be the chair, the deputy chair or the clerk alone?
Ms Lank: For certifying accounts payable but not for committing funds; so simply to say that the service was performed.
Senator Beaudoin: I think that in law we must delete the expression "and/or". We do not use it anymore, at least in some provinces. I know that in Quebec it is avoided. I agree with Senator Lewis.
The Chair: Certainly we should remove the "and" from the motion. Is there an agreement that the "and" be removed?
Hon. Senators: Agreed.
The Chair: Would someone move the motion as it has been amended?
Senator Lewis: I so move.
The Chair: Is there agreement of the committee?
Hon. Senators: Agreed.
The Chair: Motion carried.
Item number 10 does not refer to travel of the committee, as I understand it. It is to designate travel if we should want someone to attend a conference on behalf of the committee, be that staff or a particular senator, but it is not referring to travelling by the committee. Should we want to travel as a committee, we would have to be granted the monies by the Senate.
This motion reads:
That the Committee empower the Chair to designate, as required, one or more members of the Committee and/or such staff as may be necessary to travel on assignment on behalf of the Committee.
Will someone move that motion?
Senator Beaudoin: I so move.
The Chair: Is there agreement of the committee?
Senator Corbin: I have a question. Would you have sole authority to assign people to attend conferences or meetings as you decide?
The Chair: I assume it would be a committee decision.
Senator Corbin: Will the members of this committee, at some stage, have input into such requests?
The Chair: That is certainly the way I would do it but it might read better if it said "empower the Chair, after consultation with members."
Senator Corbin: In other words, members could take the initiative to recommend?
The Chair: Yes.
Senator Corbin: That is fine.
Senator Beaudoin: I have been on this committee for some time and I have never seen any abuse of that process on the part of this committee. As a matter of fact, the budget of this committee is remarkably low.
Senator Lewis: It is probably one of the smallest.
Senator Beaudoin: It is easily one of the lowest. I merely wish to indicate that for the purposes of the record, because we have not spent very much money.
The Chair: The last budget of this particular standing committee came to a grand total of $667.69. I will be as impecunious as the previous chair.
Senator Corbin: There was a reason for that. The committee was practically nailed down in Ottawa with all the work it had to do. It had no freedom to travel.
The Chair: You are absolutely right.
Senator Beaudoin: It is still a very small budget.
The Chair: Would you like an addition to that, or are you satisfied?
Senator Corbin: I am satisfied as long as there is that understanding.
The Chair: The understanding exists. Could I have a mover for that travel motion?
Senator Pearson: I so move.
The Chair: Is there agreement of the committee?
Hon. Senators: Agreed.
The Chair: The motion is carried.
Next is item No. 11. Under Senator Beaudoin and perhaps earlier, the committee only paid for one witness to attend. However, within the Rules of the Senate, there is the right to pay the expenses of two witnesses to appear before us. If possible, we would like to keep it to the one, but there might be special circumstances in which we would want to pay the expenses of a second witness as well. The motion reads:
That, pursuant to the Senate guidelines for witnesses' expenses, the Committee may reimburse reasonable travelling and living expenses for no more than two witnesses from any one organization and payment will take place upon application.
Senator Nolin: I so move.
The Chair: Is it agreed?
Hon. Senators: Agreed.
The Chair: The motion is carried.
I should also like to get a consensus that you feel, as I do, that one witness should be sufficient under most circumstances. Is that the general feeling of the committee?
Hon. Senators: Yes.
Senator Beaudoin: That is my first reaction.
The Chair: The time slot for regular meetings of this committee is Wednesday afternoon at 3:15 in Room 505 of the Victoria Building. We could not call that meeting for 3:15 this afternoon. Because there was no chair, we had to wait until the Senate rose. However, under normal circumstances, we will introduce a motion that we meet even though the Senate may be sitting. The Thursday morning time slot is 9:30, and that is in Room 256-S. We have a number of pieces of legislation before us at the present time, and I would think that we would be filling both of those time slots very quickly.
I have, with the Clerk of the Committee, taken the liberty of inviting officials from the Department of Justice to meet with us tomorrow morning on Bill C-2, which is the Judges Act. Although you have not received much notice, there will indeed be a meeting tomorrow morning, 9:30 in Room 256-S, if that is agreeable with the committee.
Senator Beaudoin: Is that the only item on the agenda tomorrow?
The Chair: It is. In the event that Bill C-8, the drug bill, is referred to committee tomorrow, I have tentatively set up witnesses from the Canadian Bar Association and the Canadian Medical Association to appear next Wednesday and Thursday.
Senator Beaudoin: Is the Drug Act now Bill C-8?
The Chair: The old Bill C-7 is now Bill C-8.
Senator Beaudoin: Will it be referred to this committee tomorrow?
The Chair: We should not make any assumptions, but if all things go according to plan, it will.
Senator Beaudoin: The last day of our sittings, a group of witnesses came before us suggesting many items. Whether or not they are right is debatable, of course, but did they send the memorandum?
The Chair: Indeed they did, and it will be distributed to the whole committee.
Many of us were concerned about what exactly Mr. Justice Le Dain had said, so I asked for a brief summary of the Le Dain committee report. Senator Doyle had expressed an interest in having the report revisited by us, so I asked that that be done.
If Bill C-8 comes to us, which is the drug bill, do you want to rehear the evidence that we heard on Bill C-7, or would you like summaries of that evidence, particularly for those people who were not on the committee at the time that we reviewed it?
Senator Beaudoin: I am partial to the theory that we not hear again what we have already heard, provided of course we resurrect the evidence given before the committee.
The Chair: I could move a motion that would read something like this:
That the papers and evidence received and taken by the Standing Senate Committee on Legal and Constitutional Affairs during its examination of Bill C-7, an act respecting the control of certain drugs, their precursors and other substances, and to amend certain other acts and to repeal the Narcotic Control Act in consequence thereof, in the first session of the Thirty-fifth Parliament and any other relevant parliamentary papers and evidence on the said subject be referred to the said committee for its present study of Bill C-8, an act respecting the control of certain drugs, their precursors and other substances, and to amend certain other acts and repeal the Narcotic Control Act in consequence thereof.
That would give us the right to bring it all back again.
Senator Lewis: There was an awful lot of evidence. We certainly would not want to go through it again.
Senator Corbin: I agree.
Senator Nolin: Are you planning to have some kind of summary prepared for the new members?
The Chair: Yes.
Senator Jessiman: It might be good for all members.
The Chair: We will certainly do that.
The committee continued in camera.
Ottawa, Thursday, March 21, 1996
[Translation]
The Standing Senate Committee on Legal and Constitutional Affairs met this day, at 9:30 a.m., to give consideration to Bill C-2.
Senator Sharon Carstairs (chair) in the Chair.
The Chairman: Honourable senators, this morning, we will be studying Bill C-2, an Act to amend the Judges Act.
[English]
Honourable senators, we have with us this morning a witness from the Department of Justice.
In his remarks in the House yesterday Senator Nolin addressed two important issues which I hope the witness will address in his remarks. First, it is somewhat difficult to understand how a committee can be extended from six months to twelve months and not have it result in an additional cost. Second, if one raises the bar on its report stage from six months to twelve months, does that mean instead of doing it at five and a half months they now do it at eleven and a half months?
Would you please address those issues in your comments this morning? It would be useful to the members of the committee.
Mr. Harold Sandell, Legal Counsel, Judicial Affairs Unit, Department of Justice: Honourable senators, as your chairman has indicated, I have a few brief remarks regarding Bill C-2.
Under section 100 of the Constitution of Canada, it is the duty of Parliament to fix and provide the salaries, allowances and pensions of federally appointed judges. To assist Parliament in exercising that responsibility, a process was established under the Judges Act in 1981 for the review of salaries, pensions and other benefits payable to federally appointed judges. Every three years, a commission is appointed by the Minister of Justice to inquire into the adequacy of judicial remuneration. These triennial commissions are currently under a statutory obligation to report to the Minister of Justice within six months of appointment. The minister, in turn, is under a statutory obligation to table the report in Parliament within 10 sitting days of receiving it.
The rationale for having such commissions is fairly evident. Triennial commissions provide to the government on a regular basis non-binding advice which is objective and independent in nature with respect to determining fair compensation for federally appointed judges. The process respects and enhances the independence of the judiciary according to our constitutional traditions. The Supreme Court of Canada has affirmed in the Valente case and in the Beauregard case that this independence of the judiciary is grounded on both security of tenure and financial security.
Honourable senators, the six-month reporting period has proven to be a very short time for the triennial commission members, who serve part time, to complete their onerous responsibilities. They need to invite and receive briefs from the public, judges' groups and others. They need to publish notices in the press. They need to acquire and study highly technical information. They need to await and study written submissions. They also need to conduct public hearings; and they need to prepare and translate the report, all within six months of appointment. All this puts undue pressure on the commissioners and barely allows them the time necessary to approach the job methodically and produce a well-considered report on compensation issues.
The judges' organizations, the Canadian Bar Association and others who prepare and make submissions to the triennial commissions have also found the present six-month reporting period to be insufficient and are generally in favour of extending the reporting period by six months.
Honourable senators, Bill C-2 would do nothing more than extend the reporting period for triennial commissions from six months to twelve. The costs associated with this measure would be nil because there would not be any additional work involved. Essentially, it would be the same amount of work extended over a longer time period. The commissioners are paid on a per diem basis. Therefore, if they do the same amount of work but extended over twelve months instead of six, the cost would be the same. This bill would have no bearing on judges' salaries, which continue to be frozen.
The Chairman: If they are having trouble making the six-month bar, what makes you think they will not have the same problem making the 12-month bar?
Mr. Sandell: There have been four commissions completed to date, the 1983, 1986, 1989 and 1992 commissions, all of which completed their work, with a great deal of difficulty I might add, in six months. That being the case, I would not anticipate any difficulty in a commission completing a report in 12 months when at least four commissions have completed the work in six months, albeit under a great deal of pressure.
I might add that the commissioners are all part time. They are either, for the most part, lawyers or business people and do much of the work on weekends, evenings and whatever time they can make during the week. This would relieve some of the pressure caused by having the report completed and ready for tabling in Parliament within six months of appointment.
I might add as well that the Canadian Judicial Council, the Canadian Judges Conference and the Canadian Bar Association which routinely make submissions to the commissions also find the six-month reporting period very difficult because they have to have their reports completed and filed very early within the six-month window in which a commission operates, in order to allow the commission the time to examine their submissions in detail in the course of preparing their report. They, too, would welcome an extension of the commission reporting period from six months to twelve months.
Senator Nolin: What is the cost of the process now?
Mr. Sandell: I will begin by indicating that the cost of the commissions is paid out of the budget of the Commissioner for Federal Judicial Affairs. The Commissioner for Federal Judicial Affairs is an independent office created by the Judges Act and is separate from the Department of Justice, which has responsibility for the payment of judges' salaries, pensions, allowances and other benefits.
Unfortunately, I do not have the exact figures with me for the last three commissions. However, I do recall what they were. The cost of the 1986 commission was in the area of $60,000 to $70,000. The total cost of the 1989 commission, which was a three member commission, was $46,000. The cost would vary somewhat according to the number of members on the commission. Under the Judges Act, these commissions must consist of from three to five members.
The 1983 commission was chaired by the Honourable Otto Lang. It was the first commission. The 1986 commission had four members. The 1989 commission had three members. The precise figure for that commission was approximately $46,000 in total. With respect to the 1992 commission, under the chairmanship of Mr. Purdy Crawford, I believe the costs were in the $80,000 range. There were five members on the 1992 commission, one of whom resided in Vancouver. Of course, when there is a lot of travelling, costs increase. Having five members on the commission would also increase the per diem costs.
Senator Nolin: Now we have three.
Mr. Sandell: All of them, without exception, have been under $100,000 each.
Senator Nolin: In your opening statement, you said there would be no extra cost.
Mr. Sandell: That is right, no extra cost.
Senator Nolin: Is this a firm commitment of the department?
Mr. Sandell: That is correct. Any extra cost would be paid out of the existing budget of the Commissioner for Federal Judicial Affairs. There would be no additional request for new funds and no additional cost in the sense that the precise amendment extending the commission's mandate from 6 months to 12 months would not result in increased work. It would simply spread the work over 12 months instead of compressing it into 6 months. That is what I meant when I said there would be no increased cost over what it would cost should the mandate remain at six months.
Senator Lewis: Mr. Sandell, how many commissioners are on the present commission?
Mr. Sandell: The current commission, under the chairmanship of David Scott, a lawyer here in Ottawa, has three members. I can give you the names of the members, if you like.
Senator Lewis: If you would not mind.
Mr. Sandell: The chairman is Mr. David Scott, Q.C., of Ottawa. There are two other commissioners. One is Mr. Michel Vennat of Stikeman, Elliott, a law firm in Montreal, and the third commissioner is a businesswoman from Vancouver, Barbara Rae. Those are the three commissioners on the current commission.
Senator Lewis: There is really only one clause to the bill.
Mr. Sandell: That is right, one clause, and there is a "for greater certainty" clause. The initial clause is just the extension from 6 months to 12 of subsection 26(2) of the Judges Act. The "for greater certainty" clause would make that extension applicable to the commission currently under way, which was appointed on September 30, 1995.
I might add that the commissions which are appointed for six months must be appointed between April 1 and September 30 within that third year. For example, there were commissions in 1983, 1986, 1989, 1992 and 1995. The 1995 commission must be appointed under the Judges Act between April 1 and September 30 of that third year. Once the commission is appointed, the six-month clock begins to tick. The current commission under the chairmanship of Mr. Scott was appointed on the final day of the six-month window. That has been the tradition with respect to all the previous commissions as well. It was appointed on September 30, 1995. Its six-month mandate began to tick on that day and therefore expires on March 31, 1996, a week or two away. The six-month mandate of the current commission, in the absence of the amendment, will expire on March 31 of this year.
Senator Lewis: I understand what you said about the clause of the bill. As I see it, the first clause of the bill replaces subclause (2) of section 26 of the Judges Act. Then you have another clause, the greater certainty clause. That is number 2 as well. Should it have been number 3?
Mr. Sandell: Clause 1(1) is the amendment to section 26(2). The unbolded print at the beginning of subsection (2) that is being amended, which begins "Within twelve months", is the actual subsection of the Judges Act that is being amended. That is subclause (1) of the bill. Subclause (2) of the bill is the "for greater certainty" provision.
There are essentially two subclauses or two clauses in this bill. Clause 1(1) amends section 26(2) of the act. Clause 1(2) is the "greater certainty" provision.
Senator Lewis: If the bill is enacted, then the legislation will show clause 26(1) and then a new clause.
Mr. Sandell: Subsection 26(1) of the Judges Act is -
Senator Lewis: It would stay the same.
Mr. Sandell: Subsection 26(1) of the Judges Act is unamended. It will not be amended.
Senator Lewis: It will stay the same.
Mr. Sandell: Subsection 26(2) of the Judges Act, which begins "Within six months after being appointed", is being amended by subclause 1(1). That is why it begins with a small (2) because it is referring to subsection 26(2) of the Judges Act.
Senator Lewis: But it is really just replacing subclause 2, is it not?
Mr. Sandell: That is correct, holus-bolus.
It also makes another amendment. The last line of the new clause 26(2) refers to "after the Minister receives it". That is consistent with the removal of gender-specific pronouns in legislation. Whenever an act is being amended in the normal course, any gender-specific pronouns or references in a subsection are automatically removed. The word being removed there is the word "he". "After he receives it" is being replaced by "after the Minister receives it". That is routine drafting procedure now.
Senator Lewis: I am curious. Subsection (1) remains the same. Subsection (2) will be replaced. Then you have another subsection, but it is still called number 2. Should it be number 3?
Mr. Sandell: No, I do not believe so, senator. It is a subclause of this bill. The "greater certainty" provision does not become part of the Judges Act. It becomes part of the Statutes of Canada, chapter whatever that Bill C-2 would eventually become. It is not incorporated into the Judges Act.
Senator Lewis: Fine.
Mr. Sandell: It is a sui generis transitional provision which applies only with respect to this current commission and does not become part of the permanent structure of the Judges Act.
Senator Lewis: I understand that four commissions have reported.
Mr. Sandell: That is correct. The Scott commission is the fifth since the Judges Act was amended to provide for triennial commissions.
Senator Lewis: I also understand that these reports are not binding.
Mr. Sandell: That is correct.
Senator Lewis: They are actually advice to the minister and to Parliament.
Mr. Sandell: To the minister, the government and to Parliament. They are tabled in Parliament.
The objective of the triennial commission process was to take partisan politics - to the extent that that is possible - out of the determination of judicial salaries and benefits.
Senator Corbin: There is no such animal as partisan politics. Partisan politics does not exist.
Mr. Sandell: It may in the other place.
Senator Lewis: These commissions made recommendations. Can you tell us, without going into detail, whether Parliament actually fixes the remuneration?
Mr. Sandell: That is correct. That is a constitutional requirement in section 100 of the Constitution Act.
Senator Lewis: Can you tell us generally, then, were these three previous reports followed by Parliament?
Mr. Sandell: That is an excellent question. I can go right back to the first one. The 1983 commission, the Lang commission, which made a recommendation for a substantial salary increase, was followed in part. No commission has been followed totally, and some commissions have not been implemented at all. The 1983 commission, which recommended, among other things, a substantial salary increase, was implemented. The salary increase was implemented to some degree in Bill C-78, if I recall, of 1985, which increased judges' salaries, but not to the extent that the 1983 commission had recommended. I believe the increase was approximately half of what the 1983 triennial commission had recommended.
The 1986 commission, the Guthrie commission, recommended that judges' salaries be increased to $127,000 per year effective April 1, 1986. There is usually a two-year lag from when the commission actually reports until the legislation is implemented, and in 1988, Bill C-88 increased judges' salaries to the level that had been recommended by the Guthrie commission, but only effective April 1, 1988, not April 1, 1986, as the Guthrie commission had recommended. In fact, Bill C-88 phased in the judges' salary increase over a three year period, 1986, 1987 and 1988. It was 1988 legislation, but it had a retroactive component.
The Guthrie commission also made the recommendation that the surviving spouses of judges who either die in office or who die after retirement receive a 20 per cent increase in their survivors' annuities. That was not implemented.
The 1989 commission, the Courtois commission, recommended a salary increase. It also repeated the 1986 commission's recommendation to increase survivors' benefits by 20 per cent. The 1989 commission also made the recommendation that judges cease to contribute toward the cost of their pensions. Judges contribute at a rate of 7 per cent of their gross salary toward the cost of their pensions. Judges appointed prior to 1975 contribute at a rate of 1.5 per cent. The Courtois commission also recommended a salary increase and it repeated the Guthrie commission's recommendation of a 20 per cent increase with respect to survivors' pensions.
In December, 1991, following the 1989 Courtois commission, the government tabled Bill C-50. Bill C-50 did not include the salary recommendation of the Courtois commission, it did not include the recommendation that judges no longer contribute towards the cost of their pensions, but it did include the 20 per cent increase in survivors' benefits. Bill C-50 never got past first reading. It died on the Order Paper in September, 1993, with the dissolution of Parliament.
Senator Lewis: So the contributory provision still remains?
Mr. Sandell: That is correct. Judges still contribute toward their pension at the rates which were first implemented in 1975, which is 7 per cent for judges appointed after February 17, 1975, and 1.5 per cent for judges appointed before that date. The reason for that is that prior to 1975, judges did not contribute at all toward their pensions. In 1975, when the pension contribution provision was inserted in the Judges Act, those judges who were already on the bench were grandfathered and they were required to pay only 1.5 per cent, which was intended to be paid toward the cost of survivors' benefits as opposed to the judges's pensions themselves. Those judges not yet on the bench would be required to pay the higher rate of 7 per cent. As might be expected, the pre-1975 judges are becoming fewer and fewer as they retire. I would say that presently probably over 90 per cent of all federally appointed judges are paying at the rate of 7 per cent, and eventually, of course, that figure will be 100 per cent.
I have not completed my little tour of what happened to those commission reports. After the 1989 commission, Bill C-50 was tabled in December, 1991. The major provision of Bill C-50 would have been to increase survivors' benefits by 20 per cent. Bill C-50 died on the Order Paper in September, 1993.
After the 1992 commission, the Crawford commission, nothing has been tabled or implemented pursuant to that.
Senator Lewis: When you say tabled, do you mean there was no report?
Mr. Sandell: The report was tabled. The report was submitted to the minister and tabled in Parliament, but the government has not acted on any of the recommendations. Essentially, the recommendations were superseded totally by the freeze legislation. Judges' salaries have been frozen at the level that judges received on April 1, 1992.
Senator Lewis: Did the Crawford commission make any recommendations?
Mr. Sandell: Not with respect to salaries, no. The first freeze, if I can refer to it as the Mazankowski freeze since he was the Minister of Finance at the time, was imposed literally a week before the Crawford commission's scheduled hearings. It came as a surprise to both the judges and the commission, I might add.
In view of the freeze, the Crawford commission made the recommendation that when the freeze is eventually lifted, judges not be given any increase to make up for the years in which their salaries were frozen. I should put this in perspective. Under the Judges Act, there is a salary escalator clause. In normal times, in the absence of freeze legislation, on April 1 of every year, judges' salaries increase automatically by the percentage change in the industrial aggregate index of the year before over the year before that. In other words, on April 1, 1992, judges' salaries increased by the percentage change in the industrial aggregate index, which is published by Statistics Canada, of 1991 over 1990. That becomes the automatic salary increase on April 1, 1992. Due to the successive freezes, first the Mazankowski freeze and then Mr. Martin's freeze two years later, that automatic indexing provision with respect to judges' salaries has been suspended and remains suspended until March 31, 1997. That means that the next automatic increase that judges receive, all things being the same, will be on April 1, 1997. What the Crawford commission, the 1992 commission, recommended is that when that April 1, 1997 increase is implemented, there be no additional increase to make up for the years of the freeze.
Senator Corbin: No catch-up provision.
Mr. Sandell: Exactly, although when they made that recommendation, of course, there was only the initial two-year freeze, the so-called Mazankowski freeze, in force. It has since been supplemented by the two-year Paul Martin freeze.
Senator Lewis: You mentioned judges's salaries and an amount. I take that to be for puisne judges of superior courts.
Mr. Sandell: That is correct. I can give you a sheet which contains their salaries. These are the rates which were effective with the April 1, 1992 increase.
The salary of puisne superior court judges, which includes judges of all the provincial trial courts, provincial superior trial courts, provincial courts of appeal, the Federal Court of Canada and the Tax Court of Canada, which technically is not a superior court, is $155,800. The salary of a puisne judge of the Supreme Court of Canada is $185,200. The salary of the chief justice of the Supreme Court of Canada is $199,900.
Probably 95 per cent of all federally appointed judges receive $155,800 per year. Chief justices of provinces, of provincial superior courts, of the Federal Court and of the Tax Court of Canada and associate chief justices of those courts receive $170,600.
It is these salaries which, in the normal course, are increased on April 1 of each year by the percentage change in the industrial aggregate index. However, as I mentioned, that has been suspended until March 31, 1997.
Senator Beaudoin: You referred to the Valente case on the independence of the judiciary. One of the three elements put forward in the Valente case was the financial security of judges. I understand that the mechanism of those triennial commissions is within the framework of the processes to give financial security to judges, because it is relatively new.
Mr. Sandell: That is right. The amendment to the Judges Act was made in 1981. The first commission was in 1983.
Senator Beaudoin: So it is in the same line as the Valente case.
Mr. Sandell: That is right. I believe that the Valente decision came down in 1984-85 and Beauregard was 1985 or 1986.
Senator Beaudoin: Beauregard was on the question of the pension of judges. Pensions may vary from the date of appointment.
Mr. Sandell: The Beauregard case, which was brought by Mr. Justice Beauregard of the Quebec Court of Appeal, dealt with that 1.5-7 per cent split to which I referred earlier. The Beauregard litigation came about when the Judges Act was amended in 1975 to provide for judges to contribute to their pensions and, for reasons unknown to me, the legislation was made retroactive to the date the bill was tabled. The amendment to the Judges Act requiring pension contributions was actually enacted in December, 1975. For some reason, that statute was made retroactive to first reading, which was in February, 1975.
Mr. Justice Beauregard and others were appointed between February 1975 and December 1975, in other words, while the bill was still before Parliament. Because it was made retroactive to first reading, he was caught by the 7 per cent rule. That and the question of whether judges should be contributing to their pensions in the first place were the two issues which were dealt with by the Supreme Court of Canada in the Beauregard case. The Supreme Court of Canada said that the retroactivity provision to the date of first reading was constitutional and that the requirement that judges contribute to their pensions was also constitutional.
Senator Beaudoin: Do the triennial commissions deal with the salaries or the treatment of the judges and the pensions?
Mr. Sandell: Yes. Section 26(1) of the Judges Act says:
...not fewer than three and not more than five commissioners to inquire into the adequacy of the salaries and other amounts payable under this Act and into the adequacy of judges' benefits generally.
As far as the constitutional basis of that provision is concerned, section 100 of the British North America Act says:
The Salaries, Allowances, and Pensions of the Judges of the Superior, District, and County courts...shall be fixed and provided by the Parliament of Canada.
So that is the constitutional foundation for the entire Judges Act, in fact, and for the existence of triennial commissions. It is to provide advice to the government of the day as well as to Parliament. It is an independent, objective recommendation with respect to what judicial salaries should be, bearing in mind that judges themselves are not in a position to negotiate or bargain or lobby for their own salaries. They should not be doing so and should not be seen to be doing so.
Senator Corbin: Does the commission have a secretary?
Mr. Sandell: Yes, it does.
Senator Corbin: Where does he come from?
Mr. Sandell: The first commission, the 1983 commission, had as a secretary a counsel in the Department of Justice who was loaned to the commission. I was executive secretary of the 1986, 1989 and 1992 commissions.
Senator Corbin: Is that incorporated in the law or regulations?
Mr. Sandell: No. That has just been a matter of practise. The executive secretary of the current commission is an individual who has no connection with government who was requested to serve that function by Mr. Scott.
Senator Corbin: The commission is free to appoint its own secretary?
Mr. Sandell: That is correct, although this is the first commission that has not used a lawyer from the Department of Justice on loan to assist the commission in the capacity of executive secretary.
Senator Corbin: As a matter of course, are lawyers from the Department of Justice available or present as advisors, or are they there on request only?
Mr. Sandell: To the commission?
Senator Corbin: Yes.
Mr. Sandell: As I mentioned, in the past the Department of Justice has loaned counsel to the commission to serve as executive secretary. One of the reasons for that is that the responsibilities of the commission are so onerous that it was felt that the loan of a lawyer from the Department of Justice who was familiar with judicial affairs issues would assist the commission in completing its report within the six-month period. It might have been very difficult for those commissions to complete their reports without the benefit of justice counsel on loan in the capacity of executive secretary.
The current commission, the first of the five, is not using a justice lawyer, and is hoping that its mandate will be extended by six months. Although, if need be, it would and could submit a report by March 31.
Senator Corbin: Have people from organized labour ever been on any of the commissions?
Mr. Sandell: I believe so. Not on a triennial commission, but prior to the creation of triennial commissions there were three ad hoc committees.
One was chaired by Mr. Emmett Hall. One was chaired by Mr. Dorfman from Winnipeg. One was chaired by Mr. de Grandpré from Montreal. These committees were not created pursuant to legislation but were appointed on an ad hoc basis to study specific aspects of judges' salaries and benefits.
I can give exact dates. The Hall committee, chaired by Honourable Justice Emmett Hall, a retired member of the Supreme Court of Canada, reported in September 1974. The committee chaired by Irwin Dorfman reported in November 1978. The de Grandpré committee reported in December 1981.
These ad hoc committees, not appointed pursuant to legislation, were given terms of reference to deal with specific aspects of judges' remuneration, be it salaries or pensions or both. Because of the benefits derived from these ad hoc committees, it was decided that the creation of these commissions should be incorporated into the Judges Act in order to make them a mandatory part of the judicial compensation process. Organized labour representatives sat on at least one of these ad hoc committees.
To my recollection, there have been no labour representatives on any of the triennial commissions to date with one possible exception. I believe, on the last commission, in 1992, one commission member also sat on the board of the Ontario teachers' pension system.
Senator Corbin: You mentioned that the public can participate in these reviews. To what extent has the public participated in the past? How does the public know when a review is under way? Is it advertised? Are the views of the public obligatorily presented in writing? Are personal and oral submissions accepted?
Mr. Sandell: One of the first things a commission does upon appointment is to put a notice in the press right across the country. I have left copies of the reports of the last three commissions with the clerk of the committee. More are available. Each report lists the newspapers in which the newspaper notice has been published, exceeding 25 in number. Included are newspapers in both official languages in every province and every jurisdiction.
The notice is published in the newspapers inviting written submissions from the public and indicating that if the individual chooses to make an oral presentation at the hearing, they will be informed of the date and place of the hearing where they can make that oral presentation.
Written submissions are received from the public. The written submissions are always listed in an appendix to the commission report. There are not a great number of submissions from the public but there have been some with respect to every commission without exception.
Senator Corbin: Can you put a rough figure on that?
Mr. Sandell: There are usually fewer than six submissions from the public. There are invariably submissions from law societies or a federation of law societies, from provincial attorneys general, from the Canadian Bar Association, the Canadian Judicial Council and the Canadian Judges' Conference and other judges' groups.
Senator Corbin: I am talking about the person on the street, the ordinary Canadian citizen. I am not talking about the people who work in those specialized fields.
Mr. Sandell: I understand that. There have been, on average, fewer than six written submissions from the public.
Senator Corbin: Is the cost of advertising justified? We do it in the name of democracy, I am sure, but is it justified? That type of advertising does not come cheap.
Mr. Sandell: I realize that. It is felt to be necessary in the circumstances. There is no way of anticipating how many submissions there will be from the public in advance. I feel that it is a part of the public hearing process. There is no point in having a public hearing without notice to the public that these hearings will take place and that submissions can be made either in writing or orally.
Senator Corbin: We go through that ourselves from time to time, so I appreciate what you have said.
I should like to ask my colleagues -
[Translation]
I am appealing to my French-speaking colleagues for help here. The French version of subclause (1) says:
Dans les douze mois qui suivent leur nomination, les commissaires transmettent au ministre de la Justice du Canada un rapport assorti des recommandations qu'ils estiment utiles.
[English]
It reminds me of my youth when we used to go to the general store and ask for mixed candies, des bonbons assortis. Is that standard?
[Translation]
Senator Beaudoin: It is the standard wording in French.
Senator Nolin: The candy store was the one that was mixed up.
[English]
Senator Corbin: One final thing, I am not a lawyer, but how do you pronounce the word "puisne" in English? Is it pronounced the same as the word "puny" which has an entirely different meaning?
Mr. Sandell: Yes. They have different meanings, but I suspect they come from the same root.
Senator Lewis: In the 1989 report, a list of written submissions appears in the appendix. The last two listed are Terry Billings from New Brunswick and James Tkachuk from Alberta. I have asked my New Brunswick colleague if he knows Terry Billings, and he does not.
Madam Chairman, would you know James Tkachuk?
The Chairman: No, I do not. Perhaps our new senator, Senator Taylor, may know him.
Senator Lewis: These appear to be individuals.
Mr. Sandell: That is correct. Some submissions arrive in handwritten form, I might add. Some submissions may not be included in this list because they were deemed by the respective commissions not to be formal submissions as such. They were usually very critical of an individual judge before whom that particular submitter had previously appeared.
Senator Corbin: Perhaps they were postmarked from some penitentiary.
Senator Nolin: It was not my intent to get into the salaries of judges, but in the document provided by you to my office yesterday, for which I thank you, is a full list of the salaries with some footnotes. Why is that federal subvention of $2,000 per annum paid only to federal court judges and tax court judges and not to other judges?
Mr. Sandell: The $2,000 subvention for federal and tax court judges is a trailer to the $3,000 subvention paid by the provinces.
Senator Nolin: Not all the provinces. I am not aware that the province of Quebec pays money to federal judges.
Mr. Sandell: That is correct. A provision under the Judges Act states that the provinces can pay superior court judges an additional subvention to a maximum of $3,000 per year for purely provincial work such as surrogate court work. This provision has been in the Judges Act for many decades. Only three provinces pay that subvention - Ontario, Alberta and Saskatchewan. Ontario ceased paying the subvention about three or four years ago, when the Rae government was in power, although they grandfathered all those judges who were on the bench at the time. All judges appointed to the Ontario Court General Division or the Ontario Court of Appeal subsequent to 1992-93 no longer receive the $3,000 subvention from the Ontario government. The general division and court of appeal judges on the bench before that date continue to receive the subvention. The provinces of Alberta and Saskatchewan both continue to pay it to all newly appointed as well as existing judges. That is provincial money.
Senator Nolin: That $3,000 is there because some provincial jurisdictions assume that those federal judges are performing provincial responsibilities.
Mr. Sandell: That is correct.
Senator Nolin: Why the $2,000 for the Federal and Tax Court judges?
Mr. Sandell: That is a very good question. I do not really know the answer to that question. I can give you an unofficial response.
Senator Nolin: Are they presuming provincial responsibilities?
Mr. Sandell: No, they are not. It was felt that since some provincial superior court judges were receiving a subvention that it was proper that federally appointed superior court judges also receive a subvention. It is less than the $3,000.
Senator Nolin: I know.
Mr. Sandell: It is federal money, not provincial money.
Senator Nolin: It is federal money, and some provinces are not granting the $3,000.
Mr. Sandell: It applies only to judges of the Federal Court and the Tax Court, not to the Supreme Court of Canada.
Senator Nolin: It was intended to be fair, but it is not.
Senator Lewis: You referred to the provinces and that some of these judges might have to attend surrogate courts. As I understand it, the Federal Court judges and the Tax Court judges do a bit of travelling.
Mr. Sandell: That is right. The Federal Court, both the trial division and the appeal division, as well as the Tax Court, are itinerant courts. They travel across the country. In fact, the last time I appeared before the Federal Court was in Corner Brook, Newfoundland.
Senator Nolin: However, they are filing expense reports, and they are reimbursed.
Mr. Sandell: Their travel expenses are reimbursed by the Commissioner for Federal Judicial Affairs.
Senator Nolin: I have another question which goes back to the problem of costs. Senator Corbin raised the question of the secretary of the commission. They are hired. Do they work under a fixed budget, or do they file a cost sheet? Are they paid whatever costs they send you? Are they doing their job within a specific budget that will not be extended because their mandate is extended?
Mr. Sandell: You indicated that they send their bills to us; they do not send them to the Department of Justice. The costs are paid entirely by the Commissioner for Federal Judicial Affairs, which is separate from the Department of Justice.
Mr. Guy Goulard is the current Commissioner for Federal Judicial Affairs. When he knows that a triennial commission year is approaching - and of course that is predictable because it is 1983, 1986, 1989 and so on - he asks for slightly more in his annual estimates, in anticipation of having to pay the costs of that triennial commission. The basis of that estimate is the costs of the previous commissions. The extra amount he requests in his annual estimates is quite moderate. To date, no commission has approached $100,000. In fact, most are substantially less than half of that.
There is no fixed budget because this is an independent commission. The commission is appointed by the Minister of Justice. It is on its own once it is appointed. It can hold hearings across the country if it chooses, or, as has been the practice in only one city, usually in Ottawa, it can meet 100 times or it can meet 10 times in the course of a six-month mandate.
The pattern of the commissions has been fairly consistent. They meet perhaps a dozen times in the course of the six-month mandate. They hold a lot of conference calls. They hold hearings which usually last one-and-a-half to two days on average in facilities which are free. The last two commission hearings were held in the Conference Centre at no cost to the commission.
The pattern has been fairly consistent. No fixed budget is set prior to or at the time of the appointment of the commission. Being an independent commission, it would probably be difficult to do. The pattern of costs has been fairly consistent, usually in the mid-range of five figures.
Senator Nolin: I understand your answer. However, we now have a new pattern. The secretary of the commission is from the private sector.
Mr. Sandell: The secretary also works part time.
Senator Nolin: I understand that, but I have some difficulty. I accept your word that there will be no increase in costs. I can understand that they can not do their work during the first six months and the need to have a period of 12 months. Even if the figures are not large, there is still the possibility of inflation in the cost of the commission. Even though you are telling us that there will be no increase, I am not so sure.
Mr. Sandell: There could be. It is not anticipated. I can not say absolutely and categorically that the Scott commission will not cost a penny more because its mandate has been extended. Any increase will be absorbed out of the existing budget of the Commissioner for Federal Judicial Affairs.
Senator Nolin: At the end of the day, it is still money paid by the public. Even if it is only $50,000 a year for six months, it may double.
Mr. Sandell: I doubt very much that it will double. Having worked as executive secretary of three commissions, I know how they function and that, for example, they do most of their work on weekends and statutory holidays. They meet in the offices of one of the members.
What is most likely to happen with the six-month extension is that the whole process will be less compressed. It will not necessarily meet more frequently. They will just be able to breathe before actual sessions.
Senator Nolin: I will take your word for it.
Mr. Sandell: You make a valid point, senator, but certainly no increase in costs is anticipated in firm, anticipatory terms. It is conceivable, but any increased costs will be absorbed by the Commissioner for Federal Judicial Affairs.
No new money would be requested as a result of the extension of these commissions from six months to 12 months.
Senator Nolin: I take your answer, but if there was to be no extension of six months, the current budget of the judicial commissioner would have lapsed money at the end.
Mr. Sandell: Which may not lapse because of this extension.
Senator Nolin: We understand each other very well. You should tell the secretary to advise the commission that the extension does not mean more money.
Mr. Sandell: I might add that for many of these commissioners, the work is tantamount to pro bono work on behalf of the Government of Canada. There have been commissioners in the past who have not accepted the per diem. I know that all of the current commissioners, without exception, are taking less than the amount which they were offered, and they were offered substantially less than that which is paid to legal agents. These are lawyers and business people of very great prominence, and the amount of money they receive for a full day's work on commission work, which is usually on a weekend or statutory holiday, is virtually pro bono work on behalf of the Government of Canada.
Senator Bryden: How much is it? What is the per diem?
Mr. Sandell: The per diem is currently $500 per day. For counsel of the stature of David Scott, that is really a pittance, quite frankly.
Senator Bryden: I am part of his union too.
Mr. Sandell: That is $500 per day, not per hour, of commission work.
Senator Bryden: Would the work of the commission and the costs of the commission be subject to audit by the Auditor General?
Mr. Sandell: Certainly the budget of the Commissioner for Federal Judicial Affairs is subject to audit. The commissioners' law firms, in the case of lawyers, submit bills to the Commissioner for Federal Judicial Affairs for payment of say three days' per diem at a rate of $500 per day. All those bills would be maintained by the office of the Commissioner for Federal Judicial Affairs and therefore subject to audit.
Senator Bryden: Is the executive secretary paid at the same per diem?
Mr. Sandell: No, I do not believe so. The current executive secretary, the first one who is not doing it for free, is a retired vice-principal of Carleton University. He is also doing it part-time. He works out of the offices of the Commissioner for Federal Judicial Affairs. I am not certain what his per diem is, quite frankly. I know what it is for the commissioners; I do not know what it is for the current secretary. It is the first time that a secretary has been paid. As I mentioned, all of the previous secretaries were Justice lawyers.
Senator Bryden: I share Senator Nolin's concern. Currently, it is a tough market for lawyers. There are more lawyers than there is work.
Senator Nolin: More lawyers than there are commissions.
Senator Bryden: Absolutely. As I say, being part of their union, it is very difficult for the public in some instances to accept that members of the legal profession, which for the most part form the majority on these commissions that are reviewing and establishing the salaries of positions to which most of them aspire, is totally objective. I have a concern about the old adage that work will expand to fill the time that is available. If you only have six months, they can only charge 182 days maximum. If you have a year, they can charge 365. I know some of the people you have mentioned, such as Purdy Crawford, who, I do not believe, is a lawyer.
Mr. Sandell: He is.
Senator Bryden: However, he has made an honest living as a businessman for most of his life. I think it is a legitimate concern. It would be interesting to compare the costs of this commission, given inflation and so on, to the $46,000 that it cost in 1989. We are now up to the maximum number of commissioners, I take it, which is five.
Mr. Sandell: Currently there are only three commissioners.
Senator Bryden: That is better. It is of some concern. The fact that it comes out of some departmental budget is the same as me getting a notice that says, "Spend what is left of your discretionary budget before the end of March because otherwise it will be gone." I feel no obligation to do that. It is of concern and it should be carefully watched. It is good that the expenditures of the commission are subject to audit by the Auditor General.
Mr. Sandell: Your point is well taken, senator. I should add in defence of commissioners generally that when approached by the minister, they are invariably reluctant to assume this responsibility. They have to be dragged kicking and screaming to become a commissioner of a triennial commission. They do it with extreme reluctance. The money means nothing to them. As I mentioned, some commissioners in the past have refused to even submit per diems. The money is not the reason they do it. It is the last thing on their mind. Quite frankly, they would prefer not to be even involved. They do it out of a sense of responsibility and out of a sense of contribution to the very important principle to which they are all committed, the independence of the judiciary.
Certainly no commissioner that I have ever met on the three commissions on which I worked had the least interest in the monetary aspect of serving as a commissioner. In fact, it cost them money because it takes them away from their billable hours, or it takes them away from their day job. They work on weekends, invariably. The reports give the dates when the commissioners actually met or held conference calls. If you look at the dates when they actually met, I would suggest to you that 75 to 80 per cent of those dates are on weekends and statutory holidays.
Senator Lewis: Can you tell us how many of the commissioners over the years who were lawyers have subsequently been appointed judges?
Mr. Sandell: None on the 1983 commission, although there is a member of the 1983 commission who is presently a part of this institution. Mr. Paul Martin was a member of the 1983 commission. One member of the 1986 commission became a judge in the Quebec superior court. On the 1989 commission, one member from your home province, senator -
Senator Lewis: I noticed that.
Mr. Sandell: - became a judge. None of the 1992 commission members have become judges.
The Chairman: Yet.
Mr. Sandell: The lawyer members of these commissions are usually quite prominent within the profession. They are quite often either the current or former managing partners of large law firms. For example, Mr. Crawford was formerly managing partner of Osler Hoskin. Generally they are lawyers who are usually consulted by the minister with respect to who should be a judge, as opposed to wanting to become judges themselves. However, there have been, as I mentioned, those two instances.
Senator Corbin: What is the rationale behind a triennial review rather than a four-year review, as in the case for members of Parliament, for example? It seems to me that that comes with some frequency and adds to the costs.
Mr. Sandell: From what I understand, it was the decision of the Minister of Justice at the time, who is now the Prime Minister. He was the Minister of Justice when the Judges Act was amended to create triennial commissions. The ad hoc committees that preceded the triennial commissions were, more or less, held on a three- or four-year basis, and it was decided that three years would be reasonable. That is my understanding, although I was not in the department at that time.
Senator Corbin: Has it proven to be satisfactory?
Mr. Sandell: Yes, it has, bearing in mind that nothing of the last two commissions has been implemented. These are non-binding recommendations. I might add that it would, quite probably, be unconstitutional to have a binding recommendation. Because of the provision in section 100 of the Constitution giving Parliament the authority to fix and provide salaries, it would probably be unconstitutional for Parliament to be bound by the recommendation of some outside board or commission with respect to judges' salaries and allowances. That is for Parliament to determine.
The Chairman: Thank you for your presentation.
Is it the will of the committee to deal with the bill now?
Hon. Senators: Yes.
The Chairman: Could I have a motion from someone that Bill C-2 be reported to the Senate without amendment?
Senator Lewis: I so move.
The Chairman: Is it agreed?
Hon. Senators: Agreed.
The Chairman: It is unanimous. I will report it this afternoon.
The committee adjourned.