Honourable senators, this item stands adjourned in the name of Senator Martin, and I ask for leave of the Senate that, following my intervention, the balance of her time to speak to this item be reserved.

Is leave granted, honourable senators?

So ordered.

Honourable senators, I rise today to support Bill S-219, An Act to establish Judicial Independence Day.

On June 10, Senator Moreau gave his first speech in this place to thank us for making him feel welcome, to tell us about his background and to express his interest in working with us all. He also spoke of his love of the French language, the role of the Senate and the importance of judicial independence. After all, his life partner is a highly respected judge.

Being an astute observer, he then said the following:

The separation of powers is the foundational principle of that independence in that it guarantees the impartial treatment of citizens before the courts and in dealings with the state. Like the rule of law, judicial independence guarantees human dignity and respect for human rights. It enables judges to resist all outside interference.

However, under the influence of fear, exacerbated populism, dehumanization or individuals greedy for absolute power, democracy is retreating.

Unfortunately, you don’t have to go far to see that happening; just look south of the border. There, over the past few months, members of the U.S. administration have described federal district judges across the U.S. as “‘left-wing,’ ‘liberal,’ ‘activists,’ ‘radical,’ ‘politically minded,’ ‘rogue,’ ‘unhinged,’ ‘outrageous, overzealous, [and] unconstitutional,’ ‘[c]rooked,’ . . .” and even worse things that I will not quote.

Moreover, in attempts to intimidate members of the U.S. judiciary, frivolous proceedings have been initiated by the administration against sitting state and federal judges. Let me give you one example. In May of this year, Chief Judge George L. Russell III of the United States District Court for the District of Maryland issued two standing orders prohibiting federal immigration officials, for two business days, from removing any alien detainee who had filed a petition for a writ of habeas corpus with his court.

“Habeas corpus” is a Latin expression that basically means, “Bring me the person.” It is one of the most fundamental rights in common law countries, which requires an authority to bring a detainee before a judge to determine whether the detention is legal.

Chief Judge Russell was concerned that without such orders, many of the petitioners would be transferred to detention facilities outside the state of Maryland, maybe Florida, or even removed from the U.S. before a judge had the opportunity to consider their claims of illegal detention.

Instead of appealing this order, the Department of Homeland Security filed a civil claim against the chief judge and the 15 other judges in the district seeking a declaration that the orders were a direct assault on the department’s absolute authority to police immigration matters and enforce immigration laws. It sought an injunction to invalidate the orders and send a message to the judges.

On August 26, a federal judge from a different district dismissed the claim on the basis of judicial immunity, a necessary component of judicial independence. In his conclusion, quoting an appellate judge, the judge wrote:

A reciprocal respect for the roles of the Executive and the Judiciary may be too much to hope for in this most fraught and polarized of times, but it remains the only way that our system of constitutional governance can ever hope to work.

Unfortunately, in Canada, we have recently witnessed a series of attacks against the judiciary. At best, this reflects a misunderstanding of the role of the judiciary. At worst, it is an alarming attempt to galvanize resentment and contempt for our constitutional system of governance.

In such a context, Bill S-219, though short and simple, provides a welcome opportunity to reflect on what judicial independence means and underscore its significance to all Canadians.

In simple terms, an independent judge is one who is free to decide a case based only on the facts and the law and is, therefore, free from any influence from government, media, organized groups or any other outside parties.

As Senator Moreau put it, judicial independence “. . . enables judges to resist all outside interference.”

Colleagues, this is an important point: Judicial independence exists for the benefit of all Canadians, not the judges themselves. It serves important social goals, summarized by the Supreme Court as follows:

One of these goals is the maintenance of public confidence in the impartiality of the judiciary, which is essential to the effectiveness of the court system. Independence contributes to the perception that justice will be done in individual cases. Another social goal served by judicial independence is the maintenance of the rule of law, one aspect of which is the constitutional principle that the exercise of all public power must find its ultimate source in a legal rule. . . .

Senator Moreau addressed this point in the following terms back in June:

The separation of powers is the foundational principle of that independence in that it guarantees the impartial treatment of citizens before the courts and in dealings with the state. Like the rule of law, judicial independence guarantees human dignity and respect for human rights. It enables judges to resist all outside interference.

In 1986, in Beauregard, Chief Justice Dickson explains that the courts are not charged solely with adjudicating individual cases, but also act as:

 . . . protector of the Constitution and the fundamental values embodied in it—rule of law, fundamental justice, equality, preservation of the democratic process, to name perhaps the most important. In other words, judicial independence is essential for fair and just dispute-resolution in individual cases. It is also the lifeblood of constitutionalism in democratic societies.

In practice, judicial independence has two dimensions.

On an individual level, judges must have adjudicative independence. This is the judge’s ability to decide a case based on the evidence and the law alone, free from fear or favour.

On an institutional level, the courts must enjoy independence from the executive and legislative branches of government when it comes to matters of administration, which bears directly on its judicial function.

As former Chief Justice McLachlin wrote in 1989:

. . . the judiciary, if it is to play the proper constitutional role, must be completely separate in authority and function from the other arms of government.

In fact, our constitutional order is premised on this separation of powers.

Judicial independence has its historical origins in the traditions we have inherited from the United Kingdom, including the English Act of Settlement of 1701.

In 1997, former Chief Justice Lamer of the Supreme Court wrote:

Judicial independence is an unwritten norm, recognised and affirmed by the preamble to the Constitution Act, 1867. In fact, it is in that preamble, which serves as the grand entrance hall to the castle of the Constitution, that the true source of our commitment to this foundational principle is located.

Since the Supreme Court has acknowledged that judicial independence is largely an unwritten constitutional principle in Canada, perhaps all the better that we write it down in our calendars, as Bill S-219 proposes.

The importance of judicial independence has long been recognized in international law. For example, the Universal Declaration of Human Rights states in Article 10 that “Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal . . .” when facing criminal charges. It is also recognized in the International Covenant on Civil and Political Rights adopted by the United Nations in 1966, which states in Article 14 that “. . . everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.”

Recognizing January 11 as a day to mark judicial independence will signal to the public, and to the international community, that judicial independence is deeply valued in Canada. Why this day in particular? No, colleagues, it is not an attempt to compete with Sir John A. Macdonald Day, which recognizes a lawyer and a drafter of our federal Constitution — resting on various principles that include the independence of the judiciary.

As the preamble to Bill S-219 states, this date is being proposed in order to commemorate the following:

Whereas, on January 11, 2020, tens of thousands of people, including hundreds of judges from 22 European countries, took part in the “1,000 Robes March” in Warsaw to express their opposition to attacks on judicial independence in Poland;

There may have even been thousands of judges. We know that Poland is still grappling with these kinds of issues.

As Senator Moreau pointed out, this demonstration took place after the Polish parliament sought to repeal the principle of job security for judges. In other words, judges whose rulings were not to the government’s liking could be dismissed. The protest was triggered by this so-called “gag law,” which prohibited judges from reviewing court composition under penalty of dismissal.

This movement may remind some of us of the 2007 events that took place in Pakistan when President Pervez Musharraf suspended Chief Justice Iftikhar Chaudhry out of concern that the latter might challenge the former’s efforts to retain power. Widespread protests by lawyers in gowns, opposition parties and citizens eventually led to the Chief Justice’s reinstatement by the President. Events like this show that citizens care about judicial independence.

Further to the events in Poland, the International Association of Judges, which has observer status at the United Nations, formally requested that the United Nations commemorate the “1,000 Robes March.” Bill S-219 will achieve that in Canada.

In conclusion, judicial independence is something to be both protected and celebrated. I hope you will join me in supporting the adoption of Bill S-219 at second reading in the coming weeks in order to send it to committee before the year’s end.

Thank you. Meegwetch.

With pleasure.

I’m sorry, Senator Batters. Senator Dalphond, your time has expired. Are you asking for more time?

I’d be happy to answer a question from Senator Batters.

Is leave granted, honourable senators?

Thank you for this excellent question.

Judicial independence has many components. One is the security of tenure, which is that you have been appointed and cannot be removed unless you’re impeached by Parliament; both houses have to vote on a motion to impeach you. That is protected in section 99 of the Constitution Act. It was designed to be a full protection.

The second thing is that the Constitution also provides that judges are entitled to a salary to be voted upon by both houses of Parliament, so it is guaranteed that they will be paid. The Supreme Court has interpreted this rule as meaning that the salary should be sufficient to attract good people — that’s what the law says — and also to ensure that they are devoted to the job and that they will do it independently.

The Supreme Court has said that, in order to guarantee this, the judges cannot negotiate with the government. That would become difficult, because the judges decide so many cases involving the government. So if the government granted them an increase in salary, those favoured judges would give more convictions — or the contrary: If they don’t get the increase in salary, they will seek to punish the government. So the Supreme Court has said that we need an independent mechanism through which judges and the government will present their arguments before a neutral panel, and that neutral panel will come up with a report that would propose things or not.

This process was followed, and, in July, this independent commission proposed that judges’ salaries be increased by $28,000, and they explained why. The judges were asking for $60,000, and the commission came out with this recommendation.

They also acknowledged the fact that the salary is indexed every year based on the industry average.

That being said, the next step was for the government to respond to that report, which they did on Monday. The government said they refused that proposal from the commission. Now it’s up to the judges to decide if they accept that response or if they challenge it via a constitutional challenge before a court.

I don’t know what the current president of the association will do or what the board of directors will do, but it’s up to them to decide if they want to challenge this or accept it, considering the whole set of circumstances that the country is going through.

The Supreme Court has said that judges could have their salary affected by measures that affect all of the public service, but measures that would target judges and not the rest of the civil service would be seen negatively by the courts as a sign that the judges are not treated properly. That would be considered a breach of judicial independence and the guarantees that come with it.

So if you’re providing a substantial increase to the salary of the Canadian Armed Forces, you have to explain why you’re not providing a minimal increase to the judges. We’ll see what happens with the civil service. In a few minutes, we’ll know the government’s perspective on the future of the civil service and the —

Senator Dalphond, your time has expired. Are you asking for more time to finish your answer to Senator Batters’ question? I know that Senator McPhedran also has questions for you. Are you asking for additional time to respond to Senator Batters and Senator McPhedran?

This is a subject I know well, and I would be happy to talk about it. If my colleagues are willing to listen to me for longer, I’d be happy to do so.

Is leave granted, honourable senators?

I will finish replying to Senator Batters, then.

This justification by the government is a justification —

— that appears to me to be weak, but there are other justifications in the answer. There are many aspects in that government answer. When you balance all these things, some decisions will have to be made. I’m not the one who is going to decide on behalf of the judges. I’m not sitting as a judge anymore, but I would say that it’s not a black-and-white answer to your question.

It’s full of nuances. Some parts of the answer are a rehashing of the arguments that were made before the commission, and this is not good. We have to say that the commission considered the uncertainty of the U.S. situation and made the proposal.

Other arguments made by the government in the report are what I would characterize as rational arguments. The tests for the court to decide if the answer is constitutionally valid would be simple rationality. Maybe it meets the test; maybe it doesn’t meet the test. I leave it there. If somebody wants to hire me, I would be pleased to assist. I’m joking.

It’s a question that calls for nuances, so I can’t give you an easy answer because it needs more thinking.

Thank you very much, Your Honour. I very much appreciate the recognition.

I have a question for you, Senator Dalphond, which comes out of an experience I had a few months ago. I was a member of an international delegation of parliamentarians, and we were in the halls of Congress and the Senate in Washington. I was truly shocked to see a poster outside the congressional office of a Republican senator, which was taller than I am, and wide, with photos of judges, calling them names, none of which were the least bit respectful, and calling for their impeachment.

I found myself wondering about parliamentary privilege in this context. I realize that’s not the focus of this bill, but we are seeing some signs from certain parliamentarians of clear messaging of contempt — not just disrespect — of major institutions that uphold our democracy in this country. Do you have any thoughts on this vis-à-vis judges and attacks on judges by parliamentarians?

I haven’t seen these posters, but I guess it’s a lineup of the usual suspects; so after police lineups — a parliamentary lineup now.

This is quite regrettable, but, as you know, in the U.S., a federally appointed judge can be impeached with the same procedures as those used to impeach a president. Over the years, some judges were impeached. It doesn’t happen very often, but it does happen.

Certainly, when I look south of the border, I pray that our leaders in this country will not follow this track and that they will be respectful of what has made this country a peaceful country, a country of respect, where the rule of law is complied with, which comes with the independence of the judiciary and respect for the work of judges. If they are not happy with some of those judgments, it’s part of the rules that they can amend the law.

Things were said about the judgment of the Supreme Court last week on pornography and its support for pornography. You have to read the judgment to understand that this is not what the judgment says. This is not something that Parliament cannot fix. If you find something that doesn’t fit the Charter of Rights, it’s up to the government to fix it. You don’t even have to use the “notwithstanding” clause to fix it, but I invite people to read the judgment before commenting on it and to inform themselves about what it means and also what it means to be respectful of what is sometimes the last rampart in a democracy, which is the courts.