JURI Committee Meeting

STANDING COMMITTEE ON JUSTICE AND HUMAN RIGHTS

COMITÉ PERMANENT DE LA JUSTICE ET DES DROITS DE LA PERSONNE

EVIDENCE

[Recorded by Electronic Apparatus]

Monday, May 11, 1998

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[English]

The Chair (Ms. Shaughnessy Cohen (Windsor—St. Clair, Lib.)): Today we're dealing with Bill C-37, an act to amend the Judges Act and to make consequential amendments to other acts.

We have appearing today the Honourable Anne McLellan, Minister of Justice and Attorney General of Canada. Accompanying her are George Thomson, Deputy Minister of Justice, and Judith Bellis, who is senior counsel in the judicial affairs unit.

Welcome. I suspect you have a statement to begin.

[Translation]

The Hon. Anne McLellan (Minister of Justice and Attorney General of Canada): Yes, Madam Chair.

[English]

I thank you for inviting me again to the committee. It's always a pleasure to be here.

I'm going to make some opening remarks on the context and background of Bill C-37 and on what we as a government are proposing and hope to achieve in Bill C-37.

Mr. Peter MacKay (Pictou—Antigonish—Guysborough, PC): I have a point of order I'd like to bring to the committee.

I mentioned this to you earlier, but once again, we're faced with a situation— With all due respect to the minister, we are extremely happy when you come to our committee, but in the smaller parties—and I can't speak for Mr. Mancini—we have one justice critic.

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As the minister is aware, a very important bill, the DNA data bank bill, is being debated next door in the Chamber. Thus we're in a real conflict position. This is the second time this has happened. It happened last week as well with your colleague, the Solicitor General.

So I want to put my dismay on the record. I know it's difficult. We have a very busy schedule at this committee, but it's certainly unfortunate when we're faced with this dilemma.

The Chair: Thank you.

Mr. Bellehumeur.

[Translation]

Mr. Michel Bellehumeur (Berthier—Montcalm, BQ): When the Solicitor General appeared before us last week, I said it was somewhat unacceptable to play that game. You don't need to have 20 members of Parliament in that situation. All 44 members of the Bloc Québécois would like to follow this matter as seriously as possible. But our critic cannot be at two places at the same time to work on similar files.

This is the second time an important bill is tabled in the House of Commons while the Minister is here. I think closer attention should be paid to schedules and they should be reviewed in depth to find out what is going on. I think that is a problem right now. We must ensure it does not happen again.

[English]

The Chair: Mr. Mancini, ditto?

Some hon. members: Oh, oh!

Mr. Peter Mancini (Sydney—Victoria, NDP): You're so good at anticipating.

I would have to concur with my friends. I would put on the record it's just fortunate that Monsieur Bellehumeur, Mr. MacKay, and I are so intellectually astute that we can run from one to the other and keep up with all the pieces of legislation. But I would have to concur, in seriousness, with my colleagues.

The Chair: Mr. Ramsay, same thing?

Mr. Jack Ramsay (Crowfoot, Ref.): Pretty well, although we have three seats on this committee, and we're not nearly as disadvantaged as my colleagues who've just spoken.

It is very difficult to do justice to our witnesses today, particularly the minister, who's taken time out of her schedule to be here, while at the same time doing justice to this very important bill being debated before the House.

So I echo the concerns, and I don't know what we can do about it, Madam Chair, but it poses a real conflict for us. It doesn't allow us to do the job we're here to do.

The Chair: I'd like to complain as well, because I'd like to be in the House working on that DNA bill.

Ms. Anne McLellan: Just let me go and you can go to the House.

Some hon. members: Oh, oh!

The Chair: I'd like to be a lot of places, but unfortunately the agenda we have, which is that we deal with four major areas of government policy or subject matter, is such that there's just no way around it, unless of course colleagues want to work with me on a way to lighten the load a little bit on everyone. I'd be happy to do that, but until I get some cooperation in doing that, we're just going to carry on.

Today is the day the minister had clear, and it was a day we had clear to go on with this bill.

Peter, I got your note in the House. I frankly didn't look at the House schedule to see what was up when I scheduled this meeting. I'll try to be more sensitive to that in the future, but I don't know where I'm going to get extra time, unless it is to force our staff to work evenings, weekends, and that sort of thing. My bias is against that. I'm not inclined to do that. I'm more inclined to make speeches on how little they get paid for what they do already, which I've done three times in the last week.

Mr. Peter MacKay: Well, Madam Chair, I appreciate that, and we've obviously made the priority decision to be here for the minister, but the point is that the scheduling lies very much in the hands of the chair. I realize there is a very heavy docket to work with, but with a minister and an important piece of legislation, there must be a way to work around that. There must be.

The Chair: Well, I'm sure that if a representative of each party sat down with me and really wanted to work it out, we could.

Mr. Peter MacKay: I'd be prepared to do that any time.

The Chair: I'll try to find a time to call a meeting.

All right then. Minister, go ahead.

Ms. Anne McLellan: Thank you very much.

Before outlining the specifics of the proposed amendments to the Judges Act, I would like to put this bill in context for colleagues.

I have recently taken the opportunity to express my views on the importance of the judiciary as one of the foundation institutions of our democracy. Since 1982 Canadian judges have been asked to assume increasingly demanding constitutional functions, determining issues of fundamental importance to all Canadians.

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I am the first to recognize that in doing their jobs, judges and their decisions are not always popular. It seems to me that this is inevitable given that we, the legislators, give them the sometimes unenviable task of determining some of the most difficult and divisive legal, social, and economic issues of our time. It is for this very reason that we do not want popular judges. Indeed, it is and always has been a primary importance to all Canadians that judges are independent and free to make those difficult and sometimes unpopular decisions.

It is the principle of judicial independence that provides the foundation for a strong and courageous judiciary. As has often been said, judicial independence is the cornerstone of our democratic society, a principle clearly reflected in and protected by sections 96 through 100 of the Canadian Constitution.

On September 18, 1997, in Re the Independence and Impartiality of Judges of the Provincial Court of Prince Edward Island, the Supreme Court of Canada reiterated that financial security for judges is a constitutional requirement established precisely to ensure public confidence in the independence and impartiality of the judiciary. In 1981, in recognition of the importance of judicial independence and the unique constitutional role of the judiciary, Parliament provided for an independent commission to examine the adequacy of judges' salaries and benefits.

[Translation]

In its recent ruling, the Supreme Court of Canada stressed the importance and the need to have these independent commissions restore public confidence in the independence and impartiality of Canada's judiciary. An important aspect of that decision is to require the government to publicly justify its decision to not implement or to partially implement a commission's recommendation.

[English]

The most recent triennial commission, headed by David Scott, QC, heard from a range of organizations and individuals, including all the provincial and territorial Ministers of Justice and Attorneys General, before putting forward a thoughtful and comprehensive set of recommendations. I invite the members of the committee to read the Scott report, if you have not already done so. Let me say that the report is lucid, straightforward, and I think worthy of all parliamentarians' consideration.

This government continues to support the principles that led Parliament to institute the judicial salary commission process 17 years ago. In light of those principles and of the enhanced constitutional role of independent salary commissions following the Supreme Court decision, we have given serious consideration to all of the recommendations of the Scott commission. It was not unexpected that the issue that has evoked the greatest interest since the response was released and Bill C-37 was introduced is the proposed judicial salary increases.

The Scott commission recommended an appropriately phased upward adjustment of 8.3% on the expiration of the salary freeze on April 1, 1997. There seems to have been some misunderstanding on this point in the second reading debate, and I want to emphasize that the Scott recommendation was for prospective increases only from April 1, 1997, six months following the delivery of the report. This proposal is therefore consistent with the government's view that it would be unreasonable for the judiciary to not share in the necessary restraint that was exercised from 1992 until very recently by all Canadians paid by the federal government.

I want to express my strong agreement with a statement by the former Chief Justice of Canada, the Honourable Brian Dickson, in a seminal decision on the issue of financial security for judges, Beauregard v. Canada, when he observed that “Canadian judges are Canadian citizens and must bear their fair share of the financial burden of administering the country”.

This view is echoed in the recent decision of the Supreme Court of Canada, where the chief justice, the Honourable Antonio Lamer, observed that:

Nothing would be more damaging to the reputation of the judiciary and the administration of justice than a perception that judges were not shouldering their share of the burden in difficult economic times.

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Still, as I have said elsewhere, I think Canadian judges are entitled to receive fair compensation that reflects both the importance of their role and the personal demands of their office.

In deciding what was reasonable, the Scott commission, in my view correctly, recognized that a complex range of factors must be considered in establishing an appropriate level of remuneration, including the need to ensure levels of compensation that attract and keep the most qualified candidates for judicial office.

I think it is also worth noting that the federal government is not alone in recently providing for judicial salary increases. A number of provincial governments across Canada have responded to the recent Supreme Court decision by providing salary increases to their judiciary. Indeed, in some cases retroactive adjustments have been made to restore earlier reductions and freezes. While we are not prepared to consider such a step, the government is prepared to implement the Scott recommendation by providing a phased-in increase to judicial salaries of 4.1% per year over two years, effective April 1, 1997.

Bill C-37 would also implement the Scott commission recommendation for certain pension-related amendments to the Judges Act, including the rule of 80, which will permit retirement when the sum of a judge's age and years of service equals at least 80 and the judge has served on the bench for a minimum of 15 years. The Scott commission had considered but rejected a more generous option that would have allowed retirement when the combined age and years of service reached 80.

In our view, the proposed rule of 80 responds in an important way to the changing demographic profile of the judiciary. More and more judges are being appointed at a younger age, and many of these younger judges are women. The current provision, although based on the rule of 80, requires a minimum age of 65. A judge who retires before 65 has no right to a pension at all. A judge appointed at the age of 50 can retire with a pension at 65 with 15 years of service, but a judge who was appointed at 40 must serve 25 years to receive any pension at all, a situation that is increasingly considered unfair.

This situation is even more unacceptable when we consider that it has a particular impact on women judges, who constitute the majority of those appointed at an early age. The rule of 80 would allow older, long-serving judges to retire when they feel they no longer wish to continue in the role. Permitting this will be good for them and for the court itself as an institution.

The Scott commission has proposed a different retirement option for the judges of the Supreme Court of Canada and recommended eligibility for retirement with a full pension after serving a minimum of 10 years on the court. The government agrees with the commission that the immense workload and heavy responsibility inherent in membership on that court justifies the proposed retirement provision. However, the government proposes to limit it to those judges who have reached the age of 65 years.

The bill would also make a couple of other changes to judges' pensions in the interest of fairness. It will allow common-law spouses to receive surviving spouses' annuities, and it will give a judge who marries after retirement the option of receiving an actuarially reduced pension that continues until the judge and spouse have both died. These are both common features of other pension plans. The common-law provision in particular is an equality issue that recent jurisprudence suggests is overdue for inclusion in the act.

While the government has given serious consideration to the Scott commission recommendations, we are not prepared to accept them all. For example, the commission recommended that the current government-paid life insurance coverage for judges be brought more closely into line with that provided to deputy ministers. However, there are serious and complex issues that require further consideration before the government can respond to this issue, including equity issues arising from the potentially disparate impact on younger, again mostly female, judges of the resulting increased taxable benefit.

While there has been some discussion of the range of approaches to this issue, fuller consideration of this and other options is required. This may be an issue that would be appropriate to refer to the new commission, once established, for further study and recommendation.

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A very important part of Bill C-37 is improvements to the judicial compensation commission process designed to reinforce the independence, objectivity, and effectiveness of the process as a means of further enhancing judicial independence. The Supreme Court of Canada, in its decision of last September, set out guidelines for such process improvements. In order to be independent, commission members must enjoy security of tenure by being appointed for a fixed term, and the judiciary must nominate a member. To be objective, a commission must use objective criteria in coming to its recommendations, and to be effective governments must deal with the commission's recommendations with due diligence and reasonable dispatch.

That having been said, the Supreme Court expressly allowed that the details of the institutional design should be left to the executive and the legislature, and jurisdictions should be free to choose procedures and arrangements that are suitable to their needs and particular circumstances.

In our proposed design, the length of time between commissions would be extended from the current three- to a four-year period. The new commission would conduct an inquiry similar to that conducted by previous commissions, including public hearings and inviting submissions from all those interested in judicial compensation, including the public. Since there appears to have been some misunderstanding of the nature of the commission, I want to clarify that now.

I want to point out that while this will be a permanent commission in the sense of having a mandate for a fixed period of time, the members of the commission would be part-time only. As a general rule, members will only be active during the first nine months of each four-year period until their report is delivered. Furthermore, the members would only receive per diem fees for that time they are actually performing commission business. The commission would have nine months to complete its inquiry and to submit a report to the Minister of Justice. To provide flexibility, the period to report could be extended on agreement of the minister and of the judiciary.

The exception to the general nine-month period of activity would be when the minister decides to submit a matter to the commission for its inquiry, as permitted under these proposals. This provision would allow for changes to judicial compensation to be made, where necessary, between the fixed four-year timeframes. This is necessary in light of the new constitutional requirement established by the Supreme Court that future changes to judicial compensation cannot be implemented without prior consideration by a judicial compensation commission. This power to refer matters might also occasionally be used to have a more detailed and informed consideration of particularly complex policy issues.

The independence of the commission would be enhanced by our proposal that it would have one member nominated by the judiciary and one member nominated by the Minister of Justice. The representatives of each side would in turn nominate a third member who would be the chair. Members would be appointed by the Governor in Council for a fixed four-year term on good behaviour, removal for cause. Terms could be renewed once, on renomination.

The bill also includes a proposal that the Minister of Justice be required to respond to a report of a salary commission. I should point out that the government's proposal for a response differs from the Scott commission recommendation in two important ways.

First, our proposal would have the minister respond within six months, rather than three, in order to allow the time necessary to give careful consideration to commission reports. Second, the government cannot accept the Scott recommendation that a bill be tabled within a specified period of time. Control of legislative priorities and the agenda of the House is the prerogative of the government and should not be fettered by inflexible time constraints.

The role of Parliament in reviewing the commission recommendations has also been preserved in the continuation of the current requirement that the report of the judicial compensation and benefits commission be tabled before both Houses of Parliament.

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I would like to spend a brief moment talking about the importance of dealing with these process proposals in a timely manner in Parliament. The Supreme Court of Canada granted a stay of its September 18, 1997, judgment until September 18, 1998, in order to allow all governments to make the necessary changes. In doing so the court has recognized the practical realities involved in making these necessary legislative amendments.

It also recognized the potentially disruptive impact on the administration of justice across Canada if the new requirements were to apply immediately. However, in granting the stay, the Supreme Court of Canada cautioned that:

—this suspension should not be viewed as a license to delay compliance with the constitutional imperatives set out in the Provincial Court Judges Case.

I am well aware of recent suggestions that the courts are somehow overreaching by imposing timeframes or deadlines on legislatures in the exercise of their law-making powers. However, I think it is important to reflect on what the courts are doing when they agree to grant a stay of a finding of a breach of the charter or the Constitution, as they have in this case. They are in fact allowing for continuing breaches of the fundamental constitutional rights and protections of Canadians that the courts are charged with protecting.

It is to give Parliament a chance, as in this case, to tailor the law in question in the way it thinks most appropriate within the constitutional framework. The court is rightfully mindful, as we should all be, that such breaches should not be allowed to continue for any longer than is absolutely necessary in the public interest. I think it is therefore important that all efforts are made to ensure passage of the amendments to the Judges Act contained in Bill C-37 prior to September 18, 1998.

Another key element of Bill C-37, which appears to have secured widespread support across party lines, provides for the largest ever expansion of unified family courts in Canada. This broad support is natural and welcome since unified family courts are widely recognized to be responsive to widespread concerns that the family law system is too slow, confusing, and expensive, and intensifies and prolongs the degree of family conflict. Delay, conflict, and confusion arise in large part because of jurisdictional overlap and the traditional emphasis on courts and litigation to resolve family issues.

Unified family courts reduce these problems by enabling a single judge to hear all family matters under both federal and provincial law. Unified family courts also provide access to an array of services that promote durable, mutually agreeable solutions to family law disputes and improve the long-term outcomes for children and their families.

I am therefore very pleased that the level of funding provided in the 1997 budget will permit the appointment of 24 additional judges to unified family courts. The cost will be $4.4 million, ongoing, to support the salaries and benefits of federally appointed judges. Three other positions are currently available under the Judges Act, for a total of 27 new unified family court judges. Invitations were extended to all jurisdictions, and provincial interest in unified family court expansion has been high.

I have announced allocation of judicial resources for four provinces seeking them at this time: Newfoundland, Nova Scotia, Saskatchewan, and Ontario. The other provinces and territories either have completed the implementation of unified family courts, do not intend to adopt the unified family court model, or are beginning to consider it for the longer term.

Since I've talked for a considerable period of time, I hope we're all aware of the substantial benefits of the unified family court. Just let me move to the conclusion of my prepared comments so that we can get onto comments and questions from the members of the committee.

In conclusion, these amendments that I have outlined will serve to strengthen what is already one of the best judicial systems in the world, by enhancing the independence of our courts and improving access to justice. The improvements to the judicial compensation process will ensure continued public confidence in the independence of our judiciary. Increased judicial resources for unified family courts, combined with provincial commitment of support services, will improve the way our courts respond to families and children in crisis.

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An increase in court of appeal judges, which I did not refer to but know members are aware of, proposed in the bill, will improve access to justice generally. I hope we can look forward to the support of all members in moving these important amendments to the Judges Act quickly through Parliament to the benefit of all Canadians.

I thank you for your attention. Merci. I look forward to your questions.

The Vice-Chairman (Mr. John Maloney (Erie—Lincoln, Lib.)): Thank you, Madam Minister.

I think we'll go to eight-minute rounds.

Mr. MacKay, may I call on you first.

Mr. Peter MacKay: Thank you, Mr. Chairman, and thank you, Madam Minister, for being here. I certainly agree this is a very important and timely piece of legislation. We in the province of Nova Scotia are very pleased we're proceeding with this unified family court. If you're still taking nominations, I'd like to nominate Mr. Mancini—

Ms. Anne McLellan: You think what? You're going to win that seat?

Mr. Peter MacKay: Anything's possible.

Madam Minister, you mentioned the Scott report and referred to it throughout your remarks. I'm wondering whether copies of it will be made available to the committee.

Ms. Anne McLellan: They should be made available to the committee. It was tabled, so I would think all members should have copies of it.

Oh, they're right there.

Mr. Peter MacKay: Great, that's terrific.

With respect to the Scott committee itself, can you tell us what sort of consultation took place with representatives of the judiciary? In the future the commission will be looking for feedback and input from the judiciary, so I wonder how it will be addressed.

Ms. Anne McLellan: I'm going to have Judith respond to that in more detail, but as I mentioned in my comments, the commission works very hard to ensure it hears from a broad cross-section of interested Canadians. That of course includes the judiciary itself.

Keep in mind we are dealing with federally appointed judges here only. Generally, federally appointed judges, through their conference, appoint a group of people to represent them and to develop, in conjunction with all federally appointed judges, the proposal and the submission they would make before the commission.

I have, for example, met with the group of judges who were appointed by their fellow judges to carry their message forward to the commission. Obviously after the commission presents its report to me and I table it, they will have the opportunity to come and speak to me about some of their concerns.

I am actually very proud this government is able to respond to this report. We have had two previous triennial commissions, and governments did not respond. I think people can imagine the frustration of those who have acted in good faith. Judges themselves have made submissions, and they have received no formal response to previous triennial commissions. I'm therefore very pleased our government is acting in what I believe to be a reasonably expeditious fashion in response to the Scott commission.

Judith, is there anything in more detail you want to say about how the judges— I think, Mr. MacKay, you were particularly concerned about—

Mr. Peter MacKay: Present consultation and a future consultation.

Ms. Judith Bellis (Senior Counsel, Judicial Affairs Unit, Department of Justice): Perhaps I can refer to appendix A of the Scott commission report, which sets out, among other things, the membership, the terms of reference, and the steps the Scott commission itself took to publish public notices of the hearings it held.

As part of appendix A you will see a copy of the notice that was published in newspapers across Canada. There is a list of the submissions that were received by the commission in appendix B.

This is an outline of the approach this commission took in the past.

The Canadian Judges Conference, the judges' association to which the minister has referred, made quite an extensive written submission to the commission, which was of course part of its consideration, and oral submissions to the commission as well.

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Mr. Peter MacKay: Can you indicate to the committee the number of judges who responded to this? If I'm to understand you correctly, surely this notice to the public wasn't meant to attract judges. There must have been some direct correspondence with the judges.

Ms. Anne McLellan: If you look in appendix B, those who made submissions, you'll see the Canadian Judges Conference, which represents all federally appointed judges in Canada.

As I said, they appoint a representative committee, which then meets with their judges. Then they come before the commission and make their representations on behalf of all federally appointed judges.

The Canadian Judicial Council does the same thing on behalf of chief justices in Canada.

What you have there are the two organizations that in one way or another represent all federally appointed judges in this country.

Mr. Peter MacKay: In my reading of the report, there's also a slight difference between the salaries of appeal judges and those of trial judges, at the Supreme Court level. Is there some accounting for that?

Ms. Judith Bellis: The salaries for the regular, puny judges have always been slightly less than the salaries for the court of appeal and the Supreme Court of Canada justices, but the proposed increase is 8.3%. That would of course increase the salaries of the court of appeal judges, so there would continue to be a salary differential. The 8.3% applies across the board on the base salary.

Mr. Peter MacKay: So no consideration was given to levelling it so that all Supreme Court judges, appellant and trial, were at the same level?

I understand what you're saying: the salaries are staying the same; the increase has been applied uniformly.

Ms. Anne McLellan: Exactly. I'll see if I'm wrong, but wasn't a submission made, perhaps on behalf of some appellant judges, that suggested consideration be given to a salary increase for them? It was not pursued by the Scott commission.

Ms. Judith Bellis: It was not pursued. The chief justices of the trial court and the appeal court have a higher salary than the puny judges. The puny judges of the courts of appeal receive the same salary as trial court judges of the superior courts, if that's your point. It continues to be the case, and there was no recommendation it be changed.

Ms. Anne McLellan: Peter, it may be possible a future commission might want to return to that, but, as I think the Scott commission pointed out, it would reflect a pretty significant change in the culture surrounding our courts and the way we view judges, be they appointed to the court of appeal or the trial court.

Certainly there's nothing to prevent a future commission from receiving submissions on it. If court of appeal judges in any province or generally wanted to make that argument, they could do so before a commission. A commission would deal with it then.

Mr. Peter MacKay: Okay.

My understanding is that when this future commission is struck, it would again report through you or through the minister at the time rather than directly to Parliament. If so, is there a reason for doing this?

Ms. Anne McLellan: No, the report is tabled before both Houses of Parliament. I see that as a very important protection, if you like, for the work of the committee and for the independence of the judiciary. That report must be tabled before both Houses of Parliament.

Ms. Judith Bellis: It must be tabled within 10 sitting days. There is a time requirement, and it's not an option for the minister to—

Ms. Anne McLellan: Sit on it. Not that I would ever want to do that—not often.

Mr. Peter MacKay: Thank you, Mr. Chair.

The Vice-Chairman (Mr. John Maloney): Mr. Mancini.

Mr. Peter Mancini: Thank you, Mr. Chairman.

Minister, there are a couple of issues I would like to talk about.

First is the judicial compensation commission. The make-up of the commission to review salaries in the future will be, I understand, three individuals: one nominated by the judiciary, one from the minister, and one selected between the two of them.

Was any thought given and were any recommendations made, particularly by the Canadian bar society, to have someone represent the bar society on that commission? I preface that by saying if anybody knows how hard some judges work and how hard some don't work, it would be members of the bar who appear before the judiciary on a regular basis.

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I'm just wondering if a suggestion was made by any of the bar societies. I don't know that. If not, was consideration given by the government to increasing the numbers on that commission to include representatives of the bar society?

Ms. Anne McLellan: We did not consider the possibility of expanding the commission beyond the three I have indicated.

Obviously the Canadian Bar Association, representing the vast majority of practising lawyers in this country, as you've pointed out, is a very important voice. Like past commissions, the commission and any future commissions will certainly take very seriously the submissions made by the Canadian Bar Association to the committee.

We did not recommend, as you can see, in this legislation their inclusion as a member of this commission. We feel the number three is a convenient number administratively. You have one representative of the government, one of the judiciary, and an impartial third member who will serve as chair. As you are well aware, that is a very common method by which one appoints various kinds of panels, boards, and commissions.

Mr. Peter Mancini: Okay. The methodology for input from the bar society would be to the commission.

Ms. Anne McLellan: That's right.

I do understand. My deputy has just reminded me that David Scott, who was the chair of the Scott commission, is coming before the committee on Wednesday. Certainly feel free to ask Mr. Scott whether they had received any submissions from the CBA or any of the provincial law societies regarding membership on any future commission and whether it should include the Canadian Bar Association or any other group that represents lawyers—a representative from the Federation of Law Societies or whatever the case may be.

Mr. Peter Mancini: I'm going to move to a second point. I'm looking for some information here.

The unified family court, as I think you've indicated, is supported by all parties. My concern and the comments I made in the House at the time of the initial introduction of this bill have to do with the method of appointing judges. It's something that's been raised in the House on numerous occasions, and you've always indicated a willingness to discuss it and be open to it.

I note that in Nova Scotia, for example, my own province, eight new justices are going to be appointed to the unified family court. Will they come from the existing family court benches? If so, is there a method of appointing those judges outside the normal scope, or will it be done directly by ministerial discretion?

Ms. Anne McLellan: We hope to appoint up to 75% of those new judges from existing, sitting provincial court judges. It will be important to work closely with the chief judge of the provincial court—the chief justice in Nova Scotia's case, the trial division—the provincial Attorney General, and the federal Attorney General to ensure we identify those provincial court judges presently serving in family court who clearly to all of us are the best on the basis of experience, repute within the community, and that sort of thing. It would be those judges who have distinguished themselves and about whom there would be no question that they have distinguished themselves through their previous work on the provincial bench.

The other 25% would be appointed by us, the federal government, again through our normal selection—judicial committee, selection process, consultation with provincial AGs, chief justices, input from anyone who wishes to provide me with input, members of the public, etc. We would then make those appointments for the other quarter to the new UFC.

That is the process used in the past in the province of Ontario, with their first tranche of expansion. It seemed to work reasonably well, but I'm always open to other suggestions.

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Mr. Peter Mancini: Mr. MacKay made a good suggestion earlier. It was a good suggestion.

Ms. Anne McLellan: I happen to have an application for him right here.

Mr. Peter Mancini: I do want to say, perhaps in a serious vein, I think there is concern, not widespread concern, in this country about the whole methodology of the appointment of the judiciary, and I'll go on record as saying I'm not one who favours an American-style elected judiciary.

In Nova Scotia we do have a process of application and interview by a standing committee to take into account all kinds of criteria. I see this bill as an opportunity to delve into that or to explore it, and we haven't done it. Can we foresee something like it in the near future?

There are some goods things in this legislation. I said that, and I'm being quite truthful here, but I also think we missed an opportunity while amending the Judges Act to not go a little bit further in that direction. My concern is we will now put this on the shelf and say we've amended the Judges Act once, let's not revisit it for a period of time.

Can you give me some indication of when we may look at revisiting it, in that specific area?

Ms. Anne McLellan: I am always open to suggestions as to how the judicial selection process can be made more transparent and effective in identifying the very best candidates for service on the federal courts in our country.

I think the previous government in 1987 or 1989 changed the process, and changed the process for the better. Then my predecessor, Allan Rock, refined it further.

Up until then the process was ad hoc, I think fair to say fairly secretive, with not much order or method to it. The previous government, to their credit, put in place in every province and territory judicial selection committees. Those committees have members representing those groups of individuals, including lay people, we would all expect to see represented there. Anyone who wants to become a judge and meets the constitutional requirements—for superior court judges it's a minimum 10 years before the bar—can apply to those committees and can have their applications considered.

I know you went through quite a detailed discussion of this the other day, when Mr. Goulard was here. I think when people understand where we came from in 1987, and how far we've come over the past 10 years, in putting in place a process that is regularized and one in which there is a higher degree of transparency— I'm not going to pretend here that members of the public can go to these committees and listen in on the committee's deliberations, because we all treat confidentiality as a key component of those committees and the work they do when someone applies. One has to treat that application with the confidence it merits and with respect and with dignity.

I am one, and I make no secret of the fact, who has no time for and will never support the circus that has become the judicial appointment process in the United States. It discredits the judiciary. It discredits, as far as I am concerned, our tradition of impartial and fair administration of justice. I am therefore fully open to other possibilities in taking the judicial selection committees and making them work better. I was pleased that Mr. Goulard asked this committee to make some recommendations to me, or to himself or the Prime Minister, on how those committees could work better.

I am very pleased we have the committee. It has regularized the process. Anybody who wants to become a judge knows there is an application process. They know their application will be dealt with.

I also want to point out that my colleague Allan Rock made further changes to the committees in 1995, ensuring that there was lay representation on those committees. I believe now three out of seven members represent the public, and that's very, very important.

When I receive recommendations for appointment to these committees, I take them very seriously in terms of making sure we have, as lay representatives, people who have credibility in their local communities, people who have strength and vision, and people who will make clear the views of the public as opposed to the views of the professionals and the elite who are represented by the law society, the judges, and the CBA.

• 1620

The Vice-Chairman (Mr. John Maloney): Thank you, Mr. Mancini.

Just as a comment, the reports Mr. MacKay was looking for were in your binders, which were delivered to your offices on Friday.

Mr. Bellehumeur.

[Translation]

Mr. Michel Bellehumeur: Indeed, Madam Minister, when the commissioner for federal-judicial affairs appeared before this committee, I was surprised at how many lawyers applied to be a federal superior court judge. I was also surprised at the percentage of recommendations. There are in fact three categories of applicants: those without any recommendation, those with average recommendations, and those that are highly recommended. Despite that screening, I was surprised to see so many that were "highly recommended".

My point is that those who apply to become judges of a superior court know how much judges earn. All these members of the bar know that federal judges currently earn between $163,300 and $208,200 for the chief justice of the Supreme Court of Canada.

You are here today to sell us a good part of your bill, which deals with increasing judges' salaries, by saying these poor judges must be paid more. If we want to have competent and impartial judges, their salaries must be increased. One could therefore conclude that since 1992, all those wanting to become judges were either incompetent or unable to be impartial.

So, Madam Minister, let's talk about what has been happening since 1993 in Parliament: we've seen cuts in transfer payments, health, social assistance, in anything you want, in employment insurance. At the same time, in some province, public servants' and judges' salaries have been cut, by 4.2% in Quebec over the past few years. Every department is being asked to make an effort. Some departments must cut some vital programs in order to control their expenditures.

Now, here you are telling us that you want retroactive pay for just a small part, namely 4.2% as of April 1, 1997, and 4.2% from April 1, 1998. That means, Madam Minister, an increase of $13,500 for a poor judge earning only $162,300 per year. As for the poor chief justice of the Supreme Court of Canada, who earns only $208,200, his increase would be $17,500.

Madam Minister, I must say I do not agree with you at all that superior court judges' salaries should be increased, especially for the reasons you mentioned. Give me some other reasons, Madam Minister. I do not buy your argument that an increase is required to have competent, impartial judges, regardless of what the Scott report says, because we know those are just reports. There was also the report from the task force studying parliamentarians' salaries. To my knowledge, we will not be receiving a salary increase, which I think is fair.

So give me another argument besides competence and impartiality, because right now, we have extremely competent judges that are very impartial in their ruling and in the work they do. When they apply to become judge, they know what salary to expect.

[English]

Ms. Anne McLellan: The primary reason is the one I've outlined, Mr. Bellehumeur, which is the independence of the judiciary, a fundamental principle of our constitutional structure.

It has been made very plain. It is a constitutional principle in this country that a key part of the independence of the judiciary is an independent mechanism by which salaries—salaries, benefits, and compensation generally—can be established for judges. It seems to me it is a principle that is so obvious. To have Parliament, for example, sitting around debating what the salaries of judges should be speaks to the kind of political pressure that can be brought to bear on judges, and we must avoid that at all costs. It's a hallmark of our system, in fact, that our judges are independent from that kind of unacceptable political pressure.

• 1625

Therefore, for me, the mechanism by which we have moved forward—we're enhancing it even further in this proposed bill—to ensure and guarantee that independence is through a commission. So it's not me who tells David Scott that he thinks judges and the members of his commission should receive this or that. They hear submissions from a wide range of people. They look at the overall economic circumstances. They decide, based on that, what they think would be fair and reasonable compensation for these people who do play a unique role in our constitutional framework.

I make no excuse for the fact that Mr. Scott and his commission have recommended the salary increases that are before you and that we, as a government, believe it's important for us to accept those recommendations as part and parcel of maintaining the independence of the judiciary in this country.

The other thing I have said—I'll repeat it again here—is that I don't think talented men and women who choose to serve their country on the bench should be penalized because they're judges. Think about the fact that their comparison group, if you like, are senior deputy ministers within the Government of Canada when you look at education, experience, responsibility, and skill set. And in fact, judges are not paid more than that comparison group within the federal public service. In fact, in some cases, judges will still be paid less.

So we're not talking about a proposal that speaks to, I think, overpaying a group of people. I think what we're speaking to is a mechanism and a recommendation that helps maintain the independence of the judiciary and that prevents undue political influence over their means to support themselves and their families. I do believe that the Scott recommendations that have come through this process—this process is now a constitutional requirement—are fair and reasonable in all the circumstances.

Keep in mind that judges were frozen, as everybody else was, in 1992. That freeze was not lifted until April 1, 1997, and there is no retroactivity here. We are talking about prospective salary increases, unlike some of the provinces that chose to retroactively compensate judges for freezes that were imposed. We are not doing that, and I make no apologies for that either.

[Translation]

Mr. Michel Bellehumeur: You say there will not be any retroactivity. This is 1998. If you go back to April 1, 1997, that would be half true. Is that correct, or am I mistaken?

[English]

Ms. Anne McLellan: No, the Scott commission report was tabled six months before. It was tabled in late 1996. In fact, the recommendation was prospective for April 1, 1997.

I would be the first to say that yes, time has gone by, and I think the government can be criticized—we have been by Mr. Scott and others—for not acting more expeditiously in relation to this matter. But the recommendation was made in the fall of 1996, and it is clearly prospective only.

[Translation]

Mr. Michel Bellehumeur: Madam—

[English]

The Vice-Chairman (Mr. John Maloney): We've run out of time, sir.

Mr. Ramsay.

Mr. Jack Ramsay: I'd like to thank our minister and her colleagues for being here.

I would like to get in a few questions in the eight minutes I have. Then I have to excuse myself and go back to the House for a debate on Bill C-3.

Would you tell the committee what you believe the consequences would be if we do not meet the time line imposed upon this bill by the Supreme Court of Canada?

Ms. Anne McLellan: As I've outlined in my remarks, I think it's important for all of us to try to meet that time line. I think the Supreme Court is sensitive to the fact that their decision, if immediately applicable and enforceable, would create great difficulty.

Keep in mind, Mr. Ramsay, as I'm sure you know, that the decision in the fall referred to three provincial courts, not federally appointed courts, of this country: Alberta, Prince Edward Island, and Manitoba. They recognized that if their judgment was immediately enforceable, as most judgments are from the day they are rendered, it would create a very difficult circumstance in the administration of justice for those three provinces.

• 1630

Mr. Jack Ramsay: What are the consequences?

Ms. Anne McLellan: Well, in fact what the court found in relation to those provincial court structures was that basically the fundamental principle of the independence of the judiciary was not being observed and had been undermined, which would call into question everything those judges had done for as long as they'd been sitting under that particular provincial legislative regime. That is very, very serious for the integrity of our judicial system.

Mr. Jack Ramsay: Okay, and that's a point I would like to address.

Ms. Anne McLellan: On that point, if I may just be allowed to finish, the Supreme Court should be congratulated for acknowledging that fact and providing a one-year stay so that all levels of government could respond to what the Supreme Court said in that reference case and we could all get our houses in order. That's why I think it's important for us to act in a timely fashion.

Mr. Jack Ramsay: Well, that's the issue I'm concerned about in this bill, and that issue is simply this. If the governments of Canada do not respond in terms of pay and benefits, under any scenario in the future, it can be judged to be an interference in the judicial independence of the courts. That's what the Supreme Court of Canada's decision tells me. If that is the case, then I think we are on the edge of a slippery slope, because directly or indirectly, the courts can then impose upon the governments for benefits and salaries.

When I read the judgments I have a great deal of concern. I feel there is an enormous conflict of interest when judges rule on matters in which they have a vested interest, either directly or indirectly, and I read the minority opinion in that particular case that produced and motivated this bill.

Do you have no concern about that? If Federal Court judges at any level do not receive what they consider to be a fair and just compensation—a raise in pay or whatever—are you not concerned that that can be construed as an interference by the government in question into their judicial independence?

Ms. Anne McLellan: Mr. Ramsay, people have to understand what the court talked about here. What it talked about was the importance of an objective and independent process by which, among other things, their compensation, but also other attributes of the independence of the judiciary, would be determined. In fact, that's what we have done and that's what we are enhancing today in Bill C-37. It's the process. It's not the outcome that the court is speaking about. They're not saying you have to pay us 5%, or 6%, or 8%. They are saying independence of the judiciary speaks to a process—an objective process. That's what we have had, that's what the Scott commission was, and what we are doing is enhancing certain aspects of the process.

I have no idea what the next commission or the commission after that will recommend in terms of salary. Nor does any judge. But my guess is that the judiciary and the government will accept that, unless there's some patently unreasonable aspect to the independent commission's deliberations, which would lead us not to accept it.

Mr. Jack Ramsay: What are the consequences, though? I think the consequences are clear, if a provincial or federal government over the years chose not to accept pay hike recommendations. Would that not be construed as interference into the judicial independence of that particular court?

Ms. Anne McLellan: Previous governments have refused to respond to two commissions, and in fact—

Mr. Jack Ramsay: With respect, not since this decision.

Ms. Anne McLellan: That is true, and since that decision it's become clear. The court clarified for all of us—provinces and federal government—the incidence and the attributes of a commission and its independence that would be required in this area to meet that basic requirement of not undermining the independence of the judiciary.

• 1635

There are different components of the independence of the judiciary. There are institutional components; there are personal components surrounding compensation in terms of employment, and these were all elucidated for us in previous jurisprudence by the Supreme Court of Canada.

You're right that in the fall the court helped us understand what the incidence of an independent commission should be. They're not telling us what the commission should decide. In fact, I applaud the court for saying that one of the factors a commission should take into account is the overall economic circumstance in the larger society, so that if we are facing a recession in which we all must sacrifice, then a commission should reflect that in some way in any kind of recommendation for compensation they make.

I think the court has helped us in terms not of setting out concrete criteria perhaps, but by providing some information as to various criteria that could be used by a commission and talking about the institutional attributes of that commission to ensure its independence.

Mr. Jack Ramsay: Yes, I understand the process, but the process is designed to produce a result. I'm suggesting that if that process does not produce the result that is indicated within the Supreme Court's decision, it could be considered an interference with the judicial independence of the court.

Ms. Anne McLellan: Indeed, I think there is a clear possibility that if one established the independent commission, and if there was a recommendation surrounding compensation that was made, and it appeared to be reasonable—

Here's another thing you need to keep in mind. We can offer reasonable justification for not accepting a recommendation. That justification has to be made before the courts, but we can make that justification. This is not take it or leave it. I could, if I so chose, make the argument that the recommendation from the commission is not reasonable in all the circumstances, is not justified. I could make my arguments in regard to that and have a decision on that point.

Mr. Jack Ramsay: But it doesn't have to accept that argument.

Ms. Anne McLellan: You're quite right, Mr. Ramsay, if what you're saying is that at the end of the day, when push comes to shove, and if I arbitrarily rejected a recommendation and individual members of the judiciary chose to take me to court and the Government of Canada to court, or if someone else, defence bar or somebody, chose to take me to court on the basis that I was undermining the independence of the judiciary by refusing to accept the recommendation—yes, that could happen. I would make my justification for so doing. It could be rejected by the court. Ultimately, that would have to be deliberated upon by the Supreme Court of Canada.

Mr. Jack Ramsay: Those are my questions. Thank you.

The Vice-Chairman (Mr. John Maloney): Thank you, Mr. Ramsay.

The bells are a quorum call, for those who are concerned.

Mr. Lee.

Mr. Derek Lee (Scarborough—Rouge River, Lib.): Thank you.

Madam Minister, I'd like to address the numbers, to start out, anyway, just so the record is clear on the proposed salary increases here.

As I read the numbers in the bill and in the press release, it appears to me as though the increases for 1997 and 1998 will be 2.1% plus 4.1% in one year; and 2.08% plus 4.1% in a following year. I added them all up and I got 6% plus 6%, cumulating to give me about 13%. In the end, have I got those numbers roughly correct, that over two years it will be roughly 12%?

Ms. Anne McLellan: You have an industrial aggregate, which was available to judges. That was obviously frozen in 1992. That was reinstated as of April 1, 1997. Then we have the Scott recommendations. Mr. Scott clearly took into account both the industrial aggregate plus his recommendations of the 4.1% and 4.1% prospectively for 1997 and 1998.

Those proposed salary increases are not unreasonable when you look at the salary increases that are now available to senior public managers in the federal public service.

• 1640

Mr. Derek Lee: Okay. I wasn't getting at the reasonableness; I was just trying to get the number. And what is the number then?

Ms. Anne McLellan: You have it. It's the industrial aggregate.

Mr. Derek Lee: So that's 2% plus 4%—

Ms. Anne McLellan: It was 2.1% on April 1, 1997 and 2.08% as of April 1, 1998.

Mr. Derek Lee: Okay, so I have roughly 12%; that's close?

Ms. Anne McLellan: Yes.

Mr. Derek Lee: Okay.

I don't have any problem with using what Canadians call the cost of living or the industrial aggregate, which we use around here sometimes, as a salary increase for 1997 and 1998. In fact I think salaries of MPs around here will be influenced 1.5% to 2%, roughly, with the same so-called industrial aggregate. But if in fact the recommendation of the commission was prospective, where did the 4.1% plus 4.1% come from? What is it tied to? Can you tell us what that's tied to? Because it certainly isn't tied to any industrial aggregate.

Ms. Anne McLellan: No, the industrial aggregate is a separate component of this.

Mr. Derek Lee: Where does the 4.1% and 4.1% come from?

Ms. Anne McLellan: I would suggest you ask the commissioner, Mr. Scott, when he appears before you on Wednesday, because he is the one who heard all the submissions. But it would seem to me, in light of the kinds of salary increases that are available to senior public servants starting April 1, 1997, that is in no way out of line with those increases and with the judges comparator group. Whether Mr. Scott used that comparator group and other things, I do not know; that is something you should ask Mr. Scott.

Mr. Derek Lee: Okay. Someone around the table here will get around to doing that, I'm sure.

Ms. Anne McLellan: George Thomson, my deputy, wants to speak.

Mr. George Thomson (Deputy Minister of Justice): I might just say that in the report, the commission looked at a range of factors, and they're listed in the report. They looked at the length of the freeze and overall decided this was what they felt was a reasonable increase in light of the period of time when both any salary adjustments and the industrial aggregate were frozen.

Mr. Derek Lee: I'm puzzled then. If the freeze wasn't relevant, why is it a factor? If all public servants, everybody getting paid from the fisc, as the finance minister calls it, had to submit to the freeze for five years, why isn't that over and done with and out of the way?

Ms. Anne McLellan: We're now looking forward prospectively.

Mr. Derek Lee: All right, so we'll find out what the prospective 4.1% plus 4.1% prospectively is?

Ms. Anne McLellan: Yes.

Mr. Derek Lee: It looks like a wonderful prospect. It might even be usable around this place.

Ms. Anne McLellan: Actually, Derek, I don't know. I hate to point out my good deputy here, but on that 4.1% increase in each of two years, 1997 and 1998, I come back to the point: if you look at their comparator group in terms of ability, skill, expertise, education, responsibility, and expected performance outputs, in fact those who are comparable in the senior ranks of the public service are receiving substantially more than that.

Mr. Derek Lee: Okay, and here you're making general reference to what I see in the briefing notes is the DM-3 level or range for higher-ranking public servants. Okay.

Now I want to talk about the effect of the Supreme Court decision on the provincial judges matter, and I'm seeking the attitude of the government on this. I can understand why the courts felt it necessary to recommend, even impose, a framework for dealing with this, because not to do it left the door open to some potentially unfortunate dynamics. So they have recommended a framework.

I am uncomfortable with a framework that would impose upon this House, the House of Commons, an obligation to respond in a macroeconomic way, or a macro-envelope way, to the recommendations of a so-called independent commission. I don't have a problem with the micro, with saying that over the last couple of years or in the forthcoming few years, our judges' salaries and benefits need to be adjusted to maintain a certain level. I regard that as a micro-adjustment.

• 1645

But if this House, as it is constitutionally capable of doing and charged with doing, were to make a decision that everybody in government should have their salaries reduced by 50%, I would have great difficulty accepting that judges as a group would be immune from that. I don't see in the Supreme Court judgment any recognition of the role of this House and of the Senate in making that range of decisions, the more macro-type decisions.

Ms. Anne McLellan: Derek, I don't read anything in the Supreme Court judgment that suggests that judges as a class are exempt from those kinds of micro considerations. If what you're talking about is, for example, the kind of situation that was faced through the fiscal mismanagement of the previous government, if one were dealing with the kind of situation where because of that and because of the general recession afoot in the land, it was seen that everybody had to do their bit—and I come from a province where that was the case; the federal government imposed such a freeze—the court is very plain that they are not suggesting judges should be immune to that.

In fact I quoted from the judgment of Chief Justice Lamer and also from the previous Chief Justice Brian Dickson, where they make it very plain that it would be unacceptable to exempt judges from what I think you're describing, if I understand it correctly, as the macroeconomic setting in which those kinds of decisions are made.

So if everybody gets frozen, then nobody, least of all the Supreme Court of Canada, is suggesting they shouldn't do their share, nor would I ever suggest that any superior court judge should not do his or her share if it were felt that we had to return, because of unexpected circumstances, to that kind of economic austerity. But I have every confidence in the good sense of this government and the economic management of this government, and therefore I'm sure we won't have to resort to those kinds of draconian measures.

The Vice-Chairman (Mr. John Maloney): Mr. Lee, we'll be back on the second round.

Mr. Hilstrom, a five-minute round, please.

Mr. Howard Hilstrom (Selkirk—Interlake, Ref.): Thank you.

Derek, you're certainly covering some good ground there. My concern also is with the total independence of a judiciary that isn't answerable to anybody. Certainly this seems to set that out.

Did the rest of the frozen public service have a pay raise effective 1 April 1997, as the judges did?

Ms. Anne McLellan: I think it depends on the classifications.

George, you can speak to that group to which judges are reasonably compared within the public service.

Mr. Howard Hilstrom: Just a minute, Minister. You were saying that if everybody else were required to have a pay freeze, judges would also. So I'm talking about everybody else.

Ms. Anne McLellan:

[Editor's Note: Inaudible].

Mr. Howard Hilstrom: Deputy ministers are equivalent to judges, you're saying, so I accept that. So deputy ministers and judges—

Ms. Anne McLellan: George.

Mr. George Thomson: The broad answer, sir, is that the freeze was lifted as of that date. For some groups of the public service, collective bargaining is still going on and there isn't a resolution to that, but once it's resolved, there will be adjustments that go back to when the freeze was lifted.

Ms. Anne McLellan: Which was April 1, 1997.

Mr. George Thomson: There are some groups that are not subject to unionization but have bargained with government and have reached settlements involving adjustments that go back to April 1, 1997. That's the time as of which the freeze was lifted.

Mr. Howard Hilstrom: I'm raising these issues just because somebody, I guess us fellows on the opposition side here, has to speak for the average taxpayer, the average guy. I know that when they went through the pay freeze of the last five or six years, some people making as low as $24,000 to $26,000 a year and up to $50,000 or $60,000 had an awful lot of a hard time living, compared to a chief justice at $208,000. And I'm not sure they're all going to get a 4% raise effective April 1, 1997.

• 1650

So this perception of fairness and equity coming out of this commission is certainly something that has to be looked at in the future.

The cost-of-living idea, the industrial average and that, is a good idea and a good starting point. But then it's getting into how much over and above that is a fair and equitable increase. That's where I see the problem coming in.

In any event, to go on to another subject, can you tell me if the quadrennial reviews are still part of the package?

Ms. Anne McLellan: We have had triennial reviews, but in fact we are now proposing that we would go to a quadrennial review. A commission would be put in place for a four-year period and recommendations would be made and acted upon. That would cover that four-year period of time. The possibility might exist, though, that once the commission makes its recommendation, then that deals with the prospective four years.

Mr. Howard Hilstrom: With regard to the postponement, it seems that the decision to postpone would rest with the commission. Is that true, or should it rest with the justice minister?

Ms. Anne McLellan: The decision to postpone what?

Mr. Howard Hilstrom: The commencement of the quadrennial review.

Ms. Anne McLellan: I can't do that unilaterally. I'm not allowed to say, oh, there can't be— I'm not going to put in place a commission, because of course that could undermine the entire independent process that the commission is to be.

So if it were to be postponed, that would have to be done in agreement with the other key constituents.

Mr. Howard Hilstrom: Okay, I'm just concerned that maybe the commission itself would be able to postpone. I don't know why they would, but—

Ms. Anne McLellan: If it's put in place, then it is given a timeframe—usually nine months—in which it must do its deliberations and deliver a report.

Judith, I think that nine months would only ever be extended in an exceptional circumstance.

Mr. Howard Hilstrom: Of course, I'm obviously not an expert on any parliamentary procedure, but could you just briefly discuss why the commission would report directly through the Minister of Justice as opposed to going the more direct route to Parliament? That would be my last question.

Ms. Anne McLellan: Well, as I said, to some extent this is probably the same issue raised by Mr. MacKay. It is the Minister of Justice who tables the report in the House, but I can't sit on that report. There's no way I can subvert the report or the process, or delay the two houses of Parliament receiving that report by more than 10 days.

So, yes, it is submitted to me, but there is a legal obligation that I then table that report within 10 days of its receipt. That is basically two weeks of a parliamentary session.

Mr. George Thomson: If I could just add, Minister, there's a requirement on the government to respond within a period of time. It does require then that a report be delivered to the minister of government, and it would be the Attorney General, the Minister of Justice. So that could trigger the passage of time within which the government must respond to the report, but in addition, it's tabled with both houses of Parliament.

Ms. Anne McLellan: As I understand it, the other thing too is that under the House rules the report is automatically referred to the committee. So it would automatically come to this committee for its review, deliberation, and consideration.

The Vice-Chairman (Mr. John Maloney): Thank you, Mr. Hilstrom.

Anyone else? Mr. Breitkreuz, you have five minutes.

Mr. Garry Breitkreuz (Yorkton—Melville, Ref.): Thank you, Mr. Chairman. I just have a brief question.

You've made the point, Madam Minister, that instilling public confidence is really important, and that's what this bill is all about, to instil public confidence. I think more is needed, a lot more in fact, in this bill before Parliament does increase the judges' salaries and benefits.

We made the point in the House that the RCMP officers continue to be left out with respect to having similar concerns addressed. One of the things that I think would instil more confidence and address many other concerns is somehow to make the judges more accountable, to have more public input into who gets appointed.

• 1655

As you know, Vic Toews, Manitoba's justice minister, expressed a lot of concern over the release of dangerous suspects on bail and sentencing violent gang members to reduced jail time. He called for a review of the whole process by which judges are appointed. You talked about this already.

I would like to get some idea from you as to what you feel are some ways that could be implemented to have more public input into the appointment of judges.

You were very critical of the American process. What do you feel can be done to bring more confidence to the judiciary beyond this process that we now have?

Ms. Anne McLellan: Well, certainly, as I've said, I'm open to suggestions, and maybe this committee has some in terms of how our judicial selection committee process could be enhanced.

Maybe it is possible to increase the transparency of that process, keeping in mind that you are dealing with people who apply for positions. They expect those applications to be treated with confidence.

They do not expect their professional intentions to be bandied about in local communities, within their professional groups, or elsewhere. But there may be the possibility of greater transparency.

I think my colleague, Allan Rock, insisted that there be three lay people on those committees for the very reason that we want to make sure there's non-specialized, non-elite public opinion. That would be there to get the qualities that make a good judge, the things we're looking for.

Do we have a sufficiently diverse pool of applicants to be judges? Of those who apply, do we have enough women, aboriginals, and those of colour? If not, why not? Everybody has the right to see themselves reflected in the courts.

It's hard to have the courts viewed as legitimate institutions if all Canadians don't, in some way, see themselves reflected on the benches by those who make decisions and have judicial power.

So we made a real effort with the appointment of, or increasing the requirement for, lay representation to ensure that this kind of direct, non-elite, non-specialized public input was provided.

But there may be other things we can do. We must keep in mind that these are people's careers we are dealing with when they apply to these committees.

The names that come from the committees, and the statistics, are public in terms of those who are recommended, those who are highly recommended and those who are not recommended for appointment, at least at the given time they applied. These are not the names obviously, but the percentages.

I receive those names, and then I begin a process that involves the provincial attorney general, the chief justice, or chief justices, depending upon the level of course to which persons are being appointed. The process also involves representatives of the bar, the law society in the province, etc.

I have made it plain that if the public wishes to communicate with me directly on their views in terms of either any individual appointment that's available or generally the kinds of qualities, skills, and expertise we need on the bench, I will be very happy to entertain those.

Let me assure you that in relation to the last Supreme Court of Canada appointment, when I made that representation, we received literally hundreds of faxes and letters from people not only in Ontario but all over this country. These were in terms of who they thought would make a good Supreme Court of Canada justice, either the individual himself or herself, or the type of person and the qualities we should be looking for. For me that is a very important input into the process.

Are there other ways that we could enhance public input and transparency? Possibly. I think I go back to Mr. Goulard's suggestion that the committee might like to offer within the existing structure we have, that there may well be ways that we can increase the transparency. For example, I will be reappointing these provincial selection committees in December 1998. The present committees' membership expires on December 31, 1998. I would be very interested in hearing from this committee in terms of whether you think the appointment process should be changed, whether we have the balance right in terms of who is represented on those committees—the provinces, the bar, the public. Maybe some other representation should be there, and I would be very interested in hearing that.

• 1700

The Vice-Chairman (Mr. John Maloney): The time has expired, but Mr. Bellehumeur has one little question, Madam Minister. Would you mind?

[Translation]

Mr. Michel Bellehumeur: I want to refer to what Mr. Lee was saying earlier. I gave you some figures, Madam Minister, that you did not correct. Moreover, some of the percentage increases escape me. If I do the math, based on an increase of 12%, do you realize, Madam Minister, that for an ordinary Superior Court judge, that would mean an increase of $19,500, and that for the chief justice of the Supreme Court, an increase of approximately $25,000, as of April 1, 1998? Are those figures correct?

[English]

Ms. Anne McLellan: Okay. Let me give you the numbers based on both the industrial aggregate plus the proposed Scott recommendation.

For the majority of federally appointed judges the current salary is $162,000. The majority of these federally appointed judges will make $165,500 effective April 1, 1997, and effective April 1, 1998 they will make $175,000. That is the increase in compensation.

[Translation]

Mr. Michel Bellehumeur: If I understood Mr. Lee, that was suggested in the Scott report. But besides that, there is a 2% increase and another 1% increase, in any case, two or three other increases besides this one. You are giving us only half the story.

[English]

Ms. Anne McLellan: That is included.

[Translation]

Mr. Michel Bellehumeur: In the 4.1%? I was under the impression that 4.1 plus 4.1 equals a 8.2% increase.

[English]

The Vice-Chairman (Mr. John Maloney): Mr. Bellehumeur—

Ms. Anne McLellan: It does include this, but we will certainly work the numbers for you. My best information is that this includes both the industrial aggregate plus the proposed prospective salary increases to April 1, 1997, and then April 1, 1998.

The Vice-Chairman (Mr. John Maloney): I might refer you to appendix A in our executive summary, which might answer your question, Mr. Bellehumeur.

Mr. MacKay has asked for just one little—

[Translation]

Mr. Michel Bellehumeur: It is important. They come here without the figures.

[English]

Ms. Anne McLellan: That is to the best of my understanding, Mr. Bellehumeur, but we will check that for you. I don't want you to be under any misunderstanding here. So we will rework the numbers, but—

[Translation]

Ms. Eleni Bakopanos (Ahuntsic, Lib.):

[Note from transcriber: Inaudible]

[English]

Ms. Anne McLellan: Okay, but—

[Translation]

Ms. Eleni Bakopanos: —by the clerk. That is what he is saying.

[English]

Mr. Rob Anders (Calgary West, Ref.): I have a point of order, Mr. Chairman.

The Vice-Chairman (Mr. John Maloney): Yes, Mr. Anders.

Mr. Rob Anders: I'm wondering what the quorum count is in this committee. What's the number for a quorum?

The Vice-Chairman (Mr. John Maloney): Three.

Mr. MacKay, a very quick question and a very quick response, because the minister has to get away.

Mr. Peter MacKay: Thank you, Mr. Chair.

In the context of what you said about the importance of reporting to Parliament in this particular instance of the committee coming back, I just want to ask you a question. It may get ruled out of order. Your press conference for tomorrow is in response to a reference from this committee, and I'm wondering why that isn't going to be done in the House as opposed to being done in the form of a press conference.

Ms. Anne McLellan: The report is being tabled before this committee. As you are probably aware—or you may not be aware—with the election of June 1997 in fact it was not a requirement that the government respond to that standing committee report. But because we felt that the subject of the renewal of the youth justice system was so important, we determined that we would respond to that report.

Everybody knows that this is an issue of concern to Canadians, and therefore we chose to respond. But because there is no requirement for the response to be tabled in the House, we are going the additional step of making sure it's formally tabled before the committee, out of respect for committee members. So that will be done tomorrow.

Mr. Peter MacKay: Wouldn't it be more respectful to do so in the form of a ministerial statement?

Ms. Anne McLellan: Well, certainly when legislation is forthcoming on the basis of the renewal strategy, I will be back before this committee. But in fact, as I say, even though there is no legal requirement per se, we are tabling the report with the committee.

The Vice-Chairman (Mr. John Maloney): Thank you, Madam Minister, and Mr. Thomson, Ms. Bellis, for coming out today.

Ms. Anne McLellan: Thank you. It was a pleasure to be here as always.

The Vice-Chairman (Mr. John Maloney): I just have a comment for the committee. If you have any more comments on witnesses for Bill C-37, we'll discuss them tomorrow when we discuss the report on impaired driving.

If you have any witnesses for the victims' rights— or the round table, please submit those to Luc by Thursday afternoon at the latest.

• 1705

There being no further business, the meeting is adjourned. Thank you very much for your attendance and your comments.