November 9, 2006

NDP

Joe Comartin

New Democratic Party

Mr. Joe Comartin

Mr. Speaker, my colleague from Halifax has given me the opportunity to point out the role that judges play, both as retired judges and active judges. They are regularly at international conferences to share their experiences of how they built the strong judiciary we have in this country.

I would like to use a couple of examples, one being Justice Arbour and the role she played with regard to crimes against humanity and war crimes, and the role she is playing at the United Nations. She is a very good judge but she was not atypical in the role she played in advancing, which, I would guess, our government, like the Bush administration in the United States, would be opposed to, the development of international law and, specifically, an international criminal court, that would deal with crimes against humanity, genocide and holocaust. She has been one of the leading judicial figures in the world in developing that.

The other example I have comes out of my law school days in Windsor. Work is being done, with the direct active assistance of a number of the judges in Canada, to develop a judicial system in Palestine to deal with the corruption that has permeated its judicial system in the past because of the direct conflict with the involvement at the political level in the judiciary in Palestine. Quite frankly, that program is in serious jeopardy because of the Conservative government's decision to cut funding to the Palestine government. A key part of that program are the judges who come from Canada to help Palestine better its judicial system.

The program we used in Russia, again with the active participation by our judiciary, showed the Russians that the old Soviet system was not the way to go. They should not have government telling the so-called independent judiciary but in fact have an independent judiciary. It is beginning to have some impact in Russia even under the current government. The quality of the judges that we send to take part in that contributes to the development of a better judiciary right around the globe.

Topic:   Government Orders
Subtopic:   Judges Act
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LIB

Larry Bagnell

Liberal

Hon. Larry Bagnell (Yukon, Lib.)

Mr. Speaker, to follow up on the international aspect, when the eminent member for Mount Royal went around the world, shortly after the cuts to the court challenges program and other institutions, other nations were astounded that Canada would cut these eminent institutions, which are leaders in the world.

The minister very appropriately said yesterday in debate and at committee that the recommendations for remuneration and benefits for judges was a decision of Parliament, not the government, as outlined in the Constitution in section 100.

Does the member see this as a decision of Parliament, that Parliament is unencumbered in making that recommendation and decision?

Topic:   Government Orders
Subtopic:   Judges Act
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NDP

Joe Comartin

New Democratic Party

Mr. Joe Comartin

Mr. Speaker, my colleague's question allows me to briefly expand on my comments.

The government and the minister have made statements that this is a decision of Parliament. It absolutely is not. There may be enough votes, although the Bloc has its own agenda on this, which again is very shameful. However, the House will never have the opportunity because the government has taken a position, which by the tradition of this Parliament it can. If amendments come forward to increase the amount we pay our judges, in accordance with the independent commission's recommendations, the Conservatives will invoke the royal prerogative and refuse to make a royal recommendation. Therefore, those amendments will be ruled out of order.

The opposition does not have the support of the government to present those amendments because it will not receive a royal recommendation. That is the government's role.

I get the sense from some of the discussions I have had with contacts within the judiciary that the government has put out this message, it has spun it, that Parliament will make that decision. This is absolutely false. Parliament cannot make the change. The government will not allow us. It is as simple as that.

This is going through because the government has taken that position. It has cut the recommendations by 25%. Judges will be compensated by that much less because of the government, not because of the House.

Topic:   Government Orders
Subtopic:   Judges Act
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NDP

Alexa McDonough

New Democratic Party

Ms. Alexa McDonough

Mr. Speaker, one of the points the member has made is that the decision to cut the court challenges program is a frontal attack on the judiciary itself. Of all the bad decisions the government has made, the very worst decision is to eliminate the court challenges program.

Our country has prided itself on ensuring justice means something, that there is a way for people, who do not have deep pockets and high placed connections with the government in power, to have their rights and their views upheld in the judicial process. Now the government has thrown that on the scrap heap.

Could the member elaborate briefly on what he means when he says that in effect cancelling the court challenges program is an all out attack on the judiciary?

Topic:   Government Orders
Subtopic:   Judges Act
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NDP

Joe Comartin

New Democratic Party

Mr. Joe Comartin

Mr. Speaker, in some respects it may be difficult. I always get laughed at when I say this. If one is not a lawyer, he or she may not be able to appreciate this. Then I get all the boos about lawyers, but it is true to some extent. I am not being arrogant. We have to appreciate how important it is to have quality representation before the judge so the judge can make good decisions. It is about as simple as that.

This preceded me because I am not quite that old, but perhaps the best way to describe it is like this. Before we had legal aid in Canada, broadly based and broadly available, judges who practised and made judicial decisions in our criminal courts found it difficult to make good decisions when the accused was unrepresented. The Crown prosecutor would present the case for the state. No one was there to challenge the prosecutor, to put forth legal arguments, to present evidence in a better fashion than the untrained individual could.

It is the same thing when we get rid of the court challenges program. It is like cutting legal aid. We will not have qualified people in front of the judges to present good evidence and good legal arguments. It is just not going to happen.

It is a shame that this has happened. Hopefully, the government will be gone shortly and we will reinstate the program.

Topic:   Government Orders
Subtopic:   Judges Act
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LIB

Derek Lee

Liberal

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

Mr. Speaker, I think my remarks will pretty much follow along the same context as our colleague who just spoke.

In my remarks today I want capture three separate perspectives on the bill, and not because I am looking in a rear view mirror. The way the government appears to want to handle this matter will likely cause new files to open in the future. The other place, next door to the House of Commons, will undoubtedly be interested in some of these perspectives as it reviews the bill.

As we all know, the Supreme Court of Canada a few years ago decided that the only solution to the ambiguities and imprecision in the matter of setting or adjusting the salaries for judges was the need for an independent commission which would study and recommend what those salary levels should be. The commission has functioned for the last five or ten years. As I recall, the second last report was implemented as the Supreme Court had recommended.

It was a Supreme Court decision, which is a bit more than a recommendation. It created the law in that case in an arguable vacuum, taking into account the contingencies that the court felt were relevant at the time.

The report we are dealing with now is from the independent commission, not from the justice committee. It was introduced a couple of years ago. The last government introduced a bill that would have implemented the recommendations of the commission. That bill fell from the order paper at dissolution of the last Parliament. The new government has now introduced a bill that would substantially reduce the amount recommended by the commission.

Part of the problem identified by the government, which it felt empowered to identify, was that in assessing the costs and what should be paid to judges and the courts, there was a difference between street inflation in Canada and what I would call lawyer-judge inflation. The Supreme Court and the commission recognizes that one of the considerations of setting judicial salaries is the need to attract some of the best legal minds into the judicial profession. In order to attract them, there has to be appropriate amounts paid in salaries. Therefore, the court has accepted that lawyer-judge type inflation is very relevant to the setting of those amounts.

The setting of those amounts do not have very much to do, whether one agrees with this or not, with what a bus driver might make in Winnipeg or what a fish plant worker might make in Nova Scotia. As a result, we have these two different worlds competing. When the independent commission makes its report, it looks at the judicial-lawyer type inflation and the salary amounts that should be paid to continue to attract good people into the profession. As I said, the previous government had followed through on this, but the new government has not.

I want to now turn my attention to the legal infrastructure in this place to deal with the salaries of judges.

Just so the record is clear, section 100 of the Constitution Act says that judges' salaries shall be fixed by the Parliament of Canada. Section 17 of the Constitution Act says there shall be a Parliament of Canada composed of the Queen, the House of Commons and the Senate. Parliament has three heads. I think most would agree the modern manifestation of the Queen would be the Privy Council, which, for all practical purposes, is the cabinet. The cabinet is represented in the House of Commons through the Prime Minister and the other ministers. In dealing with judicial matters it would be the Minister of Justice.

There is another section of the Constitution Act which is a bit of a sleeper but very important to us here. Notwithstanding that section 100 says that Parliament shall fix judges' salaries, section 54 of the Constitution Act says that the House of Commons may not pass a bill or motion that involves the expenditure of public money unless the government, the Queen--the Privy Council--has already given a royal recommendation for the expenditure of that amount.

As the House deals with these matters in the ordinary course, the House cannot increase any of the spending of public money without a royal recommendation. That is very important because what has happened in this case is that the consideration of the report of the independent commission is done by this House. While this House under those constitutional rules could reduce the amount recommended by the commission and put it into a bill for adoption, this House could never increase the amount.

The best laid plans of the Supreme Court of Canada in setting up this independent commission which then makes a recommendation to Parliament is handicapped by the fact that there is only one player in the mechanism that has the ability to fairly implement, and that is a government bringing in a bill with a royal recommendation.

I make the point that it looks to me as though section 54 requiring a royal recommendation hobbles, handicaps, is an impediment to the House fairly dealing with the commission report. The independence that the Supreme Court of Canada had hoped for when it went through the Prince Edward Island case and the Bodner case has been lost simply because section 54 requires the existence of a royal recommendation. We have one hand tied behind our backs as we deal with this.

Oddly enough the Minister of Justice, confirmed as recently as yesterday by his parliamentary secretary, told the justice committee as it reviewed this report that if the committee wants to increase the amount recommended, it should go ahead. That is essentially what was said. That came from the justice minister. I suggest to the House, in this circumstance knowing the law as he should, and I am looking for an adverb or an adjective, but that position could be described as falling in the spectrum somewhere between ignorance and deceit, with sincerity in the middle.

Surely the justice minister knows that the committee and the House could never recommend an increase or adopt an amount that was in excess of what the Privy Council put into the bill without a royal recommendation. Yet it appears that publicly the government is giving the impression that the government, the Privy Council, is open to Parliament fixing this amount to what Parliament and the House think is appropriate, when all along it knows full well that such an increase could not be implemented, recommended, moved, proposed in committee or in the House because there is no royal recommendation.

I would say today that if the government were sincere in saying it is possible to raise these amounts to what the independent commission had recommended, I challenge the government now, I challenge the minister now, I challenge the members of the Conservative caucus to say they will give a royal recommendation to implement what this House wants, what the committee would have adopted had the proposed amendments to increase the amount in the bill not been ruled out of order at the committee. The amendments to reinstate the commission's report were ruled out of order. If the government were really sincere in its suggestion that the House could increase the amounts, it must say that it is also prepared to provide a royal recommendation, which the government is apparently not prepared to do.

After the bill passes third reading it will move to the other place. There is another rule in the Constitution which says that the other place is not able to initiate a money bill or spending. The only place in the whole world where one could implement an increase in this bill is in this House, but we have one arm tied behind our back because of section 54 which says that we need a royal recommendation and that royal recommendation can only come from the government.

I regret that. I wanted the record to show that. It is most insincere for the attorney general to hold that out, that he and the government are willing to see an increase when they will not come forward and say that they will give a royal recommendation for the increase that might be there.

Now that I have that out of the way, I want to do two more things. The first is to talk about the independent commission mechanism that was set up by the courts. Looking back over that, it occurred within the last 10 years, it seems to me that while the court was sincere in wishing to create the independent mechanism and to have a vehicle that Parliament could make use of, I believe the courts overlooked some of these elements that I have described here today, the incapacity of the House to move anything upward or to make a move without a royal recommendation. At the end of the day, the one component of government that obstructs the court, i.e., the cabinet and the Privy Council, is the one component the court wanted to distance itself from when it set up the mechanism.

The court felt that there should be a degree of judicial independence and it should not be in a position to go cap in hand to the cabinet, to the Privy Council, and yet, after implementing this mechanism, we are still stuck with the problem that was there before. The cabinet, the Privy Council, still has that one piece of paper, the royal recommendation, that prevents Parliament from fulfilling its constitutional obligation.

There was a time at the committee when I was prepared to argue that the royal recommendation provision in section 54 was, I will not say it was unconstitutional, but because there was a conflict between section 100 and section 54, that section 100 empowering Parliament to fix the salaries of judges should prevail over section 54. It is an argument for another day, not here.

I do suggest in the event the court wishes to deal with the matter again, and the court may, given what has happened here with this bill, that an attempt be made to implement an improved dialogue between Parliament and the court just this one time. The courts do not have to come cap in hand here. They are an independent institution and have to be constitutionally.

If they are designing a judicial salary adjustment mechanism, and if Parliament is an integral part of that process, then the mechanism surely must be designed in collaboration with Parliament itself. Had that dialogue occurred 10 or so years ago, the problem we have today might have been avoided.

The last thing I want to do is to connect some dots, and my colleague who spoke just prior to me actually began to do that. It has to do with the position of the current Conservative government that has in one sequence of actions managed to clip the increases to judges' salaries. Some would say the government has not done it very respectfully or at least respected the mechanism already in place. The government has also managed to clip the court challenges program, virtually abolishing it, and the Law Commission.

What do all of these things have in common? I am going to try to connect some dots. I could be wrong; I can only do this by inference. It is very difficult for me to figure out why, in a period of relative prosperity in this country where we have had balanced budgets and surpluses every year for seven or eight years, the government finds the need to get rid of the Law Commission and the court challenges program and to not implement the independent commission's report on judges' salaries. The only thing I can see that these things have in common is disposition over the last two or three years of the same sex marriage issue.

I recall the report from the Law Commission entitled “Beyond Conjugality”. It was a discussion of the law relating to spousal and non-spousal relationships. Part of the discussion dealt with many of the same sex marriage issues which this House has dealt with. I could not help but detect some disfavour on the part of many Conservative members about it. I have seen it at the justice committee. It is not always on the record, but it is there.

The court challenges program brings court charter challenges into the courts. Members will recall the same sex marriage issue, the redevelopment of the definition of civil marriage, was accomplished primarily as a result of litigation charter challenge. I am not certain whether the court challenges program funded any of that; it may have, but it is passing strange. I see a connection there.

I mentioned the Law Commission's report and now the judges who made these decisions that essentially required Parliament to act a year or two ago. I have simply had no choice but to draw the inference that the Conservatives' distaste for those decisions was a prime motivator in this, because I cannot see any economic or fiscal reason to turn attention to these very viable working mechanisms in our judicial sector.

The Law Commission which is being scrapped now was the reincarnation of the old Law Reform Commission, which was scrapped by the previous Conservative government in 1990 or 1991. A very strange thing. The Conservatives do not like law reform commissions. They junk them.

I appreciated the opportunity to make these remarks. I hope they will be helpful for the record.

Topic:   Government Orders
Subtopic:   Judges Act
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BQ

Robert Carrier

Bloc Québécois

Mr. Robert Carrier (Alfred-Pellan, BQ)

Mr. Speaker, I have listened to the presentation by the hon. member from the official opposition.

It is no doubt always a delicate topic for those involved when salary increases for judges are debated publicly in the House of Commons. The same was true for parliamentarians. That is why an independent commission is responsible for determining the rate of increase. Where judges are concerned, it is especially sensitive since there could be a great deal of demagoguery about what increase they should be getting, particularly in comparison with politicians.

I would like to ask the hon. member whether he feels, based on his knowledge of the field, that the judges themselves would prefer a different mechanism so as to prevent discussions in the House about their rate of increase each time the issue of judges' salaries comes up.

Topic:   Government Orders
Subtopic:   Judges Act
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LIB

Derek Lee

Liberal

Mr. Derek Lee

Mr. Speaker, that is a very good question because it goes to the core of why the Supreme Court originally recommended that there would be an independent commission, whose report would be presented and essentially adopted as is, thereby obviating any need for Parliament itself or the cabinet or anybody else to actually go and reinvent the wheel and figure out by how much judges salaries should be increased.

The independent commission, as established, is the mechanism that the judges hoped would avoid this kind of a back and forth argument. Originally, it is worth noting and as the member mentioned, when the mechanism was created for the judges, it was felt that members of the House of Commons and the Senate could simply piggyback on that same salary adjustment mechanism, but it turned out, as I referred to in my speech, that lawyer and judge inflation is different than street inflation.

Many members of the House just felt that we could not, in fairness, accept the relatively rich increases that were being generated in the lawyer-judge area. We preferred to peg our salaries here to combinations of either the consumer price index or the industrial aggregate. Those numbers, those percentage increases, are closer to what I referred to earlier, regarding the bus driver in Winnipeg and the fish plant worker in Nova Scotia, tracked by Statistics Canada.

Members got the right idea and the Supreme Court had the right idea. At this point in time, I think the government is trying to change that and the future will tend for itself.

Topic:   Government Orders
Subtopic:   Judges Act
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BQ

Michel Gauthier

Bloc Québécois

Mr. Michel Gauthier (Roberval—Lac-Saint-Jean, BQ)

Mr. Speaker, I am pleased to once again rise in this House to discuss Bill C-17 dealing with the salaries of federally appointed judges across Canada.

It is a delicate matter to discuss the salaries of the judiciary. We agree on that fact. It is important for those who are listening to us and who are trying to understand this, to know that the Bloc Québécois voted against the bill on second reading because we consider that the increase offered to judges by the government is well beyond the norm in all other sectors of Canadian activity where the government and public funds are involved. It is important that we explain to the people why we have adopted this position.

On May 31, 2004, the mechanism for establishing the compensation of judges went into action; the commission presented its report and recommended a salary adjustment of about 10% for judges and parliamentarians. The salaries of parliamentarians had been linked to that of judges by the previous Liberal government—not the government just prior to the last election but the government of Jean Chrétien. At that time, the Liberals had decided, I believe with the unanimous consent of the House, that it was important that not only the salaries of judges but also those of parliamentarians should be removed from public debate.

It became usual, proper and accepted that from then on the salaries of the two groups became linked. Among other principles, it seemed to us unreasonable and illogical that mechanisms should determine that the Chief Justice of the Supreme Court, who holds a very high office, but an office that in terms of hierarchy is not as high as the Prime Minister, and with the passage of time, that other members of the judiciary, should have a much higher salary than the Prime Minister.

All those who are listening to us, who are at home and are of good faith, will certainly want to say that it is perfectly normal and they believe that the salary of the Prime Minister should be higher than the salary of the Chief Justice of the Supreme Court, if only by a single dollar.

Finally, with the acceptance of this mechanism or idea, a link was established between the salaries of judges and those of parliamentarians by concluding that if the mechanism works so well for judges, it should be the same for parliamentarians. So, it was agreed once and for all to stop talking about that because the situation is even more odious for members since they are the ones who have to determine their own salaries. If it is annoying to members to discuss judges’ salaries, you can image how annoying it is to talk about their own salaries.

This means that in our democracy, here in Canada primarily, we have often seen in the past, in the provinces, cases where elected representatives’ salaries were harshly criticized by the public. In some governments, deputy ministers and assistant deputy ministers, people who have good job security, are paid more than ministers, and in some cases than the premier. There should really be some degree of fairness, and the public is entitled to know about these things.

At the initiative of the previous Liberal government, under Jean Chrétien, judges’ salaries were used as the model and the increases that members of Parliament should receive were tied to the increases given to judges.

At the time the report was submitted, the increase was about 10%. The former Liberal prime minister, the one who was in office at the time of the election, the member for LaSalle—Émard who is still a member today, suddenly got excited. It had become unthinkable and horrible that members be given a 10% salary increase. There were headlines in the newspapers and this became something quite shameful. It was indeed a large increase. Everyone thought it was huge, knowing that all of the raises being given in other parts of the economy were 1.5% or 2% or 3% or something of that sort.

How could we justify parliamentarians suddenly being given a 10% raise? This had nothing to do with parliamentarians; in fact it was the mechanism for setting judges’ salaries that had produced a 10% increase in members’ salaries.

Parliamentarians had nothing to do with this. I was told I would be getting a 10% increase. The prime minister got all excited and said that this did not make sense, because Canadians did not have the resources to give politicians a 10% raise. Everyone applauded and said that it did not make sense to give a 10% raise. This did not look good, because if other people were getting a 2% raise, why would we get a 10% raise? We agreed.

When the decision was made to break the law that put politicians and judges in the same box, or undo that law, the Bloc Québécois, concerned about fairness to the public, said that if a 10% raise for politicians was scandalous, because people did not have the resources to pay that kind of increase, which was understandable, the public did not have the resources to give judges that kind of increase either. My goodness, there are more judges than members of Parliament.

I am trying to understand the logic followed by the member for LaSalle—Émard, who was the prime minister at the time.

No, Canadians did not have the resources to pay what the mechanism for determining judges’ salaries called for, which was a 10% increase. That was scandalous. Members of Parliament had to be distanced from what was being asked for. We would not give ourselves such a raise; we would make it closer to employees’ salary increase, a raise of 2% or 3%. Everyone agreed to this. Everyone thought that it made sense. In all the living rooms of the land, people applauded.

What people did not know, however, was that the Prime Minister had it in mind that the increase, which was too expensive for Canadians and for the 308 members of this House, was not too expensive for the hundreds and even thousands of judges in Canada. To the Prime Minister’s mind, the resolution no longer worked; the idea no longer worked.

These are the kinds of actions that have put us in the situation we are facing today. We have to re-assess judges' salaries and set aside the recommendations in the mechanism because at one time, politically opportunistic people destroyed the credibility of the mechanism and the process. In an “attempt to win votes”, they tried to make us believe that Canadians would be much poorer if the 308 members of this House and the hundreds or thousands of judges in Canada got a 10% pay raise.

We agreed with the Prime Minister. Nevertheless, what is good for the goose is good for the gander. If Canadians cannot give a 10% pay raise to members of Parliament—we understand and we agree—they do not have to. But then nobody should get a raise. We cannot give a raise to one half of the people and not the other.

Canadian citizens are too poor to pay their members of Parliament a reasonable salary or to give them a pay raise, yet they are rich enough to give judges a raise? Hold on a second. We like judges well enough and we respect the judiciary, but our priority is justice. We support social justice. What is good for the goose is good for the gander. Period. End of discussion.

Citizens made it very clear to the member for LaSalle—Émard what they thought of his decision. The member for LaSalle—Émard, who was Prime Minister at the time, kind of broke the mechanism. Since then, the Bloc Québécois has said that it will not agree to another mechanism unless and until there is a guarantee that judges will be treated fairly with respect to citizens, that is, that their pay raises will match everyone else's.

I would like someone to explain to me why it is that Canadians can afford to grant judges a salary increase of 7%, yet they cannot afford to grant a salary increase of 4% to a deputy minister, a 4% increase to an assistant deputy minister, a 4% increase to a public servant who looks after the cleaning here in Parliament, a 4% increase to any professional who works in the public service—such as an engineer or accountant, for example—and a 4% increase to MPs. Someone please explain this to me. It is taxpayers who must pay and who we are asking to make an effort.

We definitely want the judiciary to have the respect of Canadians, to function independently, and to maintain the trust of Canadians.We must avoid at all cost creating a situation in which judges receive a salary increase that is completely out of line with what other Canadians receive and what they can afford to pay everyone who serves the Government of Canada, at all levels. Judges serve the Government of Canada and Canadian citizens in an independent judicial system that is not isolated from the economic situation of this country. That is the reality.

Rulings have been handed down, such as the Bodner case in Alberta. The court clearly acknowledged that decisions about the allocation of public resources belong to legislatures and to governments. Governments are entitled to reject or modify commission recommendations provided that they have articulated a legitimate reason for doing so—which is fine, that the government’s reasons rely upon a reasonable factual foundation—which is also fine, and that, viewed globally and with deference to the government’s opinion, the commission process has been respected.

The commission has reported, the government believes that the economy does not permit giving anyone much more than the overall increase in the economy as a whole, and the government is able to explain this. It sees to me that that should become the rule. That is what the judgment says. However, governments do not have the courage to apply decisions as they should. They have a bad habit of behaving in one way when public opinion is at stake and another when it is not very much. As an elected representative of the people, I cannot accept that.

I am prepared to meet voters under any circumstances and justify the decisions for which I voted in Parliament. I am prepared to do that at any time. I am not prepared, though, to meet people in my riding to explain an injustice. I am not prepared to meet them and say that the government does not think it has enough money for certain very deserving social causes, it does not have enough money to help older workers who were let go in mass layoffs due to globalization problems.

I cannot say that to forest workers in the riding of Roberval. These are people who are 58 years old and toiled all their lives in a plant or sawmill. Now these people are being let go, and at 60 or 62 years of age, they do not have the necessary pension funds. They are condemned to give up their houses, cottages and cars. They go on welfare until they turn 65 and can get their Canada pension. I cannot in all conscience meet these people and tell them that the government does not have $75 million to spend on all the older workers victimized by mass layoffs in Canada. On the other hand, though, the government does have $75 million to spend on judges all across Canada over three years. It is going to give them annual increases between $14,000 and $20,000.

I hold our judges and parliamentarians in high regard, but I cannot in all conscience and as a member of Parliament tell my voters that I agree with a $14,000 to $20,000 salary increase for judges, who are already earning between $220,000 and $260,000, when the government does not have $12,000 or $14,000 for families that have been reduced to poverty through economic circumstances, globalization and mass layoffs. I am sorry, but I cannot do that. There are some things a person just cannot do in life, and that is one I cannot do.

I have nothing against judges, but let them be subject to the same criteria as parliamentarians, which my Liberal colleague referred to earlier. Let them be subject to the same criteria.

Why should the rule whereby increases in wages and salaries reflect the collective wealth of society not apply to judges?

Would the protection of judges from public opprobrium not be best achieved by ensuring that their salary increases are not sickening to those for whom poverty and misery are a part of their daily lives? Does protecting judges not mean ensuring fair pay, but pay that reflects the increase in collective wealth across the country? Am I to understand that, until this year, the Canadian judiciary was 7% poorer than average Canadians? Absolutely not.

In Canada, the judiciary is well paid, as it should be. It should nevertheless be granted pay increases which reflect a social and economic reality that cannot be ignored.

I do not see why a profoundly human speech in tune with reality, or explaining to people that the mechanism for setting judges' salaries should take into account the increase in collective wealth, would raise opposition on the other side of the House. If I said anything terribly wrong today, let me be chided on the spot. What was wrong with saying that I believe it is not right for the Chief Justice of the Supreme Court to have a salary set by this House that is higher than that of the Prime Minister? There is no cause for scandal in that.

Topic:   Government Orders
Subtopic:   Judges Act
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?

Mr. Yvan Loubier

The logic is impeccable.

Topic:   Government Orders
Subtopic:   Judges Act
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BQ

Michel Gauthier

Bloc Québécois

Mr. Michel Gauthier

It seems to me that the logic is indeed impeccable.

It is the government's duty to establish the guidelines. Imagine what it is like to be a member of a committee convened to discuss the salaries of judges and of MPs—as was the case in the past. First, a judge is appointed to the committee. Naturally, he knows his profession well, and knows the salaries. Second, a lawyer is appointed. We like lawyers, but they work with judges. Some lawyers have fairly substantial incomes. Representatives from the economic sector, usually individuals who have had some success in the business world, the economic world, are also appointed; for them, the salary of a judge or MP is small change. There is a certain degree of openness.

When I was an MPP in Quebec City, I saw some of these people who talked about members' salaries. All these committees always produce reports indicating that they think there should be an increase of around 20%—what do I know?—and an increase of 20% to 25% for elected representatives. That is normal. These people are trying to make a judgment call, except that they have no connection to the daily reality of a parliamentarian. That is the difference. It is the government's duty to establish guidelines.

It is all well and good to let a small committee decide on the most appropriate salary for judges, but the government's duty is also to ensure that the committee takes into account the state of the economy, the usual benchmarks the government sets and the usual progress of increases. This is set out in the Judges Act. If the economy grows by 3% annually, I agree that judges should benefit, as MPs do now, as well as public servants and all those people. An increase of 2% to 3% a year is fine.

But if the economy grows by 2% to 3% a year, I cannot accept that people who are already well paid in this society should receive a 10% increase, plus have their salaries indexed to the cost of living, and later receive another 10%. This has meant that judges' salaries, which were equivalent to MPs' in the early 1980s, have gradually risen to double that amount today.

This has to stop, because the public is paying. It is not that I do not like judges or that I do not believe they should be paid appropriately, but they have to be paid equitably, and that means that we have to look at all the other categories of jobs, at the thousands of employees who work for low salaries in this Parliament and who make sure each day that Parliament runs smoothly. We have to consider the people who do the housekeeping and work every day to make us more comfortable. We have to look at senior officials, who have outstanding skills and who could be lured away to jobs elsewhere.

We have to take all these people into account and think clearly and with respect for the public and for our ability to pay.

Topic:   Government Orders
Subtopic:   Judges Act
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NDP

Alexa McDonough

New Democratic Party

Ms. Alexa McDonough (Halifax, NDP)

Mr. Speaker, I listened very carefully to the speech by my colleague from Roberval—Lac-Saint-Jean, in order to understand his arguments.

I listened very carefully to the social justice arguments that were put forward on behalf of the Bloc Québécois that has allowed the Bloc to rationalize why it is supporting the government position with regard to Bill C-17.

I have a lot of sympathy for that social justice argument. I think there is every reason to be concerned about the growing gap. There is every reason to be concerned about paying exorbitant, excessive salaries to one segment of the population, even if we can make a case for a higher level of education and so on as compared to working people. The member knows that the New Democratic Party is very much seized with the same arguments.

I am extremely surprised frankly that the member chose not to address at all what I think is at the heart of the government's actions with respect to the bill and that is the serious erosion of the independence of the judiciary.

I listened carefully when the member made the arguments on the basis of comparability of salaries and so on. However, what I did not hear was any suggestion whatever coming from the member about whether his party had any concerns about the independence of the judiciary which is being severely compromised by the government's actions.

It has been described that we are involved in a farcical process because the government knows that we do not have the means to actually act on even a decision that might represent the majority of this party because it is holding the power and the purse strings to do that in the processes.

I did not hear the member acknowledge that, taken in and of itself, the encroachment on the independence of the judiciary represented by the bill is problematic enough, but taken together with the elimination of the court challenges program and the Law Commission, we are seeing a very serious, dangerous and devious pattern.

I wonder if the member would address those aspects of concern that have certainly been identified as a very serious aspect of what is going on with the government's decision to basically throw out the independent process for determining the level of remuneration for judges.

Topic:   Government Orders
Subtopic:   Judges Act
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BQ

Michel Gauthier

Bloc Québécois

Mr. Michel Gauthier

Mr. Speaker, I want to thank the hon. member for her judicious comments.

I would like to clarify one thing. It is not a question of abolishing the mechanism or the structure for determining judges' salaries, but of giving this committee, as the legislation allows, the necessary framework to review, as set out in the legislation, the financial needs of the judiciary in relation to growth in the economy. The government can very well indicate to the commission within which framework it wishes to work. The legislation refers to the state of Canada's economy, the cost of living, the overall financial and economic situation of the government, the role of financial security for the judges, the need to recruit the best candidates and every other objective aspect the commission considers important. This mechanism needs to be maintained, but a framework needs to be in place to guide the work done by these people.

As far as independence is concerned, beyond the mechanism for setting salaries, I do not think judges will be less independent, less fair in their decisions or that they will not do as well in their profession and in interpreting the law, whether they are paid $220,000, $238,000 or $263,000 a year. We must also consider their responsibilities as compared to other professions. There are degrees of responsibility in the machinery of government, even for people who are not in the judiciary. For example, the Deputy Minister of Justice has extremely important duties and certainly a level of education that is equivalent, if not superior, to that of judges.

We must also look at how the government establishes the value of the service provided by these people. I do not believe that the hon. member thinks that the MPs, ministers and the Prime Minister in this House are less independent, less dedicated and less objective when they take decisions because they earn a certain salary and not another. Whether the Prime Minister earns $250,000 or $300,000 a year, I do not think this has much impact on his independence.

We have to maintain, for each individual, a level of income that is more or less equivalent to his or her responsibilities. The Bloc Québécois feels that the Chief Justice of the Supreme Court should earn the Prime Minister's salary, less one dollar. It seems to me that this is a reasonable level for a chief justice. The other salaries must be based on this primary responsibility. We do not think that the responsibilities of the chief justice are such that he should earn much more than the Prime Minister, for fear that otherwise he will not be objective or independent. This is totally irrelevant. The salary must be fair and reasonable, but we must also take into consideration the ability to pay that salary.

I am surprised to see this coming from the NDP. Amendments were proposed in committee. The hon. member may not be aware of this, but the NDP suggested to increase judges' salaries more than what the government is proposing, that is to increase them by 10%, instead of 7%, and indexing them to the cost of living. This amounts to about 13%. I have a hard time with the fact that this is from the NDP, because, usually, that party fights for social justice, rather than trying to improve the plight of society's upper echelons.

I would love to get an explanation some day, because I never understood that.

Topic:   Government Orders
Subtopic:   Judges Act
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BQ

Nicole Demers

Bloc Québécois

Ms. Nicole Demers (Laval, BQ)

Mr. Speaker, I listened carefully to my colleague’s very incisive and relevant comments.

He referred to social units in relation to older workers who lose their jobs in mass layoffs, but I think that he could also have referred to people who lack affordable housing, senior citizens who have been fleeced out of the guaranteed income supplement, people who no longer have access to literacy classes because of government cuts, senior citizens whose pensions are increased by only 1.5% or 2% a year, people who helped build the country and our wealth today, and the veterans whose programs and conditions suffer for lack of willingness to improve them.

Could my colleague talk to us a little about this in relation to judges' salaries?

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Subtopic:   Judges Act
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BQ

Michel Gauthier

Bloc Québécois

Mr. Michel Gauthier

I thank my colleague since this gives me a chance to clarify something. We must be careful not to lapse into demagogy when it comes to salary issues. We could not decide to freeze the salaries of every judge, member of Parliament and minister as long as there is human misery.

This would not be a good way of solving the problem. Still, what I say is that by looking at the problems of the homeless, of senior citizens who receive only a slight increase in their small monthly pension each year and the general enrichment of public servants—which is not very high either—by looking at all these questions, we see that the government can do better for everyone, but do better within its means. So what it can afford should serve as the criterion in all circumstances.

Indeed, within its means, the government could do much more for older workers and homeless people. This is a large number of people, but not such a large number that the government would go bankrupt if it helped them more.

What I mean is that, within its means, the government should do more for the homeless, for older workers who are victims of mass layoffs, perhaps a little more for senior citizens who might well deserve a little better support and for the needy groups of society.

The government could do for judges, as for MPs and public servants, what is fair and reasonable, that is, less than what it is now proposing. It is as clear as that. The homeless, senior citizens, workers who have lost their jobs and MPs all deserve justice. I will end by saying that judges—especially judges—who deserve all our esteem and all our respect, also deserve justice. We must therefore not cut them off from reality.

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Subtopic:   Judges Act
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LIB

Larry Bagnell

Liberal

Hon. Larry Bagnell (Yukon, Lib.)

Mr. Speaker, I am pleased to be here today to debate Bill C-17, an act to amend the Judges Act and certain other Acts in relation to courts.

Before I begin my remarks, I will note that I have just come from a meeting with a delegation from Mongolia. I certainly commend them for being here. I think we have a lot in common with that country. I am delighted that we were able to meet with the Mongolians, who have made the effort to come to Parliament today.

I would like to briefly comment on the remarks made by the Bloc member who just spoke. I have good news and bad news.

The good news is that a few hours ago I actually made a recommendation for how eloquent a speaker he was. That was certainly upheld by his speech today. I think all parliamentarians should take note of how eloquently he spoke. One of the keys in making an eloquent speech is to make only one or two points. He did that admirably. It was a dynamic speech.

The bad news is that I disagree with the two points the member made.

First, I have always had difficulty talking about the salaries of members of Parliament. I have never thought that salaries should decided by elected officials at any level.

Second, comparing judges and members of Parliament is like comparing apples and oranges. A special independent commission was set up to do the research on a particular occupational group. It did the research and came up with a recommendation that cannot necessarily be applied to other groups because there may be different histories, conditions and situations. It is a more complex situation.

Some members have suggested that it is a delicate topic any time we talk about the salaries of judges in a debate. I am not going to talk about their salaries. It would be a contradiction of the whole point that I am trying to make in this debate, and that is the independence of the legislative branch and the government.

I am not going to comment on whether judges are making too much or not enough, whether the original recommendation was enough, or whether the government's cut is too much. To do so would defeat the whole purpose, which is that we should not have great influence over the judiciary so that it can be independent.

Probably I will vote for Bill C-17, and certainly the Liberals will be supporting it, but only under extreme duress, which I will explain. My point is around the whole argument of the independence of the judiciary.

First, though, I want to reiterate a technical point that I made at the previous reading of the bill. It is related to my jurisdiction as the northern critic for the three northern territories. In the bill, the chief justices in the provinces are so named, but under subsections 22(1), 22(2) and 22(2.1), the bill refers to those who are the chief justices in the territories as senior judges. This is an archaic definition.

There have been no objections in the House to harmonizing these terms. The three territorial governments have suggested that the titles be harmonized. The federal minister of justice at the time and the judicial council also have recommended that this be modernized and updated so that the senior judges in the territories would also be called chief justices. As we see in the bill, they have the same responsibilities and receive the same remuneration. They should also receive the same title. I hope that technicality in the bill can be changed.

I would like to thank the justice minister. After discussions, the Minister of Justice has taken this suggestion to the Prime Minister, who apparently has to make that decision. Hopefully he will make this change so that we can get this technical improvement people are asking for and we can change the title of senior judge to chief justice so they are all the same.

As the representative for the north, I am totally in favour of the discussions related to the northern allowance and the added costs of doing business and living in the north that are covered in this bill.

I would like to comment first of all about some of the witnesses. I think the first group of witnesses we had at committee was the commission that determined these salaries. I must say that, just like some of us, they were apoplectic when I talked to them personally about this decision that had been made. They were not apoplectic that their decision had been changed, but that the process had been politicized.

They had given their report to the previous government, which had agreed with the report and was going to maintain that independence of the judiciary with no serious reason to question it. All of a sudden, a new government came in and changed the recommendations. What had changed from one day to the next?

The members of the committee thought that was an exceptional politicization of the process and exactly what was not supposed to occur. They were trying to create the independence of this commission, so it would not have political or legislative interference in the judiciary.

The reason that was given at the time was the cost, that the government could not influence its agenda the way it wanted to. Really, except for a few members on the Conservative side of the House, I do not think anyone could really understand or accept that a minor amount of $3,000 in the scope of the entire Canadian budget would stop a government from implementing its agenda, in particular at a time when there is a $13 billion surplus. It is really ludicrous to even consider that argument.

On top of that, the government has more cash than it ever expected to have. It cut the Kelowna accord which is $5 billion extra. The day care agreements that we had with the provinces would be $10 billion or $15 billion more. The government also let a number of excellent greenhouse gas programs expire, such as EnerGuide, so there was all sorts of extra cash. If we were to go with that rationale, the government would probably have too much cash and should be paying the judges more. It just does not wash.

I would like to present more evidence and more opinions to the same effect.

The way the system has been set up to maintain an independence of the judiciary begins with this independent commission. That commission had a member from the Canadian Superior Court Judges Association and a member from the government. They then chose the chair. This commission makes recommendations regarding benefits for judges. Unless there are serious reasons, and it is very specifically laid out as to the definition of those reasons, Parliament would approve those and make the final decision. However, as I was just suggesting, the government did not give any serious defensible rationale under the guidelines and description that the Supreme Court of Canada gave.

When we were decrying the very sad and senseless cutting of the Law Reform Commission, the justice minister suggested there were a number of other bodies that could give advice to government. One of them that was suggested was the Canadian Bar Association, which, by the way, said at that time that it was shocked that the government would suggest that, because it did not have the resources and time to do all the good work the Law Commission was doing.

Nevertheless, if the government wants to use the Canadian Bar Association instead of the Law Reform Commission, let me just quote what the Canadian Bar Association submitted to the committee on this bill, which backs up what I was just saying.

In its submission, it said:

The CBA is concerned that the government response fails to pay adequate heed to the constitutional imperative to depoliticize the process of setting judicial salaries and benefits, in accordance with the principles set out by the Supreme Court of Canada.

So, it is not just coming from me or from this side of the House and some of the other speakers we have heard. It is coming from the Canadian Bar Association, who the minister himself said was an excellent body to provide advice to the government.

It went on:

More particularly, the government response fails to provide adequate reasons, and evidence in support of those reasons, to deviate from the salary recommendations in the 2003 commission report.

In fact, it went on further. The whole basis of the point that I am trying to make today reflects on the independence of the judiciary. It is, as the Canadian Bar Association says: “An independent judiciary is a cornerstone of a democratic society”.

I am sure all parliamentarians agree with that basic foundation of our constitutional democracy, of law and order acceptance in Canada, and that there is a total separation of the judiciary and the legislative process. How could we have powerful legislators telling judges or influencing judges in their decisions: who they convicted, what they did, and the types of sentences? Would that be fair? Would that be equal justice before all? Of course not. I am sure every parliamentarian would agree with that.

The independence of the judiciary is referenced in the Constitution and it is just a cornerstone principle. As the Canadian Bar Association went on to say: “An independent judiciary is 'the lifeblood of constitutionalism in democratic societies'”.

So, it is this principle that I am basing my arguments on today. I do not think anyone would suggest that if they were getting paid by someone, someone influencing their salary, that it would not have an influence on their decisions. Certainly, with regard to all the employers I have had over my life that were paying me, I took some deference to their opinions and views. That is exactly why an independent commission was set up that had to have serious reasons for altering its recommendations.

I want to go on to present further comments on the report and those reasons as identified by the Canadian Bar Association.

The CBA believes that the government response is so generalized and so lacking in particulars that it fails to give a meaningful effort to the 2003 commission report.

The government submitted two reasons. The second reason that it provided, a technical reason, and I give it credit, was actually accurate. It was accepted by the bar commission as a potential minor reason for some modification of the report. But it had this as the second reason.

Its first reason, which was given much more prominence in the view of the Canadian Bar Association in its decision, had no waiting specified in its decision, so it would be hard for observers to make an evaluation to that effect. However, it seems to give to the knowledgeable observers far more credibility to the first rationale which was not found to be acceptable and was not found to fall within the Supreme Court guidelines, and was not acceptable as a reason.

So, under those circumstances, the Canadian Bar Association just said that this is not acceptable, this does not maintain the independence of the judiciary and so, these changes are not appropriate. In fact, it suggested the best outcome for the judicial independence would be for Bill C-17 to be amended without delay to compare with the recommendations of the 2003 commission report.

I guess in the long run that would be best. However, we live in the real world, the day-to-day world. We also have to take into account other ramifications.

Judges must now wait for three years out of a four year cycle. It is about to start next year again and this decision is holding up the whole process.

Certainly, I personally do not mind doing it on a matter of principle, but on the other hand, through these technicalities, I do not want to hold up the process. The judges need to get on with their lives. The process can start again next year and we hope these considerations will be kept in mind.

I hope that in the future this will be a good warning to those people involved in the process to remember the great Canadian principle, that of modern constitutional democracies, which believe in the rule of law and that the independence of the legislature and the judiciary should be maintained. That is a very important principle of our society.

In conclusion, I have one last reference to a report from the Canadian Bar Association to substantiate that. It says that if we carry on like this with the government bill as is, it further risks damaging the judicial independence and public support for the administration of justice.

We certainly do not want that to happen. As previous speakers have said, we have one of the most honoured justice systems in the world. People from around the world are looking to our retired judges to lead worldwide initiatives. There is great credibility and part of that credibility is based on the independence of the judiciary to do its best. I hope I have made that point strongly today and that it will be thought out carefully in the future when this process comes back to us in the not too distant future.

Topic:   Government Orders
Subtopic:   Judges Act
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BQ

Robert Carrier

Bloc Québécois

Mr. Robert Carrier (Alfred-Pellan, BQ)

Mr. Speaker, I listened carefully to my official opposition colleague's speech.

Since becoming a member of Parliament, I have been meeting a lot of groups from my riding. I have met people living in seniors' homes who complain about the paltry increase in the guaranteed income supplement offered to pensioners. The rate of increase is very low and does not keep up with the increase in the cost of living.

I would be very unhappy if we were to adopt the bill before us today, which offers a 7.25% increase. A raise like that would make people from every walk of life jump for joy. How many people currently find themselves in a difficult situation?

Earlier, my colleague from Roberval—Lac-Saint-Jean talked about all of the older workers and people losing their jobs in Roberval, people who are affected by the government's repeated delays in implementing assistance programs that could help them meet their needs. They have no income.

How can we support the increase proposed today when there is already an indexation mechanism that has been used for parliamentarians, among others? The mechanism has proven reasonable, and it should also apply to pay increases for judges.

How can the member justify supporting this pay increase to his constituents, who are certainly not all financially well off?

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Subtopic:   Judges Act
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LIB

Larry Bagnell

Liberal

Hon. Larry Bagnell

Mr. Speaker, the point I was making throughout my entire speech would make it inappropriate for me to answer the member's question specifically on the judges' remuneration because the point I was making is that it is not our decision. As legislators, we should not be commenting on that.

We should not be trying to influence judges one way or another. If people know that a group has charge over their salaries, how are they possibly going to be independent, so I will not comment on their salaries. There are 30 million other Canadians. Someone else should be making those recommendations, not us. We should not be interfering, whenever possible, in those salaries. The Supreme Court set up a mechanism to somewhat preserve that independence.

If the member would like the escalator he was talking about to be a new system to be put in place, there is nothing to stop the Bloc Québécois from suggesting that system. However, I agree wholeheartedly with his point about the disadvantaged people and the seniors trying to get back to work. We had studies on that. For how long did we put in a program? How many seniors are being covered?

The government has attacked the most vulnerable since it came into power. We have income tax cuts and business cuts, which I would have been totally in favour of if they had been even across the board, but the increase in income tax from 12% to 12.5% has hurt the poorest segment of society. Why would it give university students enough for a $70 book when, as a student told me the other day, books cost $200 each? We were offering $3,000. Why, when the government has a $13 billion surplus, would it not, as we did, increase the guaranteed income supplement? Why would it reduce the amount available for the basic deduction for the average person when there is a $13 billion surplus? Everyone should have had the benefit of those extra funds.

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Subtopic:   Judges Act
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NDP

Alexa McDonough

New Democratic Party

Ms. Alexa McDonough (Halifax, NDP)

Mr. Speaker, I found overwhelming favour with the position of the member for Yukon. He has a very clear understanding of the importance of an independent judiciary and he appreciates the importance of having an independent commission determining the level of remuneration for the judiciary as part of maintaining that independence of the judiciary.

Given how cogent the member's arguments were and how clear an understanding the member seemed to have on why the independence in the judiciary must be maintained, I am totally buffaloed as to why he would, at the beginning of his comments and again at the end, say that he will be supporting the bill, a bill that is being widely criticized for doing precisely what he has indicated is indefensible and unacceptable.

I know he said that he would be doing it under extreme duress, and I guess I would like to hear him explain that a little bit more. The only other argument that I heard for why he was rationalizing support for the bill was a sort of pragmatic argument. It was not based on the important principles that he himself showed an understanding of. I guess I find this doubly puzzling because, if there were ever an important principle worth fighting for and worth preserving, and refusing to allow to be eroded in any way, it would be the independence of the judiciary because it is a fundamental cornerstone of a democratic society.

I do not want to misinterpret the member's comments, which is why I am asking for further interpretation. I think the member said that three years has now gone by since the four year independent review process was set in motion. As an argument, I could say that since we are almost at the end of the four years and we need to start the process over again, why not just hold our noses and pass this under duress and then we will...what? Respect the independence of the commission the next time around?

I do not want to be provocative about it but it seems that the Liberals did not really act on what needed to be dealt with and now we are three years into the process. I find it terrifying what the government is up to because it is not just an isolated thing. It is about a frontal assault on the judiciary on many fronts: the elimination of the court challenges program and the Law Reform Commission.

The government has only been in power for eight months. Where have the Liberals been in dealing with this with dispatch?

Topic:   Government Orders
Subtopic:   Judges Act
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LIB

Larry Bagnell

Liberal

Hon. Larry Bagnell

Mr. Speaker, we certainly tried to act on this. I think the member's colleague on the justice committee mentioned that we tried to bring forward amendments but we were ruled out of order because we could not have a royal recommendation at the time. We did everything in our power under the present procedures to get this point across and to implement it in committee.

At the beginning of my speech I said that I would probably vote for the bill but that it would be under duress. My speech gave all the reasons as to why I had a problem with it. After discussions with most of the people involved, they do not want this to hold up the next process, which, in a way, would hold up the operation of an independent body and the independence of the judiciary. They could not get started on the next round if we were holding it up because of technicalities on a case that I seem to have no chance of winning.

As I said, I may or may not vote for it but the people involved would like us to get on with it. We may have lost this round but we have certainly inflicted enough damage that people will consider this more seriously the next time. I totally agree with the member that this is a fundamental principle of our law-abiding, law-respecting constitutional democracy and we cannot stop fighting for it.

Topic:   Government Orders
Subtopic:   Judges Act
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November 9, 2006