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Speech in Senate Chamber: Senator Cools speaks to Bill C-12, An Act to amend the Judges Act and to amend another Act in consequence, setting judges' salaries, at second reading.

On the Order:

Resuming debate on the motion of the Honourable Senator Grafstein, seconded by the Honourable Senator Cook, for the second reading of Bill C-12, to amend the Judges Act and to amend another Act in consequence.

Hon. Anne C. Cools: Honourable senators, at the outset, I wish to state definitively that I do not take issue with either the actual quantum or the fact of salary increases for section 96 judges in this bill. Judges should be well remunerated. My concerns are the process and the persistent alienation of Parliament from this process of fixing judges' salaries, which is contrary to our notion of judicial independence, that constitutional convention that supports the proper exercise of power within proper constitutional relations between cabinet, the judiciary and Parliament. Canada never had the American separation of powers doctrine. Instead, we had responsible government, meaning that powers are not separated but are fused in responsible ministers of the Crown. Our Constitution chose to separate the personalities exercising the powers and not the actual powers. In my speeches on Bill C-37 on September 22, October 27 and 28, 1998, I spoke against a permanent Judicial Compensation and Benefits Commission. Judicial access to and judicial control of the public purse is unparliamentary and even hostile to Parliament.

Honourable senators, on February 15, 2000, a National Post article about the commission's work by Luiza Chwialkowska was entitled, "Judges press for 26 per cent raise: Government resists: `Shocked' and `disappointed' by refusal to ante up." It reported that:

In sharply worded comments to a hearing of the Judicial Compensation and Benefits Commission yesterday, a representative of the 1,016 federally appointed judges in Canada described the current salary level of the judiciary as "grossly inadequate."

The judiciary is "shocked" and "disappointed" by the government's refusal to increase judges' pay, said Yves Fortier, a Montreal lawyer.

"The government has let its frugality cloud its objectivity," Mr. Fortier said. "The judges of Canada were very disappointed with the government's manifest venality in rejecting out of hand the substance of the conference's recommendations."

The National Post quoted the judges' lawyer, Mr. Fortier, again, saying:

What might be adequate to ensure financial security of the judiciary is quite inadequate to attract outstanding candidates to the bench...

and concluded:

In addition, judges complain that their salaries are far out of line with those of senior lawyers. According to the judges' figures, the top-paid third of lawyers in Ontario earned on average $381, 239, with some earning more than $700,000.

This jolted the public's sensibilities. Needless to say, Parliament's interests or opinions were never considered even though the British North America Act, 1867, section 100 states:

The Salaries, Allowances, and Pensions of the Judges of the Superior... courts... shall be fixed and provided by the Parliament of Canada.

The judges and their lawyer spoke as though the government is Parliament.

Honourable senators, Bill C-12's contents are not a parliamentary proposition. Also, Bill C-12's proposed salaries are not open to any input whatsoever from members of Parliament. These salaries before us have not been fixed by Parliament, and it is unparliamentary to say that they are. This bill is contrary to the principles of judicial independence and contrary to the principles of responsible government. Its proposals are an executive action from judges in their executive capacity, executive in content, in form and in substance. They defeat and oust Parliament's constitutional role in the BNA Act's section 100 in determining the salaries of judges. This overthrow of Parliament with the Attorney General's support is a grievous matter. It overthrows 400 years of constitutionalism and reinstates the old mischief, that fraternity between the executive and the judges. I shall review the legal, constitutional and parliamentary history of the words "fixed and provided" by the parliament.

Honourable senators, for this we must look to the Stuart kings, the United Kingdom's civil wars, and to the role of the judges therein, particularly to the consequences for judges who angered the king and the consequences to society when judges curried the king's favour, his pleasure. The need for judicial independence stems from judges seeking the royal pleasure, be it the governor's or the cabinet's approval, from judges being the pawns or the partisans of the ruling elite. The most notorious case was Judge George Jeffreys. He presided over the "Bloody Assizes" of 1685. King James II's royal pleasure included appointing him Lord Chancellor in 1685. Judge Jeffreys' judicial activities were ruthless and murderous. His ordered executions of the king's enemies numbered hundreds, his convictions thousands. Upon King James II's forced abdication in 1688 by the Glorious Revolution, Judge Jeffreys was arrested and died four months later in the Tower of London. The new King William of Orange and Queen Mary immediately re-established judicial appointments "during good behaviour," the tradition prior to the Stuart kings' peculiar use of "at pleasure" appointments. William and Mary, however, declined to include "during good behaviour" and the judges' salaries in their settling bill, the Bill of Rights, 1689, lest the actual payment of judges' salaries would fall to them or be left to their charge. However, in 1701 the Act of Settlement did. It stated:

...Judges Commissioners be made Quamdiu se bene gesserint, —

— which means during good behaviour —

— and their Salaries ascertained and established; but upon the Address of both Houses of Parliament it may be lawful to remove them.

The constitutional resolution of the judges' position was to place the judges under the protection and the superintendence of Parliament.

Honourable senators, judges' salaries were not ascertained or established by Parliament for 100 years. In the United Kingdom, the Consolidated Revenue Fund was only established in 1787 by Prime Minister William Pitt the Younger, advised by Adam Smith, author of The Wealth of Nations. No total salary of a judge was charged upon the Consolidated Revenue Fund until 1830. After the Act of Settlement 1701, the independence of judges was viewed as sufficiently secured by the good behaviour clause in their patents, resting on statutory authority fortified by the statutory fact that any attempt by the king, the prime minister, or the cabinet to remove a judge would subject the removing minister or king to Parliament. Further, only by the Supreme Court of Judicature Act in 1873 were the salaries of judges ascertained and established in the true sense.

Honourable senators, I turn now to the political history of the judges in Canada, their relationship to Parliament, politics, and judicial independence. The problems were large. Judges and their oligarchies dominated politics in both Upper and Lower Canada. Judges were closely involved in politics, and sat as members in legislatures. In 1792, when Lieutenant-Governor John Graves Simcoe delivered the Throne Speech to the first sitting of Upper Canada's Parliament, the then Speaker of the Legislative Council was Upper Canada's Chief Justice William Osgoode, who was also a member of the Executive Council. In Lower Canada from about 1809 to 1830, Jonathan Sewell was simultaneously the Chief Justice of Lower Canada, the President of the Executive Council, and the Speaker of the Legislative Council. Lower Canada's Assembly even impeached him for his political involvement. Judges' role in politics was a live and difficult political question in the Canadas, even in the rebellions.

Honourable senators, in pre-Confederation Canada, separating the judges from politics was a major political task. In Upper Canada, it was undertaken by Legislative Assembly members, William Warren Baldwin, his son Robert Baldwin, William Lyon Mackenzie, and other emerging Liberals then known as the Reformers. These men braved — and brave it was — the Tory Family Compact with its peculiar legal and judicial oppression, often supported by the magistracy and the Attorney General. In Upper Canada, the movement for responsible government was closely intertwined with that to separate judges from politics. William Baldwin was the first to propose that, to remedy Upper Canada's evils, the judiciary must be excluded from the councils. Reformers endeavoured to get the judges out of politics, off executive councils, and out of legislative chambers, and simultaneously to uphold the political notion of judicial independence in a political and parliamentary way. These emerging principles of Liberalism by antecedent Liberals, then named Reformers, prevailed in our Constitution.

Honourable senators, Reformer William Lyon Mackenzie, York's member of the Assembly, grandfather of Liberal Prime Minister William Lyon Mackenzie King, in a petition and address to His Majesty, King William IV, adopted unanimously on July 16, 1831, in describing the ills said:

...for there is not now, neither has there ever been in this province, any real constitutional check upon the natural disposition of men in the possession of power, to promote their own partial views and interests at the expense of the interests of the great body of the people.

The address continued:

The undue advantages thus possessed by persons in authority, open a door to the practice of bribery and corruption in every department of the state....

The address' recommendation 9 stated:

That none of Your Majesty's enabled to hold seats either in the executive or legislative councils, or in any way to interfere and concern themselves in the executive or legislative business of the province.

This was a huge problem. This address was published in Margaret Fairley's 1960 book, The Selected Writings of William Lyon Mackenzie 1824-1837. In 1832, in England, William Mackenzie met Whig Secretary of State for the Colonies, Lord Goderich. For this, the Tory Family Compact increased their attacks on Mackenzie.

Honourable senators, sympathy for the Canadian Reformers' constitutional positions had grown among British Whigs. Gerald Craig, in his 1963 book Upper Canada: The Formative Years 1784- 1841, wrote:

The reformers also complained of the presence of the Chief Justice in the executive council, and of his role as Speaker of the legislative council, and of the presence of other judges in the latter body. Sir Peregrine Maitland vigorously combatted reform accusations, but by 1831 Lord Goderich was prepared to concede the point.

The same problems pertained in Lower Canada, but it was the Upper Canadians who upheld judicial independence and responsible government. On February 8, 1831, the same Whig Secretary of State, Lord Goderich, in his instructions to the Governor in Quebec, stated:

I am to signify to your lordship his Majesty's commands to communicate to the legislative council and assembly, his Majesty's settled purpose to nominate on no future occasion a judge either as a member of the executive, or legislative council of the province. Whatever reliance might be placed on the personal integrity of the judge, it is desirable that they should be exempted from all temptation to interfere in political controversies, and even from a suspicion of any such interference.

The single exception to this general rule will be that, the chief justice of Quebec...

In Upper Canada, by 1834, Reformers were carrying public opinion and had begun to dominate the legislative assembly.

Honourable senators, the tragic rebellions in both Upper and Lower Canada unfolded in 1837. Whig Prime Minister Lord Melbourne sent Whig Lord Durham to investigate these affairs. The Baldwins, William and Robert, personally met with Lord Durham here in Canada and had a positive effect. In 1839, in Lord Durham's "Report on the Affairs of British North America," he recommended that:

The independence of the Judges should be secured, by giving them the same tenure of office and security of income as exist in England.

Months later, December 7, 1839, and before the Union Act 1840 passed in Britain, Lord John Russell, the Colonial Secretary, instructed the new Governor General of British North America, Charles Poulett Thomson, later Lord Sydenham, to conduct affairs according to the constitutional principles of the not-yet- passed Union Act, saying:

In our anxiety thus to consult, and as far as may be possible, to defer to public opinion in the Canadas on the subject of constitutional changes...

— and —

...the settlement of a permanent civil list for securing the independence of the judges, and to the executive government that freedom of action which is necessary for the public good...

Honourable senators, a year later the Union Act 1840, uniting Upper and Lower Canada as the United Province of Canada, was enacted. Its clause L said:

And be it enacted, That...all Duties and Revenues...shall form one Consolidated Revenue Fund...

Its clause LIII said:

And be it enacted, That, until altered by any Act of the Legislature of the Province of Canada, the Salaries of the Governor and of the Judges shall be those respectively set against their several Offices in the said Schedule A;

The Schedule A listed the judges and the salaries. These events — the Union Act, plus Upper Canada's 1834 Act entitled An Act to render the Judges of the Court of King's Bench in this Province independent of the Crown, about appointing judges during good behaviour plus the Reformers ascendancy, epitomized in the Reform co-premiership of Robert Baldwin and Louis-Hippolyte LaFontaine's actions — founded the Judicature sections of Confederation's British North America Act, 1867, being Part VII, sections 96 to 101.

Upon Confederation, honourable senators, Prime Minister John A. Macdonald made himself the Attorney General and Minister of Justice, knowing well their importance and the difficulties. In fact, he himself drafted the 1868 Department of Justice Act.

Honourable senators, the first dominion act about judges' salaries was the 1868 Act respecting the Governor General, the Civil List, and the Salaries of certain Public Functionaries. From 1868 to 1906, judges' salaries were enacted by varied, disconnected and sundry individual statutes. Some of them even named the individual judges who were being remunerated. In 1906, the first comprehensive act was enacted as the Judges Act. Its long title was an Act respecting the Judges of Dominion and Provincial Courts.

Honourable senators, the post-Confederation Dominion Parliament chose to implement from section 100 the words "fixed and provided financially," not by Parliament's usual financial annual process, the Supply and Estimates process, but rather by direct charge against the Consolidated Revenue Fund; that is, by a statutory charge. Parliament's reason for this exceptional statutory charge versus the annual Estimates Supply practice was obvious. It was to avoid judges' salaries being motions for non-confidence votes, which could defeat a government or cause a ministry's resignation and force an election on the ever-thorny issue of judges' salaries. In short, it was to avoid a confidence vote by a member moving a reduction to the government's Estimates to reduce some judge's salary, perhaps because of a ruling that some particular member simply did not fancy. I would ask honourable senators to think about that: an election forced on the question as to whether or not judges should be paid $700,000 per year, plus pensions, plus cars and plus expenses.

The Hon. the Speaker: Senator Cools, I regret to advise you that your 15 minutes have expired. Are you requesting leave to continue?

Senator Cools: Yes, I am.

The Hon. the Speaker: Is leave granted, honourable senators, for a further period of five minutes?

Hon Senators: Agreed.

Senator Cools: Honourable senators, I had opposed a permanent Judicial Compensation and Benefits Commission. This commission is an unaccountable agency with quick access for certain chief judges to the Deputy Ministers of Justice, to the machinery of government and to the Consolidated Revenue Fund. This defeats the historical, moral and political purity of judicial independence and ousts the true parliamentary role in the fixing of judges' salaries. It deprives Canadians of their undoubted constitutional right to their representative parliament's control over the public purse in respect of judicial salaries.

Again, honourable senators, I shall cite a legal opinion by York University Law Professor Peter Hogg that is found in Martin Friedland's 1995 book A Place Apart: Judicial Independence and Accountability in Canada, which he wrote for the Judicial Council. This 1989 legal opinion was given to and paid for by the Canadian Judicial Council. It was about judges' attempts to bind Parliament to the judicial commission's recommendations by negative resolution and about the words "fixed and provided" contained is section 100 of the BNA Act. Professor Hogg wrote:

...the inaction by Parliament is insufficient participation in the process to enable one to say that the salaries have been fixed by the Parliament. It seems more natural to say that the salaries have been fixed by the tribunal, and left undisturbed by the Parliament.

Honourable senators, in conclusion, the current scheme of fixing judges' salaries excludes Parliament. It is unparliamentary and it is a constitutional vandalism. Proper respect for the justices is time honoured, grounded in constitutional comity and the proper constitutional relations amongst cabinet, the justices and Parliament, all fortified by judicial independence. Judicial independence is a constitutional convention, a political rule of political morality to guide the exercise of power by the constituent parts of the Constitution.

Proper respect and proper protection of the judges is best achieved by upholding the representative role of Parliament and its rights and duties in the protection of judges. Judges have made themselves judges in their own cause and in their own cases; mainly their salaries. It is unhealthy to any nation's Constitution that judges should determine their own limits and boundaries in law, as they have in their judgments on their own salaries.

Honourable senators, thank you for your attention. As I have said, I take no issue with the quantum or the fact of salary increases to judges in Bill C-12, but I do take strong issue with this very flagrant violation and exclusion of Parliament.

The remainder of this day's Senate Debates available here.