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Speech in Senate Chamber: Senator Cools speaks to Bill C-37, An Act to amend the Judges Act and to make consequential amendments to other Acts, at second reading, and questions why the Minister of Justice has brought judges' salary increases amidst contentious clauses.

On the Order:

Resuming debate on the motion of the Honourable Senator Moore, seconded by the Honourable Senator Ferretti Barth, for the second reading of Bill C-37, to amend the Judges Act and to make consequential amendments to other Acts.

Hon. Anne C. Cools: Honourable senators, I rise to speak to second reading of Bill C-37.

Honourable senators, we should note that only one clause - clause 5 - of this 21-clause bill concerns a pay increase for Canada's section 96 judges. The other 20 clauses are not related to the pay increase. I raise no objection to this pay increase for judges. I am proud to serve in a Parliament that historically has ensured that judges are well remunerated and protected. Our parliamentary practice has held that bills on judges' salary increases should proceed in Parliament without controversy and with agreement directing ministers that judges' salary bills should proceed with clarity and single purpose.

I do not take issue with clause 5, but I do take issue with the thrusts of this bill that are not salary increases, or even necessary to the increases, but rather, bear directly on other public policy issues, particularly accountability to Parliament for the public purse. The fact that the Minister of Justice has brought this judges' salary increase amidst a sea of contentious clauses makes Bill C-37 a troubling bill which challenges our parliamentary customs and usage.

Honourable senators, I turn now to clauses 1, 9, 10 and 11. In the September 12, 1998 Ottawa Citizen, there was an article entitled, "A Family Law of Their Own: Why does Willard Estey say new legislation will create a 'home-made harem' for Canadian judges?" Author Glen McGregor reported:

Former Supreme Court Justice Willard (Bud) Estey says proposed amendments to the Judges Act will give his former colleagues on the bench the right to a 'kind of home-made harem.'

Former Justice Estey stated:

Under the constitution, the province has the primary inside track on forming the marriage - solemnization, if you will . . . What's strange is that this statute purports to allow the federal parliament to redefine what a spouse is.

He also stated:

Why should a judge have the privilege when nobody else does? . . . If you give him a benefit and a privilege others can't have, there's a resentment between the people the judge is serving and the judge himself. That's wrong.

These clauses would create a regime in law, wherein a judge can have double spouses, and also encourage that judge not to divorce his married spouse and not to settle financially with the married spouse.

Clause 11 states:

Section 46.1 of the Act is replaced by the following:

46.1 When a judge dies while holding office, a lump sum equal to one sixth of the yearly salary of the judge at the time of death shall be paid to the surviving spouse of the judge or, if there are two surviving spouses, to the spouse who was cohabiting with the judge at the time of death.

Honourable senators, this indelicate clause invites public odium. These clauses offend since they would supersede all separation and divorce agreements of judges, even to render divorce unnecessary. This law solely for judges is a reach into provincial family law. I object to these clauses.

Honourable senators, historically, one justification for the very high pensions for justices has been Parliament's wish to protect their spouses, traditionally women. I have met with judges' wives, women separated but not divorced, whose circumstances will be adversely affected by these clauses. In their representations to me about these clauses, and solely these clauses, these judges' wives were discreet and mindful of the delicacy of their own positions and of their husbands' judicial offices. I thank those women for their propriety.

Honourable senators, all human beings - judges, too - experience tribulation in their personal lives. The private is private. However, no private matter must become public policy just because some have their hands on the nation's legislative machinery and can shape the law to meet their particular needs. In short, all human beings - judges, too - are sinners, but few can script their sins into statute. I submit that when some script their sins into the laws of the nation, the result is bad law and bad public policy. I have spoken here about the unholy alliance between certain judges and the Department of Justice's parliamentary engineers. This unholy alliance, this marriage between the Department of Justice and certain judges, is begging correction. This department frequently sends us bills described as housekeeping and straightforward but which are not. Bill C-37 is not about salary increases for judges.

Honourable senators know the current public unease about certain judicial activities, particularly the judiciary's politicization. Recently, there has been a plethora of critical articles about Supreme Court of Canada Chief Justice Antonio Lamer's public statements on August 23, 1998, in Newfoundland. This politicization of the judiciary is a great political question that has seized the public mind. The commentary includes headlines like, "Curb the Judicial Godzillas." John Crosbie, Minister of Justice from 1984 to 1986, in a speech to the Canadian Bar Association, published under this headline in The Ottawa Citizen on August 27, 1998, said:

Now we have a situation where the judges in Canada are the godzillas of government with the legislative and executive branches becoming the Mickey Mouse of government.

Honourable senators, I turn now to clause 6 of this bill, which has its origin in the 1997 Supreme Court of Canada judgment in Reference Re Remuneration of Judges of the Provincial Court of Prince Edward Island [1997] . . . 3 S.C.R.3. It amends the Judges Act at section 26 to establish a Judicial Compensation and Benefits Commission as a permanent commission. It is a surreptitious attempt to amend, to defeat the Constitution Act, 1867, section 100, which states in part:

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

Clause 6 would diminish Parliament's role in the public expenditure and in determining the salary of judges.

Honourable senators, the historical problem of judges has been the Sovereign's control over them, particularly when they invited either the Sovereign's pleasure or displeasure. The United Kingdom's Act of Settlement 1701 sought to secure judges by assigning their protection, mainly tenure and salaries, to the people's representative assembly, the Parliament. In pre-Confederation Canada, the development of the judges' current position paralleled the development of ministerial responsible government and led to the Constitution Act, 1867, sections 99 and 100.

The post-Confederation Parliament chose to implement section 100 to fix and provide financially, not by Parliament's usual financial annual process - the Main Estimates supply process - but rather by direct charge against the Consolidated Revenue Fund. In parliamentary lexicon, it is a statutory charge. Parliament's reason for the exceptional statutory charge versus the annual Estimates Supply practice was the avoidance of judges' salaries becoming non-confidence votes, which force a fall of the government, a Ministry's resignation, and cause an election - simply put, the avoidance of an election on the ever-thorny issue of judges' salaries.

Can you imagine an election on this bill, honourable senators?

Currently, the statutory charge instrument, subsection 53(1) of the Judges Act, originally only applied to judges' salaries - not to staff, nor to bureaucracy, nor to extended agencies or interests. Its intention had been the fixing of judges' salaries as a constitutional, parliamentary and political proposition. However, subsection 53(1) of the Judges Act is now unrecognizable because of certain persistent attempts to swell and exaggerate its use to circumvent the Constitution and the intent of Parliament, and these attempts have been successful and lucrative.

Honourable senators, some interested judges want unbridled access to the Consolidated Revenue Fund. Clause 6 empowers this Judicial Compensation and Benefits Commission to create its own infrastructure and appoint its own staff - a blank cheque and a blanket authority all without proper parliamentary scrutiny. Clause 6 establishes a boundless bureaucracy that is not subject, like most bureaucracies, to Parliament's annual estimate and supply process. Subsection 53(1) of the Judges Act - remember, the exception - has been exaggerated to defeat the purity of the Judges Act and the integrity of the Constitution Act, 1867, and to defeat Parliament's representative public interest as guardian of the Treasury, the Consolidated Revenue Fund.

Honourable senators, this proposed commission is an unaccountable system with ready access for certain chief judges to the Assistant Deputy and Deputy Ministers of Justice, to the machinery of government, and to the Consolidated Revenue Fund. It defeats the historical moral and political purity of judicial independence, and abolishes the true parliamentary role in the fixing of judges' salaries. It deprives Canadians of their undoubted constitutional right to the representative assembly's control over the public purse in respect of judicial salaries. Constitutional scholar Professor Peter Hogg, in a 1989 opinion to the Canadian Judicial Council and the Canadian Judges Conference, in respect of judges' attempts to bind Parliament to the judicial commissions' recommendations by negative resolution, and on the words "fixed and provided," said:

. . . 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.

In Clause 6, the Minister of Justice presents a demand, from some judges, that they set their own salaries. The judgment driving this clause, delivered by the Chief Justice of the Supreme Court, Antonio Lamer, even stated that if legislatures fail to follow their recommendations, they do so at great peril. He said:

Governments are constitutionally bound to go through the commission process . . . Nevertheless, though those recommendations are non-binding, they should not be set aside lightly, and, if the executive or the legislature chooses to depart from them, it has to justify its decision - if need be, in a court of law.

Honourable senators, not only do some interested judges seek our approval for "home-made harems," but the very poachers are demanding under threat that they also be the keepers of the game park. Chief Justice Lamer said that we may have to justify ourselves in a court. Senators should ponder this. This means that individually or collectively we may find ourselves in court, subject to the punitive powers of the very judges who demand that we agree to the salaries they want. Since Parliament is not subject to the courts, only individual members are, does the Chief Justice mean that some individual senators could find themselves before him, subject to his unappealable summary contempt of court powers, imprisonment, for work in this chamber?

There is no constitutional obligation to enact this dubious clause, the very intention of which is unparliamentary. This proposition is so undemocratic and unrepresentative, so interest bound, that it is an insuperable threat to judicial independence and to Parliament itself. It also places ordinary judges under the thumb of the chief judges.

Honourable senators, Justice Lamer's judgment that drives clause 6 is unparalleled for its activist leaps beyond the law into politics. It is a stretch, an expensive stretch, contrary to Canada's constitutional and parliamentary history. Mr. Justice Gerard La Forest's dissenting judgment, delivered shortly before departing, is damning. He said:

. . . I cannot concur with his conclusion that s.11(d) forbids governments from changing judges' salaries without first having recourse to the "judicial compensation commissions" he describes.

Asserting that the Charter protection of section 11(d) redounds to the accused, not to judges, he said:

Such persons are the sole beneficiaries of the rights set out in s.11(d).

Our Charter is about citizens' rights, not judges' rights. About section 11(d), he continued:

It does not require legislatures, however, to establish what in some respects is a virtual fourth branch of government to police the interaction between the political branches and the judiciary.

Justice La Forest spoke forcefully in strong language about the "unjustified departure from established precedents," and his "grave reservations about the Court entering into a discussion of the matter." He said, "I take issue, however, with the Chief Justice's view . . ." He spoke of "an historical fallacy," and of the judicial thinking which "is to subvert the democratic foundation of judicial review." He said, ". . . the approach adopted by the Chief Justice, in my view, misapprehends the nature of the Constitution Act, 1867", and the Chief Justice's position "seriously mischaracterizes the manner in which judicial salaries are set."

Justice La Forest addressed judicial review and legislative competence and the judges' reach beyond the express text of the Constitution, saying:

Judicial review, therefore, is politically legitimate only insofar as it involves the interpretation of an authoritative constitutional instrument. . . .

This legitimacy is imperiled, however, when courts attempt to limit the power of legislatures without recourse to express textual authority.

He said also:

Requiring commissions a priori, however, is tantamount to enacting a new constitutional provision. . . . Judges, in my opinion, are capable of ensuring their own independence by an appropriate application of the Constitution.

Honourable senators, clause 8 proposes the "rule of 80," to allow a judge to retire at age 60 with full pension. Its origins are the appointment of youthful judges, mostly women, who were appointed in their mid-30s, including Chief Justice Lamer. This clause will deprive the country of the wisdom and prowess of judges' full mental and emotional maturity. It seems that those individuals fortunate to have been appointed so young, now crave to leave the bench prosperously at age 60. Chief Justice Lamer has publicly lobbied for this. In an article in the July 2, 1996 edition of The Toronto Star, entitled, "Retirement a major issue to chief justice," David Vienneau reported that:

Lamer is among those who want the act amended to allow the `Rule of 80'. . . .

Honourable senators, Bill C-37 would overturn Parliament's role, and is driven by judicial careerism and activism, in short, by St. Augustine's libido dominandi, and access to the Department of Justice's largesse. Such munificent largesse, such patronage, was never known by any sovereign king of the United Kingdom. The judicial agencies that draw on the Consolidated Revenue Fund have grown like Topsy, uncontrollably and extravagantly. Public information is almost impossible to obtain as a few judges exercise influence and political will, with no public accountability, all in secret, using the term "judicial independence" as a shielding rhetorical affirmation. Bill C-37 is not about judicial independence, it is about greater access to largesse.

The Hon. the Speaker: I regret to have to interrupt the Honourable Senator Cools, but her 15 minutes have expired.

Senator Cools: May I have leave to continue, honourable senators?

The Hon. the Speaker: Is leave granted, honourable senators?

Hon. Senators: Agreed.

Senator Cools: Honourable senators, the evidence, as per Statistics Canada, reveals that the highest paid persons in Canada in 1995 were the superior court judges, that judicial appointment represents a significant salary increase for most, and that several hundred lawyers seek every appointment. The facts are as follows. Our Parliament has upheld judicial independence and has protected and defended its judges for 130 years. We have a tradition of fine judges who deserve public respect and good pay. They deserve that their salary increase should be a singular parliamentary proposition, a distinct bill, absent controversy and dubious propositions, and consonant with Parliament's financial role and constitutional convention, judicial independence.

Our judges deserve that that bill to increase their salaries should have proceeded without this sort of controversy. Bill C-37 ousts Parliament, and particularly ousts the Senate's peculiar constitutional role in financial legislation, by subverting and corrupting section 53(1) of the Judges Act.

Section 53(1) of the Judges Act, which was intended for the representative parliament's political purpose to grant judicial independence to the public, will have been defeated. Judicial independence is the offspring and the pearl of parliamentary responsible government, the product of the trustful pact between electors and the elected, and of our parliamentary constitutional convention. Constitutional conventions are the political rules and concepts that guide the political relations between the executive, the Crown, and Parliament. They are not laws and are not the business of the courts. They are pure politics and are enforced by expressions of public political will, like elections. They make ministerially responsible government possible. They make it work. Our historical judicial independence has been overturned, as has constitutional comity, and in its stead an unholy liaison between the executive and certain interested judges has been substituted.

Honourable senators, Bill C-37 is about government beyond law and judgments beyond law. I assert that the rule of law is incompatible with these mechanical manipulations of law which subvert the very principle of legality on which our Constitution rests. Parliament and our Constitution never intended that the judges should determine their own salaries. Bill C-37 is an example of judicial dominion over the public purse. Bill C-37 is not a legal question. It is a constitutional question, a financial question, even a confidence question.

Honourable senators, Bill C-37 begs for serious parliamentary study and scrutiny.

Hon. Noël A. Kinsella (Acting Deputy Leader of the Opposition): Honourable senators, I wonder whether Senator Cools would answer some questions to help me understand better her address.

Senator Cools: Happily.

Senator Kinsella: Honourable senators, in the course of Senator Cools' address this afternoon, I jotted down that she spoke of "an unholy alliance between certain judges and officials in the Department of Justice." That is a very serious accusation made within the confines of the immunity which goes with raising issues in a chamber such as this. I should like to ask Senator Cools if she would explicate for us what we are talking about here. I would like to know what this is all about.

Senator Cools: Honourable senators, first, let me thank Senator Kinsella for his question.

As we know, there is a parliamentary tradition here. The issue of protecting judges and judicial independence is of such importance that matters which concern judges' salaries, particularly remuneration, should proceed with maximum support on all sides. As a result of that, over the years, many bills in respect of judges have flown by very quickly with the grand assurance that they are inconsequential amendments or that they are housekeeping or that they are routine.

I say what I say because, on closer examination, quite often, one finds bills with clauses and sections that refer to one or two particular judges. I especially refer to that because in 1996, in relation to Bill C-42, which is still very present in my mind, the department people themselves, in their meetings with me, described the various clauses of the bill as the Lamer amendment, as the Strayer amendment, and as the Arbour amendment.

I would submit to the honourable senator that the majority of Canada's judges are very fine and outstanding citizens and go about their daily business doing the kinds of tasks that they are supposed to do, which is adjudicating disputes between individuals. I would submit to the honourable senator that the average judge does not have a clue as to how to go about having an amendment in a bill put forward that is directed towards his or her particular interest.

Perhaps the language is a bit pointed, but I am trying to say that we have bills coming before us with clauses that apply to one or two or three individual people. If we would go back to the record on Bill C-42 in the instance of the Justice Arbour amendment, I rose on a point of order that it was a private bill, not a public bill, and that it should have come forward as a private bill issue. I hope that answers the question.

Senator Kinsella: I thank Senator Cools for that answer. There is a whole series of issues that one could raise around that topic, but I do not want to go there this afternoon. I would rather go to two other areas.

The senator drew our attention to section 100 of the Constitution, and it provides:

The Salaries, Allowances, and Pensions of the Judges of the Superior, District and County Courts . . . and of the Admirality Courts in Cases where the Judges thereof are for the Time being paid by Salary, shall be fixed and provided by the Parliament of Canada.

I notice, however, that there is a footnote, which is footnote 53, and that footnote reads:

Now provided for in the Judges Act, R.S.C. 1985 c. J-1.

I had understood your argument this afternoon to have been that this bill would have the effect of amending this part of the Constitution.

Senator Cools: It is.

Senator Kinsella: Yet this section, by virtue of this footnote, speaks of the Judges Act in the revised statutes of 1985. My understanding is that this bill would be amending that statute, namely the Judges Act. Perhaps you could clarify your point on that.

Senator Cools: I will attempt to clarify that. As I said before, Parliament has two mechanisms to bring money forward or to bring money out of the Consolidated Revenue Fund. Essentially, most bureaucracies proceed by the annual process of Main Estimates and supply. We know that process.

To back up a moment: Canada has a peculiar and important history on its treatment of the issue of judges. This history even predates what was happening in England. It goes back to 1840 and the Act of Union. I was trying to say that the particular section, the "fix and provide" section, was implemented by the post-confederation parliament by a series of individual acts.

In 1906, Parliament in its wisdom decided to go the route of a particular singular statute which would be called the Judges Act. Section 27 of that Judges Act indicates that:

The salaries and retiring allowances or annuities of the judges shall be payable out of any moneys forming part of the Consolidated Revenue Fund. . . .

Parliament intended that section to provide for the draw on the Consolidated Revenue Fund to pay judges' salaries.

If you could track the history of the development of that particular section, you would see that it stays essentially as it was up till the 1927 Judges Act. In 1946, however, it takes a departure. The term "judges" disappears from that particular section.

My point is that our constitutional mechanism to deliver salaries of judges was to put that clause in the Judges Act. If we follow the development of that clause, we find that the term "judges" disappears from the revised statutes of 1946.

If we were to follow that act to 1997, the equivalent section is section 53(1). Section 53(1) provides for the salaries, allowances and annuities to be payable under this act. No longer is it the term "judges' salaries"; it is the salaries, allowances and annuities payable under this act.

During the past several years, section 53(1) continued to be expanded. It now reads that the amounts payable under sections 46(1) and 51 shall also be paid out of the Consolidated Revenue Fund. We have gone way beyond the salaries of judges. Section 53(1) adds the amounts payable under these different sections of the Judges Act.

Senator Kinsella, I have done a great deal of work on this issue. I am pleased that you have provided an opportunity for me to put this further information on the record. Section 53(1) says that the salaries, allowances and annuities payable under this act and the amounts payable under sections 46(1) and 51 shall be paid out of the Consolidated Revenue Fund.

One of the things with which I took strong issue today is section 46(1), the lump sum payment to the two spouses. That made its way into section 53(1) only very recently, in 1989. Honourable senators should understand that Bill C-37 is asking us to amend the legislation in order to provide a lump sum payment to a common law spouse. That is an amendment of a 1989 amendment, which should never have been made because the intention of that clause in the Judges Act is the delivery of a political and constitutional proposition that we secure judges' salaries, not bureaucracies, nor anything else.

I am answering these questions off the top of my head. I say to you that Parliament's role has been defeated and is being undermined by the exaggeration and the swelling of section 53(1). That is precisely what I am talking about. One of the reasons I chose to respond so strongly to this particular clause on the lump sum payment is that its insertion in 1989 was questionable even then. Therefore, what we have is an additional, questionable proposition on a previously questionable proposition. The rule of law does not countenance such guileful and mechanical manipulation of the law.

Many senators in this chamber are recently appointed, and do not know the language and system of Parliament, and perhaps may get tripped up in some of these technicalities. Honourable senators have a duty to ensure that these technicalities remain proper instruments as originally drafted by some very experienced and well-meaning individuals who intended them to protect Canada's judges.

Canada historically has a reputation for having a clean, incorruptible, beyond-corruption judiciary. Therefore, if I take issue with some of these questions it is because, honourable senators, that is the tradition I was raised to uphold. Many of us grew up on a Liberal tradition of upholding the strength of Parliament, to defend our population and to defend those judges and those judges' families.

I hope I have answered your questions. If I am getting a little emotional, you must understand that I am a Liberal. The Liberal position is for a strong Parliament. This bill is taking us in the opposite direction because it presupposes, quite frankly, that senators may not be diligent but rather inattentive.

Senator Kinsella: Honourable senators, this avenue of inquiry, based upon Senator Cools' address to us this afternoon, is partially a result of her comment that she raises for us a concern that she sees. Senator Cools referred to an unholy relationship between parts of the executive branch and the judiciary. This is particularly troubling because the distinction that we see as being critical in our Westminster model of parliamentary democracy -

The Hon. the Speaker: I hesitate to interrupt you, Senator Kinsella, but is this a further question, or are you now participating in the debate?

Senator Kinsella: Honourable senators, I prefaced my remarks by drawing on comments that Senator Cools had raised in her speech, and I am now asking Senator Cools for an explication of that.

Senator Cools told us many things this afternoon, one of which was her concern that she raises for us on the relationship between the executive and the judiciary. My question for details on that matter from Senator Cools flows directly from clause 6 of the bill, which Senator Cools also underscored for us, as clause 6 proposes this new commission.

I direct honourable senators' attention to page four of the bill, where compensation is addressed.

Proposed subsection 26.1(1) says that the Judicial Compensation and Benefits Commission will consists of three members. Appointed by whom? The Governor in Council. What is the Governor in Council? That is the executive branch.

Is Senator Cools telling us that she has grave concerns and that all kinds of amber lights are flashing in her mind about the relationship between the executive and the judiciary? Here she would have the executive making the appointments to this commission that is to set these salaries. Could the honourable senator comment on that point, to help explain what she was saying this afternoon? We on this side are interested in the role of the executive, particularly as it is exercised by those in the Prime Minister's Office.

Senator Cools: Honourable senators, what I am saying - and I put a lot of work into my speech - is that clause 6 is an attempt to oust Parliament's scrutiny. I have dozens of papers here. I made it my business to study very carefully the report and recommendations of the 1995 Commission on Judges' Salaries and Benefits headed by David Scott. Any honourable senator who reads Bill C-37 will see very quickly that clause 6, which is amending section 26 of the Judges Act by replacing it, presents a problem. The previous section of a bill, which was perhaps six or 10 lines, has been replaced by three pages of "clausery," so to speak. One merely needs to look at the magnitude of that change; a book has replaced three or four lines.

The mandate of this commission is very wide, yet we have been told that it is only a little change because a triennial commission is being replaced by a quadrennial commission. However, we are very quickly able to see the light. Yes, the commission will be appointed every four years but the term of the tenure of the appointments will be four years, which means they are permanent. In addition, the first section in the clause basically says that it empowers the establishment of the commission.

Honourable senators, from reading a lot of this material, including Mr. Justice Lamer's judgment, which every senator here should read from beginning to end, and David Scott's report, one quickly becomes aware of the fact that the term "depoliticize" is used very frequently. One reads that they need to depoliticize the process. The real intent is to remove Parliament from the process. Honourable senators, I submit that we are not living in an era where any minister or any member here would phone up any judge and say, "You have got my brother before you charged with murder. I want you to acquit him." I submit that that no longer happens in our community today. However, I also submit that there is a problem in that certain particular judges seem to crave a closeness to certain individuals at the Department of Justice and are trying to cling, closer and closer, to the Executive rather than to Parliament.

In other words, honourable senators, what is happening here is that 200 years of history are being turned on their head, and we are being told in this judgment that, quite frankly, judges prefer their fate to be in the hands of the Executive rather than in the hands of Parliament. It is a most curious and interesting subject matter.

Just a few days ago, I was reading one of the most definitive statements on this issue of judges' remuneration which was a debate in 1933 in the House of Lords in the United Kingdom. I believe it was Viscount Sankey, the Lord Chancellor who somewhere in the text of that debate suggested that a greater threat to judicial independence was huge increases to judicial salaries with their consent.

Honourable senators, these bills come before us on the assumption that they should be passed without study, without attention. This bill and these issues are commanding our attention and the Canadian public deserves that we study them, because a judiciary is a very special thing because judiciaries have control over the public in their hands.

Honourable senators, I think I have said enough. I hope the committee will call as witnesses some of these people I have mentioned. I hope the committee will call former minister of justice John Crosbie as a witness. I hope the committee will call former Mr. Justice Estey as a witness. I hope that the committee will call people like Graham Eglinton and other great authorities in this country. I hope the committee will call people like Professor Peter Hogg to speak to this issue, because, in the long run, the issue really is the representative Parliament's role in fixing salaries versus an in-house closed set of recommendations.

To be quite frank, many judges are my best friends and I see myself as a defender of the rights of an independent judiciary. I can honestly, truly, say to you that there is a terrible public unease in this country about the administration of justice. Quite frankly, honourable senators, we should take the bull by the horns, look at the issues, and come up with some very sound recommendations.

As I said at the outset, I sincerely believe that the minister should have brought us a singular bill, a single proposition, a bill with one clause, which could have been passed here in a few hours, because then it would have been truly a housekeeping bill. It pains me that so much controversy has grown up around Bill C-37. Our judges deserve better.

Hon. John B. Stewart: Honourable senators, a suggestion has been made that the committee should hear certain persons authoritative in these matters outside the employment of the Government of Canada or the Parliament of Canada. What assurance do we have that, if the bill should be sent to committee, such witnesses will be heard?

Senator Kinsella: Good question.

Senator Stewart: None.

Senator Cools: You are addressing the question to me, Senator Stewart. I thank you for your question. I think the question is very poignant and very profound. Let me say once again that this chamber is honoured to have such a man as Senator Stewart sit here in our presence.

What I would say to the honourable senator is the following: I am not a member of the committee. I submit that I may have difficulty asking questions. However, I feel confident that, if there is a consensus in this chamber that certain witnesses should be called, we can bring that consensus forward and so instruct the committee.

 

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