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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 third reading.

 

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

 

The term "judicial independence" is a political term, not a legal one. It is a political concept, a constitutional convention, one of the many that support parliamentary responsible government and allow it to work. In Canada, the development of responsible government accompanied that of judicial independence, and both accompanied the development of political parties, particularly the Liberal Party of Canada. Responsible government is the system where the Queen's ministers of the Crown are chosen from the elected House and who, in their public actions, in raising taxes and spending tax dollars, are responsible to Parliament under sufferance of Parliament's confidence. Ministers are politically responsible to Parliament on pain of defeat by want of confidence vote. Conversely, the House enjoys the constitutional right to hold the ministers responsible for exercising this power in a manner consistent with the well-understood wishes, will and interests of the citizens who elected them to the House as keepers of ministerial confidence.

In Canada, the representative elected Commons, supported by the appointed Senate, are joint guardians of the national popular interest. Responsibility and ministerial responsibility are not legal concepts, they are political concepts, and they are enforced by politics and politicians in the opinion of the body politic. Constitutions are the social contract between those who govern and those who are governed; the consent of the governed. A constitution is a political relationship between politicians and the electorate, and enacted in the forum of popular sovereignty called Parliament. Thus the Constitution, being the political relationship between Her Majesty's cabinet, Parliament and the judiciary, is guided by political and moral behaviours called Constitutional conventions, one of which is judicial independence; another, ministerial responsibility; and yet another, constitutional comity.

Honourable senators, Bill C-37 is the result of a Supreme Court of Canada 1997 decision of the Matter of a Reference Regarding the Remuneration of Judges of the Provincial Court of Prince Edward Island, and is before us despite the fact that this Supreme Court judgment involved no federal or section 96 judges. In this judgment regarding the case of inferior court judges, the Supreme Court of Canada ruled that judicial compensation commissions are necessary to the constitutional requirements of judicial independence. Recently there has been a plethora of cases and much commentary about judicial independence. The persistent debate in the court, judgments, judges' statements out of court and their continuous pressing of this debate, promotes serious questions, even doubts, about the very premise of that debate; questions which could undermine judicial independence itself.

That different judges, for example, Supreme Court of Canada Chief Justice Antonio Lamer, and then Supreme Court of Canada Justice Gerard La Forest, could take entirely opposite views about the meaning and interpretation of the term "judicial independence" raises serious questions. It raises serious doubts about the authority and the adequacy of their own and previous judicial formulations of the term "judicial independence." This debate in judgment raises serious questions about the meaning of judicial independence and its fitting determination.

Honourable senators, such doubts inevitably arise when judges trench on political ground, because the question of judicial independence is a political one, not a legal one. The questions can only be answered by adherence to the political morality and the politics of the nation from which it was born. The answers are undoubtedly political because judicial independence flows from the concept of the sovereignty of the people, as expressed politically by their parliamentary representatives. Judges adjudicate and interpret statutes in accordance with well-defined, trusted and identifiable legal principles. Their judgments should be legal, not political.

Honourable senators, on this relationship between the courts and the public general will, our own former Liberal prime minister Pierre Elliott Trudeau gave us his retrospective thoughts about the 1980 Supreme Court of Canada's majority decision in the Patriation Reference to the Supreme Court of Canada. In his 1991 speech at the opening of the Bora Laskin Law Library, printed in his book Against The Current, he spoke about this court's journey into politics and the political minefield of constitutional conventions and its consequence for Canada. Mr. Trudeau spoke to the court's politicization, telling us that constitutional conventions are political phenomena created, modified, terminated and sanctioned by political players. He said:

First, they had to find that the aspect of the reference dealing with conventions was indeed a matter on which the courts could legally pass judgment. Courts had often in the past refused to answer questions deemed unsuitable for judicial determination. In this case, because conventions are enforceable through the political process, the courts should not even have engaged in declaring their existence. In choosing to answer the question there is little doubt that the Supreme Court of Canada allowed itself - in Professor Peter W. Hogg's words - `to be manipulated into a purely political role,' going beyond the lawmaking functions that modern jurisprudence agrees the court must necessarily exercise.

Mr. Trudeau continued on constitutional conventions as politics, saying:

In Canada, too, the courts had previously made it clear that conventions could never be legally binding, and that they cannot have any effect on legal powers either. As C.J. Duff put it in the Disallowance Reference: `We are not concerned with constitutional usage...or constitutional practice....We are concerned with questions of law.' And for one fleeting moment, it looked as if the majority judges were going to escape undue politicization of the court...

Mr. Trudeau, in a damming opinion, expressed his retrospective thoughts about that fateful Supreme Court of Canada decision, that:

. . . they blatantly manipulated the evidence before them so as to arrive at the desired result. They then wrote a judgment which tried to lend a fig-leaf of legality to their preconceived conclusion.

Honourable senators, authority Professor Albert Dicey, in his book, Introduction to the Study of the Law and the Constitution, 10th Edition, defining constitutional conventions, wrote:

. . . the rules which make up constitutional law, as the term is used in England, include two sets of principles or maxims of a totally distinct character.

The one set of rules are in the strictest sense 'laws,' since they are rules which . . . are enforced by the courts . . .

The other set of rules consist of conventions, understandings, habits, or practices which, though they may regulate the conduct of the several members of the sovereign power, of the ministry, or of other officials, are not in reality laws at all since they are not enforced by the courts. This portion of constitutional law may, for the sake of distinction, be termed the "conventions of the Constitution," or constitutional morality.

Honourable senators, for judges to interpret or construe words or to fill gaps in public will, that is, to make public policy so that the judicial function becomes a parliamentary function, is inconsistent with our political and parliamentary system. Judicial legislation-making is not contemplated by our parliamentary history, by our political and constitutional morality, by our Constitution, nor by our concept of judicial independence. Simply put, there is no legal, constitutional or political basis for the concept or theory that Parliament is subject to the judges, or that the judges may overrule Parliament or acts of Parliament. Judges must uphold the scheme of parliamentary sovereignty to express the political will of the elected by means of their representatives in Parliament. This political concept gives the judges their legal existence, and establishes the legitimate foundation to judicial review.

Mr. Justice La Forest had stated this strongly in his dissenting opinion. Judges or judicial decisions cannot undermine or weaken the essential, fundamental principles and political morality that found the notion of sovereignty of the people. The foundation for judicial review rests in this democratic representative principle, delivered by Parliament by the use of political parties, and by political rules of behaviour called conventions. Professor Dicey also said in the same book: 

The conventions of the Constitution now consist of customs which . . . are . . . maintained for the sake of ensuring the supremacy of the House of Commons, and . . . of the nation. Our modern code of constitutional morality secures . . . the 'sovereignty of the people.'

Constitutional conventions, particularly judicial independence, are united in their intention and character by the possession of a singular purpose: that of securing Parliament and the government as ultimately subject to the wishes of the electorate. Conventions were a means of harmonizing legal and political sovereignty.

Honourable senators, finally on this point of responsible government and the Liberal Party of Canada, I asserted that Liberal principles were closely intertwined with achieving responsible government, and upholding the convention of judicial independence. A major element in achieving this was the development of the political party, and party politics. Its political existence is largely unnoticed legally, yet our constitutional conventions depend on the party caucus for delivery and enforcement, as does the entire system of responsible government. This is a mystical process that has worked to deliver the liberties, as I quoted William Gladstone in this chamber on October 28.

To Senator Joyal, of whom I requested that this matter be given more time for discussion in the Senate Liberal caucus, I say the following: It is a maxim that a government functions as well as its party caucus functions. This is important, since political parties in Canada are under strain. The evidence suggests that no single party in Canada may be able to reconcile opinion, principles and interests across this nation.

Honourable senators, in Canada there is no formal or legal constitutional separation of powers between the judiciary, the executive and Parliament. The system is not one of separation of powers but one of fusion, one of harmonization. The fusion is by ministerial responsibility. The constitutional powers are fused through responsible ministers and the separation of powers is achieved by our constitutional convention of judicial independence.

In pre-Confederation Canada, the 1840 Act of Union uniting Upper and Lower Canada established the Consolidated Revenue Fund, and charged the judges' salaries against the Consolidated Revenue Fund. Its Article L states:

. . . the Union . . . shall form one Consolidated Revenue Fund . . . subject to the Charges hereinafter Mentioned . . .

Article LIII states:

. . . the Salaries of the Governor and of the judges shall be those respectively set against their several Offices in the said Schedule A . . .

This was the achievement of the Whigs and reformers, and was even an advance over the situation of judges' salaries in the United Kingdom. The salaries of judges were ever problematic, and from the Act of Settlement 1701, were financed by court fees, sales of office, annual grants of Parliament and the civil list. In 1787, years after the Act of Settlement, then British Prime Minister William Pitt, on the influence of Adam Smith, set up the Consolidated Fund. Then, only part of the judges' salaries were charged against it. No total judge's salary was charged against it until 1830, and the process was not completed till 1875.

The notion of Consolidated Revenue charges for judges' salaries fuelled the reform `responsible government' movements, and the embryonic Liberal Party in the Canadas, and accompanied the Canadian reformers' drive to release the hold over public affairs that the judges held as speakers of the legislatures and as members of the Legislative and Executive Councils. The reformers strove to separate the judges from active politics and from political life, and from the legislative, law-making, statute-making, public policy-making functions. This political separation of function and powers is and was achieved by the political convention of judicial independence. This was a worthy purpose, and should be our purpose now.

Honourable senators, the public knows that certain judges have been altering the constitutional balance between the judges and Parliament, and have tilted it toward the judges and judicial supremacy. These judges have undermined their own legitimacy and public confidence. This is a serious and grave political matter. Political judicial activism and our concept of judicial independence are hostile to each other.

Honourable senators will recall Bill C-42 in 1996 and our Senate amendments to it. This chamber voted unanimously that judges' international activities were prohibited, and limited only to Madam Justice Louise Arbour. The House of Commons concurred. About this Senate amendment and obedience to same, Supreme Court Chief Justice Lamer, days later, in a CPAC interview on December 9, 1996, said:

. . . I was a little disappointed . . . when the Senate amended this Arbour amendment, because in there . . . it was made general for the purpose of enabling judges . . . to go into countries . . . And that amendment would have made it more easy to meet the expenses because judges, as you know, were supposed to receive money only under the Judges Act, and it's a little dicey there, and that when the amendment was made . . . I was a little disappointed but I found another way and I'll be going to have lunch today with Madame Huguette Labelle, the head of CIDA then I think we're going to go through CIDA. Well, where there's a will, there's a way . . . I'm speaking to Madame Labelle. As I said, I'm having lunch with her today, then I will be speaking to the Commissioner of Judicial Affairs Friday. I'll have lunch with him Friday and I think we'll get the ball rolling very soon.

I repeat, he said, "Where there's a will, there's a way."

Again, in the August 29, 1997 article, "Canada's new global role: `Juges sans frontieres'", when Lawyers Weekly asked Chief Justice Lamer about the senators' objections to Canadian judges' off-the-bench foreign activities, Chief Justice Lamer responded:

I don't think that criticism was valid, and I don't think that most members of the Senate agreed with that criticism . . .

I strongly condemn this public political activity by Chief Justice Lamer of the Supreme Court of Canada.

Honourable senators, because certain judges, by judicial activism and other techniques, have privateered in Parliament's sea lanes, that piracy has corroded public confidence and undermined judicial independence. We must correct that. Judges deserve the support and respect of the public. We must uphold judicial independence and we must protect our judges.

Motion in Amendment

 Hon. Anne C. Cools: Therefore, honourable senators, I move, seconded by the Honourable Senator Robertson:

That the Bill be not now read the third time, but that it be amended in clause 6, on page 4, by adding the following after line 14:

(8) Nothing in this Act abrogates or derogates from any of the privileges, immunities and powers referred to in section 4 of the Parliament of Canada Act, or section 18 of the Constitution Act, 1867 or from the authority of the Parliament of Canada to fix the salaries, allowances and pensions of judges under section 100 of the Constitution Act, 1867.

I would be happy to distribute copies of this proposed amendment to the leadership on both sides.

Honourable senators, the amendment is straightforward. It is clean and tidy.

 The Hon. the Speaker: Honourable senators, it is moved by the Honourable Senator Cools, seconded by the Honourable Senator Robertson:

That the bill be not now read the third time, but that it be amended in clause 6, on page 4, by adding the following after line 14:

(8) Nothing in this Act abrogates or derogates from any of the privileges, immunities and powers referred to in section 4 of the Parliament of Canada Act, or section 18 of the Constitution Act, 1867 or from the authority of the Parliament of Canada to fix the salaries, allowances and pensions of judges under section 100 of the Constitution Act, 1867.

 

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