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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 third reading.

Hon. Anne C. Cools: Honourable senators, I rise to speak to third reading of Bill C-12. On May 9 last, I laid out the history of judges' remuneration in Canada and its statutory charges against the Consolidated Revenue Fund. I expressed doubts about the process of the Judicial Compensation and Benefits Commission and the setting of judges' salaries. Then, as now, I take no issue with the quantum of salaries or the fact of salary raises. I believe that judges should be adequately remunerated. I repeat: My concern is with the process.

I expressed my misgivings about this bill's exclusion of Parliament and the public representative interest in the setting of judicial salaries. I raised the fact of the roles of certain justices in setting the priorities for public and parliamentary expenditures and their trenching on Parliament's control of the purse, as well as the financial initiatives of the Crown.

Honourable senators, Minister of Justice Anne McLellan appeared before the Standing Senate Committee on Legal and Constitutional Affairs in respect of Bill C-12 on May 10. Minister McLellan's testimony revealed that she is not that well acquainted with the Judges Act, its history, its application and its scope. Further, she seemed not to comprehend the proper constitutional relationship between the judges and Parliament. Minister McLellan seemed to have an insufficient grasp of the history of the Liberal Party's historical and constitutional position on the same, both in Canada and in the United Kingdom.

Senator Andreychuk asked the minister about the international judicial projects, the ministerial and judicial supervision of same and about the funding from the Canadian International Development Agency, CIDA, for these projects. The minister responded, saying:

As I know from my own experience visiting countries around the world, we could be in dozens of countries helping to educate judges and to build the culture of respect for the rule of law and the independence of the judiciary.

The minister said much about Canadian judges bringing the rule of law to underdeveloped countries. I asked the minister about the statutory authority for the international endeavours of these judges, saying:

It was always my understanding that the phenomenon of bringing the rule of law to nations who do not have it, or who lack it, was a political question. When I was growing up, we called it "colonialism." The British called it the "pax Britannica." That is a political role, taking the rule of law to other nations, particularly developing nations. It is a political role, not a judicial one.

Could the minister tell us what authority in the Judges Act can be relied upon for the current involvement of judges across the world?

The minister responded, saying:

However, judges have a larger obligation to help, where called upon, to assist those who are trying desperately to create functioning and stable democracies.

She confirmed my assertion that the Judges Act provides for no such obligation in principle or in law. About the so-called authorizing sections of the Judges Act for these judicial international actions, the minister said:

Sections 56 and 57 are not explicit, but do signal the fact that judges may be called upon to do those things over and above their duties sitting in judgment on whatever court they are appointed to.

Honourable senators, the minister stated that her reliance was on two sections of the Judges Act, which she immediately said were not explicit. This is staggering. Honourable senators, they are not only inexplicit, but they are in point of fact contrary. There is absolutely no authority in sections 56 and 57 of the Judges Act for the international activities of Canadian judges. Further, the Judges Act has no international application and is of domestic application only.

The minister then engaged on the Justice Louise Arbour amendment to the Judges Act in the 1996 Bill C-42, from which Madam Justice Arbour became the Chief Prosecutor for the United Nations International Tribunal on Rwanda and Yugoslavia. The minister's misunderstanding of Bill C-42 and her ambiguous insistence on non-existent statutory authority in the Judges Act for the international activities of judges were curious. The fact is that in 1996, Bill C-42 came to the Senate seeking a very wide and general authority for all judges to be able to go abroad to work for international organizations. The Senate said no, and limited the authority solely to Madame Justice Louise Arbour, who, in the most extraordinary procedure, was identified personally in Bill C-42. Before its passage, Madam Justice Arbour had already departed Canada to become the Chief Prosecutor. Her judicial absence was authorized by three Orders in Council, the legality of which is still unclear. The Senate understood that the international activities of judges as proposed in that bill were inherently political in nature, and the Senate, concurred with by the House of Commons, said no, and legislated that the single exception to the general prohibition would be Madam Justice Louise Arbour.

Honourable senators, I shall cite the relevant sections of the Judges Act mentioned by the minister, sections 56 and 57. First, I shall cite section 55 whose marginal note reads, "Judicial duties exclusively." Section 55 states:

No judge shall, either directly or indirectly, for himself or others, engage in any occupation or business other than his judicial duties, but every judge shall devote himself exclusively to those judicial duties.

Section 56 is telling because it places any and all extra judicial duties squarely into the legislative authority of Parliament and does so in express language. These international activities of the judges, their building of democracy in developing and Third World countries, are not within the legislative authority of Parliament. Such international activities of building international governments fall within the law of the royal prerogative and the law of nations, not within the authority of Parliament. Section 56, whose marginal note reads, "Acting as commissioner," which the minister says is her authority for the international activity of judges, reads in part:

56.(1) No judge shall act as commissioner, arbitrator, adjudicator, referee, conciliator or mediator on any commission or on any inquiry or other proceeding unless

(a) in the case of any matter within the legislative authority of Parliament, the judge is by an Act of Parliament expressly authorized so to act or the judge is thereunto appointed or so authorized by the Governor in Council ...

Section 57, the minister's other authority, reads in part:

57.(1) Except as provided in subsection (3), no judge shall accept any salary, fee, remuneration or other emolument or any expenses or allowances for acting in any capacity described in subsection 56(1) or as administrator or deputy of the Governor General or for performing any duty or service, whether judicial or executive, that the judge may be required to perform for or on behalf of the Government of Canada or the government of a province.

Honourable senators, very clearly there is absolutely no authority in the Judges Act, sections 56 or 57, for any judge of Canada to assist Third World countries to build democracy because the Judges Act understands that the development of democracy outside of Canada is a political function, not a judicial one. The Judges Act has no international application or scope.

Honourable senators, the statutory authority for those judges' international good nation building is a recurring question commanding our study. I should like to quote the then Chief Justice of the Supreme Court of Canada in a broadcast on CPAC, December 9, 1996, just days after the adoption of Bill C-42 as amended by the Senate. In that program, A Public Life with Antonio Lamer, Chief Justice Lamer, commenting on the Senate's amendment to the Arbour proposal, said:

I was a little disappointed when the Senate amended this Arbour amendment...

The then Chief Justice told the viewers why, saying:

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 that amendment was made to bring back down to just Madame Justice Arbour, I was a little disappointed, but I found another way, and I'm going to be having 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.

Insistent, the then Chief Justice Lamer continued:

I will be very proud to see 20, 30, 40 judges of Canada at no Canadian judge's expense ... go around the world ...

...these judges that are available, ready to go, these judges, will be going. 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.

That was only days after the Senate had said no to his proposals.

Honourable senators, eight months later, then Chief Justice Lamer was interviewed by Cristin Schmitz, again on this question. This was reported in an August 29, 1997 Lawyers Weekly article headlined, "Canada's new global role: ...Juges sans frontières.'" Cristin Schmitz wrote about the international projects of the then Chief Justice Lamer and of Commissioner for Federal Judicial Affairs, Guy Goulard. She wrote:

Mr. Goulard coordinates a growing number of highly successful international judicial cooperation projects, many of which are financially supported by the Canadian International Development Agency (CIDA).

She wrote about the then Chief Justice Lamer's role:

`Juges sans frontières' or `Judges Without Borders' is how Chief Justice Antonio Lamer smilingly refers to his brainchild.

She went on to say that Chief Justice Lamer:

... is one of the main forces behind the country's role in the international justice arena ...

Informed of the Senate debate and the Senate's limitation of his proposals, she asked him:

During debates in the last Parliament, some Senators argued that permitting off-the-Bench foreign activities by Canadian judges will undermine the public's confidence in the judges' impartiality.

She quoted his response about the Senate, saying:

I don't think that criticism was valid, and I don't think that most members of the Senate agreed with that criticism," Chief Justice Lamer remarked.

Honourable senators, as a senator involved with that bill, I wrote a letter to the editor in answer to the Chief Justice's remarks. The Lawyers Weekly published my letter in toto on September 12, 1997. I wrote:

After considerable reflection, and respectful of the convention that Canadian judges not engage Parliament in public debate, or in public policy, or question Parliamentary proceedings, I feel compelled as a Senator to respond to the Honourable chief justice's remarks.

Challenging the then Chief Justice, my letter continued:

I have the gravest concerns about the chief justice's statements regarding the validity of the Senate's opinions and actions to prohibit non-judicial, off-the-Bench international activities by Canadian judges, and the Senate's corollary assertion of the public interest in judges' impartiality, integrity, and judicial exclusivity.

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

Chief Justice Lamer's statements were misleading. The facts are to the contrary.

The Senate's vote on Bill C-42 was unanimous. The unanimous vote at Third Reading, on Nov. 7, 1996, upheld a general ban on Canadian judges' international activities and remuneration for same and affirmed the Judges Act, ss. 54 to 57. That unanimous vote is recorded in Senate Debates at p. 1138.

Simultaneously, in that same vote, the Senate legislated, albeit reluctantly, a sole exemption to that general prohibition.

That sole exemption was Madam Justice Louise Arbour, and the Senate motion of Nov. 7, 1996 cited her specifically by name in s. 56.1(1) as the sole and singular exemption to this statute.

Contrary to Chief Justice Lamer's statements, the Senate definitively and unambiguously declared its will, intent, and validity.

My published letter continued:

On yet another occasion, during the Senate debate itself, in a letter to the Minister of Justice Allan Rock dated Nov. 6, 1996, Chief Justice Lamer wrote:

May I add with respect to the proposals in Bill C-42 contained in s. 56.1(1) that it is extremely unfortunate that the Senators objecting to this general amendment have completely misunderstood its purpose.

Senators were informed of the financial, remunerative and procurement questions involved in Canadian judges' non-judicial, off-the-Bench international activities.

The Senate was aware of the Chief Justice Lamer's, and other honourable justices', wishes and interests regarding Canadian judges' international sojourns. The Senate rejected them.

The Parliament of Canada defeated them, and legislated otherwise and contrarily.

I concluded my letter, saying:

It is deeply troubling that the chief justice has ignored the clearly expressed will of Parliament, and has gone behind Parliament and Parliament's statutes.

I trust that the chief justice will apologize to the Senate for his comments on the political position and the politics of Canada's Senators.

Honourable senators, I move back to Bill C-12. On May 17, 2001, at the Legal and Constitutional Affairs Committee, I opposed and voted against clause 18 of Bill C-12 because I saw it as novel and a blank cheque. The Judicial Compensation and Benefits Commission had expanded the financial role of the Judges Act by adding section 26 in 1998. Now Bill C-12 is creating a novel charging mechanism, being section 26.3. Bill C-12's new section 26.3 of the Judges Act will create a new and additional mechanism under the Judges Act to make statutory charges against the Consolidated Revenue Fund. This is unusual and, to my mind, unacceptable. This section will also allow the commission to determine payments and charges on the Consolidated Revenue Fund. Once again, Parliament has been excluded, and the rights of Canadians' representative control over the public purse has been circumvented.

Honourable senators, I conclude on a most recent judicial development. I speak of the judiciary's daily involvement as publicists and propagandists. This new-found publicist and public propagandist role for judges in Canada today is unparalleled in our constitutional history. It is commanding Parliament's attention. Every day, on television and in the newspapers, we see judges in full media flight.

The proper role of judges in relation to propaganda needs some clarification. The proper role of judges in respect of media, propaganda and publicist roles was best articulated by then British Lord Chancellor, Lord Kilmuir, and was known as the Kilmuir Rules. In 1955, Lord Kilmuir wrote a letter to Sir Ian Jacob, the BBC's Director-General, regarding judges, media, and broadcasting, which became known as the Kilmuir Rules and were published in the Public Law 1986. Lord Chancellor Kilmuir wrote:

... the overriding consideration ... is the importance of keeping the Judiciary in this country insulated from the controversies of the day. So long as a Judge keeps silent his reputation for wisdom and impartiality remains unassailable: but every utterance which he makes in public, except in the course of the actual performance of his judicial duties, must necessarily bring him within the focus of criticism. It would, moreover, be inappropriate for the Judiciary to be associated with any series of talks or anything which could be fairly interpreted as entertainment: and in no circumstances, of course, should a Judge take a fee in connection with a broadcast.

My colleagues and I, therefore, are agreed that as a general rule it is undesirable for members of the Judiciary to broadcast on the wireless or to appear on television.

These are the Kilmuir Rules as articulated by the Lord Chancellor.

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

Senator Cools: I have only one paragraph left.

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

Hon. Senators: Agreed.

Senator Cools: Honourable senators, it used to be held that the unassailability of judges, founded in moral character in the rules against public and political engagement, both buttressed by the political convention called judicial independence, were the cornerstone of a secure and protected judiciary, guarded and protected by Parliament. This view is in sharp contrast to the current bandying about of the frequently misused and misapplied term "judicial independence." Such misapplication of the term is, at worst, self-serving and, at best, cant. "Cant" is a word that seems to have fallen into disuse in recent years. Nevertheless, it is, at best, cant. The British Constitution gave us in Canada constitutional comity, parliamentary sovereignty, and the political convention of judicial independence. We should honour and uphold our constitutional heritage and in so doing, honourable senators, we will uphold and honour the judges.

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