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Mr. Chairperson (Gerry McAlpine): Order, please. Will the Committee of Supply please come to order. This morning this section of the Committee of Supply sitting in Room 254 will resume consideration of the Estimates of the Department of Justice. When the committee last sat, the honourable Minister of Justice was in the process of giving his opening remarks, and I would remind the honourable minister that there are six minutes remaining in the opening statement.
Hon. Vic Toews (Minister of Justice and Attorney General): I wanted to add to my comments of last date some comments on The Correctional Services Act. I know I just read part of this speech in the House, but I do think it is very important to note a few of these principles.
The Correctional Services Act is a new act, first major revision of the act in over 30 years, and it specifically identifies at least two principles. One of these principles establishes the protection of society and the accountability and responsibility of offenders as the primary factors in all decisions flowing from the act. The other principle establishes the importance of victims and the consideration of their interests in this same correctional process and decisions flowing from the act. It is certainly my belief that the long-term safety of the community will be enhanced by encouraging and supporting offender rehabilitation, and so the act recognizes the importance of offender risk assessments and offender management plans. It mandates the establishment of work, education and training programs which, among other things, will assist offenders to acquire, maintain or develop skills that will help them become useful, productive and law-abiding citizens.
The act also acknowledges the importance of public participation through the creation of citizen advisory committees and voluntary work. But, as indicated, the primary thrust of the act is public safety. This legislation affirms our government's commitment to public safety. It provides a new opportunity to keep dangerous offenders in custody to the very end of their sentence. Currently, the federal legislation requires the release of an offender after two-thirds of his sentence if the offender has fulfilled all good behaviour expectations, regardless of his risk level.
While I generally support a recognition of this principle, it is our government's belief that it is not appropriate where there is reason to believe that an offender is likely to commit a serious offence or a sex offence involving a child. So the provision in this act will allow us to deal with the limitations of the federal legislation and keep dangerous offenders in custody as long as possible. So, in this particular act, my staff have reviewed the relevant legislation from other jurisdictions, taken into account recommendations from a number of federal and provincial reports affecting Corrections, and this act, we believe, will enable the Corrections division of the department to manage its work today, tomorrow and into the future.
So, then, Mr. Chair, with those very brief concluding remarks, I want to thank my staff for all the hard work that they have been doing over the last year, and I am prepared to listen to any questions or comments that members may have at this committee.
Mr. Chairperson: I thank the honourable minister for those comments. Does the critic for the official opposition, the honourable member for St. Johns (Mr. Mackintosh), have an opening statement?
Mr. Gord Mackintosh (St. Johns): Mr. Chair, I thank the minister for his overview of some of the initiatives the department is looking at and has been engaged in over the last number of months, and we will be looking at many of those initiatives as we go through the Estimates.
I want to raise today what of course is on the minds of all members and many members of the public, and that is a series of issues that surround the appointment of judges in Manitoba. We have I think four issues that have come before Manitobans in the last couple of weeks as a result of actions taken by this Minister of Justice.
The first issue is that it appears from the information brought to our attention, particularly by Ms. Colleen Suche and Mr. Guy Joubert of the nominating committee, that the minister was engaged in a rigging of the appointment process for two vacancies on the Provincial Court. The minister took a list that was presented to him by the Chief Judge, we understand, last Monday or presented to him perhaps the following week but about which they met last Monday, and as a result of discussions between the minister and the Chief Judge, the list went back to the nominating committee. That much is absolutely certain. There is no question about that in anyone's mind, and the minister would agree to that. But, Mr. Chair, that list could not go back under the intent or the wording of The Provincial Court Act.
Mr. Toews: Well, I do not want the member to be saying things that I agree with or do not agree with. I will state them in my own words. The member is attempting to put words in my mouth, and I just want the record to be very clear that the member is attempting to frame an argument using words that he thinks I may have used or did use.
Mr. Chairperson: The honourable minister does not have a point of order. It is a dispute over the facts.
Mr. Chairperson: The honourable member for St. Johns, to continue with your statement.
Mr. Mackintosh: So once the list had gone back to the nominating committee, there is no doubt that the intent and the wording of the statute, The Provincial Court Act, was not followed.
Now the issue of the rigging is also accompanied by allegations that the minister, as well, held over the Chief Judge a threat that he would remove from the nominating committees in the future the Chief Judge and the judge appointee. This apparently coincided in time. We understand that this issue was raised either at the Monday meeting or shortly before or after that. We understand from allegations that the minister knew that one particular candidate, the only bilingual candidate who was interviewed, was available for appointment, and the allegations are that the minister was attempting to ensure that that particular candidate received an appointment. That is the first issue.
The second issue is that by doing the rigging of the appointment process, the minister broke The Provincial Court Act, Section 3.1, as I recall it is. Now that section was brought in, in 1990, unanimously by the Legislature of Manitoba, and it was an attempt to modernize the appointment process for provincial judges. It was a great step forward over what had been the practice earlier in Manitoba. It is interesting to hear the minister on radio saying how terrible the NDP was with their appointment process, but I ask the minister: what is worse? To act legally as the NDP did or act illegally as this government did in the appointment process.
So we support the new process. In fact, we do not think the new process is as good as it could be. I know the minister has made remarks on that one. You may have heard me making remarks on open-line radio in the last couple of weeks on that, as well, but the minister took a one-way street and turned it into a two-way street in pursuit of a particular candidate and, therefore, the act is offended.
This is not criminal in nature. The Provincial Court Act and this particular provision is not a criminal statute, but it is a constitutional statute. It is constitutional in nature. It sets out how one of the fundamental tenets of a democracy, that is, the judiciary, the judicial branch, is to be formed and comprised. It sets out the procedures and limitations on government as to how the judicial branch is to be constituted. There must be a remedy for that. The government has broken a constitutional provision and it must now take action to distance itself, to say that it was wrong, that it will not happen again, so the public will have confidence in the system of appointing judges and in the rule of law.
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The third issue that arose during this whole matter has been the credibility of the minister. Last Thursday, when this issue arose in the Legislature as a result of the allegations of Guy Joubert in particular, the minister got up and said that the statements by Mr. Joubert were wrong essentially and that in fact it was the Chief Judge who raised the issue of bilingual judges in the context of a meeting scheduled to deal with the nominating committee's report. He said that over and over again in the House, and then he said, and I am quoting: "I do want to say that I have accurately conveyed the substance of the discussions between the chief judge and I on this issue." So he confirmed for the Legislature, not only by saying it repeatedly, but by saying he was accurate misled the House, and as our motion before the House says, deliberately misleading. That will be the subject of the matter of privilege under advisement.
But he cannot say what took place repeatedly and then say that indeed it was accurate and then come back at the next sitting and change his version. Because on Monday the minister came in and said, well, I raised the issue. It is interesting that the ministerial statement issued by this minister yesterday made reference only to the statements he made on Monday, on May 11, and purports to say that the Chief Judge shares the minister's recollection as set out on May 11. What this ministerial statement says is that the minister then misled the Legislature on Thursday. That is the least that is in this ministerial statement.
When there are these serious issues of credibility facing a Minister of Justice, it is not like another minister of government. Manitobans must have confidence in the justice system, and there is no more important player than the Justice minister. Justice begins with honesty in the minister's office.
The fourth issue stems from what occurred yesterday in the Legislature when the minister presented a ministerial statement purporting to speak on behalf of the Chief Judge of Manitoba. The background of this statement is that the minister, facing a crisis of confidence, facing serious questions about not just the minister but the government and its integrity, retained the services of counsel to contact the Chief Judge.
And what was the intent, Mr. Chair? The intent was to make sure that the Chief Judge did not go ahead with her plans to issue a statement on her own on Monday. His intent was to skew the truth, if not subvert it. His intent was to negotiate what he would call the truth. Interestingly, in the House yesterday, he said that if I directly contacted the Chief Judge, of course I would be accused of interfering, so that is why I retained counsel. I find that an incredible statement from someone who has been counsel. It does not matter if the minister acted directly or indirectly through an agent. He interfered. He has now put in doubt the words of the Chief Judge, because the Chief Judge's advice to Mr. Joubert and Ms. Suche on the day following or even the day of the meeting with the minister last Monday was certainly different from what is set out in the ministerial statement now. Serious questions now over both the Chief Judge and the minister--the matter has to be reconciled. It has to be reconciled so that there can be some restoration of confidence in the administration of justice.
I therefore move that this committee recommends that the Justice minister now resign.
Motion presented.
Mr. Chairperson: I find the motion to be in order. Debate may proceed.
Hon. Jack Reimer (Minister of Housing): These are interesting times that we come about as we sit around these tables in discussions of Estimates, how Estimates have moved to other areas of topics and other areas of concern in the sense of trying to bring forth certain types of agendas or certain types of directions as to what we or other members feel is appropriate for discussion at times.
I have from time to time had the opportunity to work very closely with some sectors of the justice community because of my involvement with Housing in the sense that we have always felt that some of our housing projects do need the ability to have a police presence. So we have worked very, very closely in trying to have some sort of a presence on our properties of constables.
In fact, it was earlier this morning that I had the opportunity, I was invited out coincidentally to one of my housing properties, one of my housing complexes where we have police constables in an actual physical location in our housing complex. We had some very interesting discussions there on their abilities to make decisions and their abilities to be part of the community, their abilities to take part in the formation of community groups and areas that they feel that they would like to have an influence in. There was a refreshingly interesting conversation with these constables who are the so-called front line people in the field and their exposure to the community. They all mention that it is these types of activities and these types of situations where constables become hands on with the community that they can have the ability to make changes and to make decisions that are of benefit to the community. I applaud them.
I believe that the direction that they are taking, and a lot of times with the direction that the Chief of Police here in Winnipeg has indicated that they are willing to pursue in a sense of having more community police, to have police on the street, to have police physically walking the beat, to have police now on bicycles throughout the neighbourhoods, these are all areas that we feel that the Justice system has to have and the police have to have a visibility in the community to make the community safer.
We have experienced some significant changes in our housing complexes and in our housing portfolio because of this direction that we have taken in co-operation with the localized police forces. An area that has changed tremendously in the last little while in regard to this have been an area, like the member for Inkster (Mr. Lamoureux) is fully aware of, is Gilbert Park and how we have worked very, very closely with that community in bringing a sense of pride back in there. Part of it is the fact that the police presence is there, the police have been able to bring a sense of community into that area. There is a recognition. It was quite noticeable in going through that community a little while ago that almost everybody knew the constable in that area. They knew him by his first name, and they were all willing to come out and say hello to him and greet him. It is this type thing that I think in the justice system that we are seeing some very positive initiatives.
We have instituted a lot of other programs under our Urban Safety program. We have the Downtown Watch patrol that we have funded through the Urban Safety initiative under the Winnipeg Development Agreement, and programs like that have proven to be very, very successful. These are the individuals that I am sure maybe the members have seen in and around downtown Winnipeg in their red coats. These individuals have helped also in the sense of bringing a stability to the area. These people are trained. They are tied in physically in a sense with the police department because I believe they share some of their offices. They are tied in in another way too because they have communications devices with them that tie right in with the police force so that there is a contact made that way.
These are initiatives that I think that we as a government and through initiatives in co-operation with the Minister of Justice we have seen some very positive results. The Urban Sports Camps that we initiated in co-operation with the Justice department is another area where we feel that there is some positive growth. The involvement of young people in sporting activities to be part of a community is something that is showing some very significant results in Turtle Island which is part of the housing complex, again, of Lord Selkirk Park. We are running a sports camp out of there.
We are looking at expanding those sports camps into other areas of the city where there is a need, and they have proven to be very successful. Other areas that have benefited under the Urban Safety Program have been counter check, an area of identifying, through merchants, ways to recognize crime, ways to recognize areas where there is potential for crime and putting on seminars and working with the City of Winnipeg police; these are initiatives that have also helped through the Winnipeg Development Agreement.
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There are many other areas that we could talk on about the ability to work co-operatively with the Justice department in their efforts and I think it is along these lines that we have to concentrate. We should be concentrating on the positives of what is coming through with the initiatives by the Justice department and the Justice minister. We will work upon these positives, work upon the ideas that we can utilize. You know, we are standing up for family violence and stalking with some new legislation and through some of the other initiatives we have worked very, very closely through my Housing department and through Justice in trying to come to some sort of resolve on areas.
These are things that I think we can always develop even more because it is in developing these types of relationships with community, it is in these areas of looking for the positives within the community and looking at the assets of the community that we can build upon, because there is nothing better than having a sense of community taking responsibility for change that they want to initiate and having them work this way. If there is a way that the government can work as a possible catalyst or a leg up, if you want to call it, and maybe some sort of legislative changes or funding capabilities, these are the things that will make differences in our community, and these are the things that this government has put as a priority, not only working with the community but looking at solutions that are community based in a sense of accomplishment.
So, when we look at some of the directions the opposition is trying to take in pursuing a lot of the efforts that have been brought forth by this government, we have got to question some of the motives--of the directions that are taken. I can only dwell upon a lot of the positives that we have initiated and the fact that there is a growing acceptance of the difference in the way we are trying to take the government. I think it is this type of attitude that can help not only the people of Manitoba but the people of Winnipeg in recognizing that there is a change out there, and we have to be part of it. A lot of these things are areas that will cause possibly some minor consternation, but I think in the long run the objective is to have is a safe and liveable community that we all want to live and work and raise a family in, and these are some of the initiatives that I think that Justice has recognized and is moving towards in the various areas, whether it is through protection or through highway traffic, through other areas.
The motion that is brought forth in regard to asking the minister to resign I guess is something that the member for St. Johns (Mr. Mackintosh) has thought long and hard at, in trying to some sort of resolve on it, I guess, instead of trying to work through the problems and work through some of the differences that possibly he perceives as differences of opinion between what has transpired and what is perceived to have transpired is sometimes hard for individuals to recognize. Sometimes frustration comes forth in saying, well, the best thing to do is resign and everything will be better.
A lot of times it is better to try to look at the rationale behind and look at the reason and the reasoning behind some of these decisions and some of these directions and look at what is the end result. So I think that a motion of this sort deserves further consideration and debate in the sense that I know that some of my colleagues are wanting to also talk on this subject, but it is something that I think that we should dismiss as a knee-jerk reaction in a sense of always throwing up the disagreement as being something that someone should resign over. So I would say that it is something that the member is right. It is a serious situation in a sense that deserves the considerations and the debate of some of the members here, and I look forward to some of my other colleagues that are wanting to put some words on the record. With those short words, I will pass it back to you, Mr. Chairperson.
Mr. Toews: I appreciate some of the comments that the Minister of Urban Affairs has. I do want to talk in some detail about the issues that have been raised here this morning. The issue of the independence--
Mr. Steve Ashton (Opposition House Leader): Yes, Mr. Chairperson, we have a motion on the floor. It does involve questions back and forth. The normal process is to rotate. I have no problem if the minister wishes to speak at this point in time, but I would ask that we follow the normal practice which is to rotate between the different caucuses, give the opposition the opportunity to speak and then the government.
As I said, I have no problem deferring to the minister. I look forward to his explanation of the events here, but I just would ask that we follow that as a general rule. Since the minister has been recognized, I just request that I be able to speak after.
Mr. Chairperson: The honourable minister, on the same point of order.
Mr. Toews: On the same point of order, I have no problem with the member speaking after I do, but from my experiences in participating in these committees, usually what happens is we have been rotating back and forth, and there will be, let us say, somebody from the government side, then the minister will respond, someone from the opposition side, and then the minister will respond. So my understanding was that--but I do not want to--perhaps there are others who could contribute on this point of order.
Mr. Chairperson: The honourable member for Gimli, on the same point of order.
Mr. Edward Helwer (Gimli): On the same point of order, Mr. Chairman, I believe the minister has the right to express his opinion, the same as everyone else has. Even though he is in the chair, he should be able to speak at his own.
Mr. Chairperson: The honourable member for Inkster, on the same point of order.
Mr. Kevin Lamoureux (Inkster): On the same point of order, Mr. Chairperson, in hopes that I might be able to alleviate some concerns that you might have as the Chairperson, from what I have seen over the past, when a motion of this nature is brought forward, quite often if there is a--you know, if it is a filibuster of sorts from the government's perspective, what quite often will happen is the Chair will--because there is very little will to provide input, more of an interest to see the vote occur, what will happen is you will see member of the government after member of the government speak.
When you have opposition members who want to be able to contribute to the debate, then you will see it is more of a rotation basis. So what I see is that I know that the member for Thompson (Mr. Ashton) was wanting to speak; I know I was wanting to speak. Obviously, the rules state that it is whoever the Chair recognizes, and under a normal situation you would have a question followed by an answer.
I do not think this is a normal situation. I think it is a very serious motion which should be debated, and I detect that both opposition and government want to be able to debate it. So I think, in fairness to all sides of the House, that there is some sort of a balanced approach at recognition.
Mr. Chairperson: The honourable member for Emerson, on the same point of order.
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Mr. Jack Penner (Emerson): On the same point of order, Mr. Chairman, I concur with what the honourable member has just said, and that is that I think we need to recognize that we are in a committee of Estimates. During Estimates debates, historically, during the tenure that I have been in this building and chaired many of them, I think it has always been recognized that the minister has had a right to respond during Estimates.
I think we should give that right to a minister to respond to any of the points made during the debate in Estimates, regardless of whether there has been a motion put before the committee or not. I would suspect, if we truly wanted to analyze the motion, that we need a significant amount of reference from the minister to actually point out the inefficiency of the points made in the motion.
I think, therefore, it is absolutely imperative that we allow the minister to make comment on the various aspects of the motion, and therefore I would suggest to you, Mr. Chairman, that you rule in favour of allowing the minister to make a statement at leisure, when he, in fact, indicates that there needs to be either a correction or a comment made on various points.
Mr. Chairperson: The honourable member for The Maples, on the same point of order.
Mr. Gary Kowalski (The Maples): Yes, on this point of order, when the Chair rules on it, if the Chair is challenged, what happens? If your ruling is challenged, what happens?
Mr. Chairperson: Order, please. I think that this is something that the Chair will take a decision on and make a move on this with regard to this matter. The Chair is going to be governed by the will of the committee.
The honourable member for Thompson, on the point of order.
Mr. Ashton: Mr. Chairperson, quite frankly, I wish I had not been as flexible in terms of deferring to the minister because the statements that were put on the record later in the point of order are absolutely false. The minister and others are confusing discussion on Estimates with no motion on the floor in which case the normal process is questions and the minister responds, and debate on a motion.
We have a motion on the floor. The motion calls for the resignation of the minister. The appropriate thing is to have debate on the motion, and the tradition of the committee has always been to rotate back and forth, and if members who were in the committee before will recall--[interjection] Well, I look to the member for Emerson (Mr. Penner). We have a motion on the floor. We have had a number of motions in the Health section of the Estimates, and that was exactly what happened there. The government House leader (Mr. McCrae), in fact, came into the committee and very much suggested that be the case.
We, most definitely, do not and will never accept a new situation whereby you allow members to speak and then the minister to respond each and every time that a member speaks. I mean, that is the case when you have questions on Estimates. It is not the case on motions.
All I am asking for is the same principle, by the way, that was applied when the Conservative Party was in opposition. I have had the luxury of being on both sides, and believe you me, if anyone had ever suggested that there be this kind of structure of the speaking list when the Conservatives were in opposition, the roof would have come off the building, believe you me, and I think in some cases, on much more minor disputes, the roof came off the committee.
We have had decades of tradition. We do it in the House, by the way. We do it in the House, if anyone doubts that this is the normal process. When we have a bill, the Speaker goes out of her way or his way--depending on who the Speaker is--to ensure input from both sides and particularly to ensure the input of members of the opposition. That is our role in this Legislature, and I say our role. It was the role of the Conservative Party in the 1980s, may be the role again very soon, and what is good for the goose is good for the gander.
Mr. Chairperson, it should not be something that is decided by the will of the committee, in this case, where you have a majority of the committee, by definition--even if you do not have any government members speaking, by the way, you have other traditions, such as the fact that the Chair assumes that the government has the majority vote in committee. So you end up with a situation--what you are essentially saying, if we put this to the committee, is that the government then is going to decide who gets to speak, what the order is, and not only that, can then unilaterally change something that has been tradition in this House, certainly the time I have been in here.
As I said, why can we not just follow what we did in the Department of Health, which is we ensured a rotation? I do not understand, by the way, the minister had been recognized, and I deferred, Mr. Chairperson, not because the minister should have been recognized at that point--I think it was in error--but I was trying to be somewhat flexible. I could be recognized at a later point in time. But, if there is any decision here that changes the way we have operated for a long time in this House, and that we now have a rotation where the minister can jump in after every speaker and speak and be recognized ahead of other members, especially opposition members, that is absolutely unacceptable to the opposition.
I ask members, just as I finish off on the point of order, to put themselves in our shoes because in a democratic situation you will be in our shoes. It is just a question of when and you all know that. Believe you me, do you want this kind of thing to be set as a precedent? I think not. I think we have operated with some flexibility up until now, and I suggest we continue that way; we rotate back and forth between the government and the opposition. As I said, notwithstanding that, I am willing to let the minister continue, but not if that is taken in any way, shape or form as agreeing to changing our procedures of this House for decades.
Mr. Chairperson: I have heard lots of comments that have been made by all honourable members. I think, rather than proceed with this, what I am going to ask the honourable minister to finish his response, and my understanding is that we will then deal with this issue. I would ask the honourable minister to finish his response, and then we will deal with this as a committee and a decision will be made.
Mr. Toews: Mr. Chair, the issue raised in the context of the motion made is a very interesting one, raising the independence of the judiciary. I think it would assist this committee in reviewing perhaps some of the principles established by the Supreme Court of Canada in a recent case of the Supreme Court of Canada, and I think it is important to go through this in some detail to ensure that all members are familiar with the principles that guided the Supreme Court of Canada.
I know a member of the public once approached me in respect of this case, and he referred to this case, I think in a facetious way, as the judges paying off the judges' case, and that is certainly something I would never seriously call this decision. But this relates essentially to the payment of judges and how judges are to be paid, and the issue that was raised was, in fact, judicial independence. Because the motion and the comments leading up to the motion made by the member for St. Johns (Mr. Mackintosh), in fact, deal very, very deeply with the concept of the independence of the judiciary, I think it would serve this committee well if we looked at the case itself.
From a background of the case, this case was, in fact, four appeals, and they raised a range of issues relating to the independence of provincial courts. The Supreme Court of Canada, however, united them in a single issue, and that issue was whether and how the guarantee of judicial independence in Section 11.(d) of the Canadian Charter of Rights and Freedoms restricts the manner by and extent to which provincial governments and legislatures can reduce the salaries of Provincial Court judges.
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In these appeals, it was the content of the collective or institutional dimension of financial security for judges of the provincial courts which were at issue. The provinces involved in this, firstly, in Prince Edward Island, the province as a part of its budget deficit reduction plan enacted the Public Sector Pay Reduction Act and reduced the salaries of provincial court judges and others paid from the public purse in the province. Following the pay reduction, numerous accused challenged the constitutionality of their proceedings in the provincial court alleging that as a result of the salary reductions, the court had lost its status as an independent and impartial tribunal under Section 11.(d) of the Charter. So one can see how that point is directly relevant to the motion here today and the comments coming up that were the basis of the motion being made.
In that P.E.I. appeal, the Lieutenant Governor in Council referred to the appeal division of the P.E.I. two constitutional questions to determine whether the provincial court judges still enjoyed a sufficient degree of financial security for the purposes of 11.(d) of the Canadian Charter of Rights and Freedom. The appeal division found the provincial courts to be independent, concluding that the Legislature has the power to reduce their salary as a part of an overall public economic measure designed to meet a legitimate government objective. However, despite this decision, accused persons continued to raise challenges and questions regarding the independence of the judiciary, and their arguments were based on 11.(d) of the Charter and, in fact, impugned the constitutionality of the provincial court.
The Lieutenant Governor in Council referred a series of questions to the appeal division concerning all three elements of the judicial independence of the provincial court. Financial security was the first, the second was security of tenure, and the third involved administrative independence. The appeal division answered most of the questions to the effect that the provincial court was independent and impartial but held that provincial court judges lacked a sufficient degree of security of tenure to meet the standards set by 11.(d) of the Charter, because Section 10 of The Provincial Court Act--now that was Section 10 of the P.E.I. Court Act, as it read at the time--made it possible for the executive to remove a judge without probable cause and without a prior inquiry. So that set the scene for one of the appeals that came to the Supreme Court of Canada.
In Alberta, another jurisdiction where this arose, three accused in separate and unrelated criminal proceedings in provincial court challenged the constitutionality of their trials. As I understand it, they each brought before the Court of Queen's Bench a motion arguing that as a result of the salary reduction of the provincial court judges pursuant to the payment to provincial judges amendment regulation--and maybe that is where my constituent got this vague notion about judges paying judges' case; maybe it was from the name of the statute, payment to provincial judges amendment regulation, and so that comment of his could be excusable in that content. But in Section 17(1) of The Provincial Court Judges Act, now, again, the similar legislation which the member raised in his comments prior to raising the motion. So, again, these are all statutes directly relied upon by the member in terms of bringing this motion.
So we need to look in some detail at these particular statutes. Again, the allegation there was the provincial court was not an independent or impartial tribunal for the purposes of Section 11.(d). The accused, interestingly in this case, also challenged the constitutionality of the attorney general's power to designate the court's sitting days and the judge's place of residence. So, again, a question put here the extent to which the executive, through legislation passed by the Legislature, could designate the courts' sitting days and judges' places of residence. The accused in that case requested various remedies including prohibition and declaratory orders. The superior court judge found that the salary reduction of the provincial court judges was unconstitutional, that is unconstitutional, because it was not a part of an overall economic measure. That was an exception that he defined very narrowly. He did not find Section 17 of The Provincial Court Act, however, to be unconstitutional.
On his own initiative, the superior court judge considered the constitutionality of the process for disciplining provincial court judges and the grounds for their removal and concluded that Section 11(1)(b), 11(1)(c) and 11(2) of The Provincial Court Judges Act violated 11.(d) because they failed to adequately protect security of tenure. The superior court judge also found that Section 13(1)(a) and 13(1)(b) of that act, which permit the attorney general to designate the judge's place of residence and the court's sitting days, that they violated Section 11.(d) of the Charter.
I do not want to prolong this unnecessarily, but I think the points are important. In the end, the superior court judge declared the provincial legislation and regulations which were the source of the 11.(d) violations to be of no force and effect, and with that he then said now the provincial court is independent. So by cutting off the controls that the legislation had placed, or the powers that the legislation had given, in order to designate sitting days and judges' places of residence, he said now the provincial court and, consequently, the judges are independent. As a result, although the Crown lost on the constitutional issue, it was successful in its efforts to commence or continue the trials of the accused.
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The Court of Appeal dismissed the Crown's appeals, holding that it did not have any jurisdiction under Section 784.(1) of the Criminal Code to hear them at the appeal. Now this gets into a bit of a technical point, but I think it is important to understand how that case could then get to the Supreme Court of Canada, because the Court of Appeal says we cannot hear the Crown's appeal on the legislative issue, the independence issue, because the Crown was successful at the trial; that is, the people who were accused. So how then could you proceed on the matter and argue that the legislation should be upheld? Clearly, what the Court of Appeal was saying, this fairly traditional way of approaching the matter is because you are successful, you do not have a ground to appeal. It is always the result that is appealed, not the reasons. So I understand why the Court of Appeal did what it did, but it left the government who had the legislation to enforce in a very difficult position. Its legislation had been struck down. The accused had been convicted, but there was no remedy in order to determine whether or not that legislation, in fact, would be seen as unconstitutional by a superior court.
They also indicated at the same time because declaratory relief--that is, a declaration of the court--is nonprohibitory--that is, it does not prohibit anyone from doing anything--it was therefore beyond the ambit of the section of the Criminal Code that the Crown sought to rely on, that is Section 784.
Now, coming more directly to home, we have had the appellate levels in P.E.I., in Alberta, and now Manitoba. In Manitoba, the same issue, again directly relevant to the grounds raised by the member for this motion, deals with an act which was passed in the Legislature, I guess, more popularly known as Bill 22. The more formal name is The Public Sector Reduced Work Week and Compensation Management Act. This was a part of a plan to reduce the province's deficit, again a struggle, I think, that this government has been very proud of, in its belief that all public sector people, including the independent judiciary, should share in the burden on the people of Manitoba. No one should be excluded. Everyone shares the burden. Everyone obtained the benefits while the NDP ran up the deficit, and now, unfortunately, everybody has to bear the burden.
So this bill then led to the reduction of the salary of the Provincial Court judges and of a large number of public sector employees. The Provincial Court judges, through their union--or I guess association is probably the more appropriate term--launched a constitutional challenge to the salary cut alleging that it infringed their judicial independence. So, again, we have the same issue raised in Manitoba regarding what is judicial independence, as protected by Section 11.(d) of the Charter.
They also argued that the salary reduction was unconstitutional because it effectively suspended the operation of a committee, which, I would say, was unique in Canada to a large extent. It was the Judicial Compensation Committee, which was a body created by The Provincial Court Act, whose task it is to issue reports on judges' salaries to the provincial Legislature.
Furthermore, the allegation of the association at that time was much as the allegation made here, that government had interfered with judicial independence by a number of things, by ordering the withdrawal of court staff and personnel on unpaid days of leave, which, in effect, shut down the Provincial Court on those days. Again, here an accusation was made that the government in this process had exerted improper pressure on the association in the course of salary discussions to desist from launching this constitutional challenge. So again there were allegations very, very similar as those being made in the motion.
That is why I think it is so very important that we go through this case in some detail to understand how the approach occurred. [interjection]
Well, the member wants to adjourn debate. I do not think we should adjourn debate because I find this topic extremely interesting and important.
An Honourable Member: I think the motion is more interesting.
Mr. Toews: Well, the motion is important, but the grounds raised--
An Honourable Member: Speak to the motion.
Mr. Toews: Oh, I am. I am speaking to the grounds raised that form the basis of the motion, because here they are claiming that the government had exerted improper pressure on the association in the course of salary discussions to desist from launching this constitutional challenge. So they say that this then allegedly infringed their judicial independence. Now the trial judge, and I believe, I could be mistaken, but I believe it was Mr. Justice John Scollin held that the salary reduction was unconstitutional because it was not part of an overall economic measure which affects all citizens. The reduction was part of a plan, he said, to reduce the provincial deficit solely through a reduction in government expenditures. He found, however, that temporary reduction in judicial salaries are permitted under Section 11.(d) of the Charter of Rights in cases of economic emergency. Since this was such a case, he read down Bill 22 so that it only provided for a temporary suspension in compensation with retroactive payment due after the bill expired. So the Court of Appeal rejected all of the constitutional challenges.
Unfortunately, I do not have a copy of the decision here to compare the decision of the trial judge with the decision of the Court of Appeal judge, but I think that as we go through this debate, and I welcome this debate, we will see, I think, how the Supreme Court of Canada then referred to the Manitoba Court of Appeal decision as well as other decisions in arriving at its conclusion of what constituted independence of the judiciary as required by Section 11.(d) and indeed then whether the allegation here in this case was in fact improper pressure on the association in the course of salary discussions to desist from launching a constitutional challenge. So very, very briefly, that outlines the issue of constitutionality.
I think I would like to, at this time, begin by talking about the actual Supreme Court of Canada decision, because that gets directly to the points raised in this motion. [interjection] Well, members opposite may not appreciate this.
Mr. Chairperson: Order, please. I am interrupting proceedings of the Committee of Supply. We will resume sitting following the conclusion of Routine Proceedings.