Senator Plett: This is really just a simple question, Senator Cotter. I do have a problem with a minister not appearing. We do have a bit of a policy, “no minister, no bill.” Now, I understand we can’t get them all the time. But especially in the case of the Standing Senate Committee on Legal and Constitutional Affairs, what would you suggest, Senator Cotter, when the committee has other questions for a minister, and the minister refuses to appear? What’s your suggestion as to how we deal with that situation?

Senator Cotter: Thank you, Senator Plett. Ever so briefly, I’m relatively junior to the role of chairing committees and don’t have the wealth of experience that you do of ministers attending or not attending committees. At a certain point, I’m sure it becomes excessive to ask a minister to show up repeatedly with respect to the same bill. These are important questions. They were well explored with the minister in the first go-round. We probably sharpened our focus as we edged toward amendments, but it is not as though we did not hear from the minister on the points that were in contention.

Senator Plett: Thank you, Senator Cotter, for the report. We have all been waiting anxiously, and here we have it.

Senator Cotter, I note that the committee decided not to pass an amendment to the bill regarding the inclusion of suspension without pay to the list of possible disciplinary measures, even though it was recommended by witnesses. Bill C-9 does include less serious options — for example, a reprimand requiring an apology — and then it seemingly jumps over to the very serious penalty of removal from the bench, with nothing in between. Given that suspension without pay seems to work well in Ontario — according to the Ontario Judicial Council — and it was called for by other witnesses, why would the committee ultimately decide not to include this in the bill?

Senator Cotter: As a person’s tombstone read, “I expected this.” Senator Plett, I expected this question, so thank you. Although I am tempted to say that Senator Dalphond could provide a more comprehensive answer, let me share with you — on behalf of the committee — the deliberations and what I think were, perhaps, the determining factors that led to people voting against adopting the amendment. It was an amendment that was carefully investigated and considered in advance by Senator Batters and the committee.

It is true that a number of provinces have that included in their judicial misconduct proceedings in relation to provincial court judges; you are correct about that. Some of the most articulate witnesses suggested it. In fact, probably the leading academic authority on this topic is Professor Richard Devlin from the Schulich School of Law at Dalhousie University, and it is one of the recommendations that he made.

Two arguments were advanced to express concern about that particular amendment. One of them was a practical one: If the sanction is suspension of a judge with pay that tends to mean a free vacation for that judge. It is embarrassing to the judge, but it burdens the other judges who have to carry that judge’s workload. It didn’t feel very much like an actual sanction.

The second argument is somewhat more subtle — which justice officials shared with us and which, I think it’s fair to say, Senator Dalphond advanced forcefully: The structure of treating judges’ pay is required to be governed by a compensation process every four years. It is unconstitutional in this line of argument for the salary of that judge to be reduced. If you suspend a judge, even as a sanction, and reduce their pay, there is a fairly strong argument — I don’t want to say that it’s determinative — that it would be an unconstitutional interference with judicial independence.

I think there is no question — and Senator Batters articulated this well — that there is a gap in the series of sanctions, but this one presented different problems in relation to the judiciary as opposed to so many other lines of work, whether it’s lawyers, police officers or any others with respect to which you and I are familiar.

That’s the best I can do in terms of describing the thinking of the committee in a close decision not to adopt that amendment.