Press Monitoring September 30 to October 7 2013

Press Clippings for the period of September 30 to October 7, 2013
Revue de presse pour la période du 30 septembre au 7 octobre, 2013
Here are a few articles and opinion pieces that might be of interest to AJC members
Voici quelques articles et chroniques d’opinion qui pourraient intéresser les membres de
l’AJJ
DND pares front-line jobs
The 202 Workshop has 100 military and 346 civilian staff and is considered a strategic resource because of
the work it does overhauling armoured vehicles and weapons, according to a May 28 briefing note for
DND’s deputy minister Richard Fadden. Photograph by: DVD , Cpl Simon Duchesne
By David Pugliese, OTTAWA CITIZEN October 6, 2013
OTTAWA — The Department of National Defence is refusing to say how many public
service jobs it has cut so far, even as a leaked email indicates its latest round of
reductions will chop by a third the number of employees at what is considered a strategic
maintenance facility.
In November, the DND confirmed to the Citizen it had eliminated 1,107 civilian jobs so
far for a savings of $128 million. Now the department is refusing to update those
numbers or explain why such figures are shrouded in secrecy.
But an email leaked to the Citizen outlines a plan to cut 90 of the 346 front-line civilian
jobs at the DND’s 202 Workshop Depot in Montreal. Those cuts go against the
assurances from the Conservative government that only backroom administrative jobs
were being eliminated.
Temporary employees at 202 Workshop will be laid off, 34 full-time public servants will
be targeted under the workforce adjustment process and it is hoped that attrition and
retirements can account for the rest, according to the Sept. 26 email sent out by John
Turner, the assistant deputy minister for matériel. Last week the department sent out
“affected” notices to 143 staff members at 202 Workshop, union officials say. Those
receiving affected letters now have to compete for their jobs or hope that most staff cuts
could be made by attrition or retirement.
The 202 Workshop has 100 military and 346 civilian staff and is considered a strategic
resource because of the work it does overhauling armoured vehicles and weapons,
according to a May 28 briefing note for DND’s deputy minister Richard Fadden.
The briefing note, reviewed by Brig.-Gen. Alexander Patch and Rear Admiral Patrick
Finn and approved by Turner, noted that a detailed analysis was done comparing 202
Workshop’s mandate and resources against such factors as the end of the war in
Afghanistan.
But John MacLennan, national president of the Union of National Defence Employees,
said the end of the war in Afghanistan hasn’t meant a reduction in the work the
mechanics and maintainers at 202 Workshop perform. As vehicles return from the war,
work has actually increased, he added.
“I’d also like someone in management to explain how a person working on a tank engine
or overhauling an armoured vehicle has a backroom administrative job?” said
MacLennan, referring to the Conservative government’s promise that front-line jobs
wouldn’t be touched.
The union leader said he is troubled about the information contained in the briefing note
obtained by the Citizen through the Access to Information law since it shows
management knew about the job cuts as early as May 28. Yet in June they informed
union leaders that job cuts were being handled through attrition and retirements,
MacLennan said.
In his email to employees, Turner noted that the workforce adjustment was being handled
by the 202 Workshop chain of command. “Affected employees were informed yesterday
and will be provided with a package that explains the detailed process to them,” he added
in the email.
But that isn’t the whole story, explained MacLennan.
Managers at 202 Workshop cancelled their planned meeting last week with employees
and the public servants there found out their jobs were being cut after someone pinned a
Citizen article about the layoffs on the shop’s bulletin board.
“It was a total mess,” MacLennan said. “We keep hoping management will be transparent
but it seems like they’re playing by their own rules.”
DND spokeswoman Jessie Chauhan noted in an emailed statement that “as announced in
Budget 2012, our target is a net reduction of 1,621 full-time civilian employees by March
31, 2015. Naturally, we have continued to hire in a limited number of priority areas. We
are confident we will achieve our overall target by 2015, primarily through attrition.”
DND, however, did not answer why it will not release updated figures on how many jobs
have been cut at this point.
In answer to questions about why a strategic resource such as 202 Workshop was facing
job cuts, the DND responded with an email stating: “With the end of the mission in
Afghanistan, and following a review of the maintenance repair requirements, selected
maintenance functions will be discontinued and the workflow will be reduced. As a
result, the Matériel Group will proceed with a Workforce Adjustment.”
“We remain hopeful that many of the reductions can be achieved through the
identification of volunteers at 202WD,” the email added.
The jobs previously eliminated at the DND have ranged from clerks and secretaries to
food services and kitchen staff. Other cuts include radiation safety personnel, weapons
technicians, ammunition technicians, heavy truck mechanics, laboratory assistants,
drivers and defence science researchers.
In another email leaked to the Citizen, air force commander Lt.-Gen. Yvan Blondin
explained that his staff had made every effort to find savings through the use of attrition
and other means to trim jobs. But nine civilian positions within the air staff would be cut
by March 31, 2014, he added.
------------------------------------------------------
MPs grill Supreme Court of Canada
appointment Nadon at special committee
The Hill times photograph by Steve Gerecke
Marc Nadon pictured on Oct. 2 on Parliament Hill with Justice Minister Peter MacKay shortly before
being questioned by a special committee to review his appointment to the Supreme Court of Canada.
Justice Nadon’s appointment, yet to be made official following the committee hearing, makes the court
majority truly one that Prime Minister Stephen Harper has shaped.
By Tim Naumetz, Hill Times, October 2, 2013
PARLIAMENT HILL — Opposition MPs put Prime Minister Stephen Harper’s latest
appointment to the Supreme Court of Canada, Marc Nadon, on the defensive Wednesday
with questions about past legal rulings, his gender since the number of female Supreme
Court judges has declined under Mr. Harper’s appointments and thinly-veiled suggestions
he may be inclined to favour the government.
In the strongest opposition questioning yet during unofficial House committee hearings
over Supreme Court appointments that began in 2006, Conservative MP Shelley Glover
(Saint Boniface, Man.) intervened at one point to object to a line of questioning from
Liberal MP Irwin Cotler (Mount Royal, Que.), a former justice minister who took issue
with a ruling the nominee, Federal Court of Appeal Justice Nadon, had made in a
controversial case involving a Rwandan man accused of inciting genocide against
Rwanda’s ethnic Tutsis in 1992.
Mr. Cotler was about to question Judge Nadon over another ruling he made, which had
favoured the Harper government in the legal battle over attempts to have accused
Canadian terrorist Omar Khadr returned to Canada from the U.S. military prison in
Guantanamo Bay, Cuba, but changed direction and agreed to ground rules for the
committee that do not allow MPs to grill the nominees over previous decisions or over
explosive legal issues they may one day have to consider in a ruling.
Judge Nadon, 64, is the sixth of nine Supreme Court judges to be appointed by Prime
Minister Harper (Calgary Southwest, Alta.), in collaboration with his minister of justice
and following extensive consultations with top judges, attorneys general in the provinces
and regions the judges would represent on the highest court in the land.
But Mr. Harper’s first appointment, former Manitoba Court of Queen’s Bench judge
Marshall Rothstein, had been selected by former Liberal prime minister Paul Martin but
not yet appointed before 2006 federal election. Mr. Nadon’s appointment, yet to be made
official following the committee hearing, makes the court majority truly one that Mr.
Harper has shaped.
Former Progressive Conservative prime minister Brian Mulroney appointed Judge Nadon
to the Federal Court in 1993, part of a string of patronage appointments that Mr.
Mulroney made as he prepared to step aside before B.C. MP and then justice minister
Kim Campbell took over the Progressive Conservative leadership and the Prime
Minister’s Office, and before an overwhelming defeat in a general election later that year.
Liberal prime minister Jean Chretien, who ousted the Progressive Conservatives from
office in 1993, named Judge Nadon to the Federal Court of Appeal in 2001. He is the first
judge appointed as one of three Supreme Court judges from Quebec to come from the
Federal Court, which led Mr. Harper to obtain opinions from two retired Supreme Court
judges and a leading Canadian constitutional scholar that affirmed the appointment met
constitutional requirements for Quebec representation.
In the Khadr case, Judge Nadon disagreed with two fellow Court of Appeal judges, and
wrote that the Federal Court did not have the authority to order the Canadian government
to take steps to repatriate Mr. Khadr, jailed in Guantanamo over allegations he had fought
in Afghanistan as a 15-year-old supporter of the Taliban and killed a U.S. soldier. The
Federal Court of Appeal majority decision ordering the government to come to Mr.
Khadr's aid was later effectively overturned by the Supreme Court.
The Supreme Court said it could order the government to repatriate Mr. Khadr, but made
it clear Mr. Khadr's legal rights had been violated and that the government had an
obligation to protect him.
In 2001, Judge Nadon partially upheld an Immigration and Refugee Board appeal
decision that favoured accused Rwandan war criminal Leon Mugesera in an appeal of a
deportation order for crimes against humanity. But when Mr. Cotler pressed Judge Nadon
at the Parliamentary committee, Judge Nadon pointed out that his decision would have
resulted in Mr. Mugesera’s deportation. The Supreme Court overturned a Federal Court
of Appeal ruling that would have resulted in Mr. Mugesera remaining in Canada. Judge
Nadon had ruled only that there was no evidence Mr. Mugesera had committed crimes
against humanity, but agreed with the other counts against him.
When Mr. Cotler questioned Judge Nadon about how his appointment could contribute to
diversity on the Supreme Court—which now has only three women as judges, including
Chief Justice Beverley McLachlin, Judge Nadon gave a lengthy and often rambling
response.
“I have a hard time saying why I add to diversity. I’ve talked about my background; I
have a specific background, as does each one of you. I have my own life journey, for
better or for worse. I have a legal vision. I had the career I’ve described to you as a judge.
I’ve had hundreds if not thousands of cases on just about every topic under the sun,”
replied Judge Nadon.
“I have learned a lot, I’ve heard many arguments, I’ve had many opportunities to reflect
on all of these topics that concern not just those affected by a case, but those that concern
society, Charter [of Rights] issues, Section 7 [on legal rights], Section 15 [on quality
rights], Section 6 on mobility rights,” he went on.
“I’ve had 20 years to reflect on that, and the law doesn’t operate in a vacuum; many
things must be understand to be a good job, for example history, sociology, and this isn’t
to toot my own horn, but for 20 years one of the things I’ve most appreciated as a judge is
I’ve had the opportunity, as opposed to practising law, being a judge gives us the
freedom, there’s no excuse for not understanding or trying to understand all the major
issues of a society,” Judge Nadon said.
“Am I the ethnic candidate that fits perfectly? Well, I can’t answer that; I’ll let others
answer that question. It’s not up to me to answer that. I hope that answers your question a
bit,” he said.
Norman Spector, the prominent blogger and a former chief of staff to prime minister
Mulroney, said Wednesday that although the opposition parties may be suspicious of
Prime Minister Harper’s appointments, it should be no surprise Canada’s prime ministers
would appointment Supreme Court judges whom they feel would generally support their
constitutional and other legal viewpoints.
But he said Canada’s judiciary is notably independent, and Supreme Court judges have
consistently proven to be eminently qualified.
“I think we’re fooling ourselves, and maybe intentionally fooling ourselves for reasons of
political correctness to think that a judge’s views have no bearing on whether they get
appoint to the Supreme Court or not, or to any other court,” Mr. Spector told The Hill
Times in an interview.
“I don’t know who else was on the list, I’m sure they were all qualified, it’s almost
impossible for a non-qualified judge to get on the list, but at the margin, I don’t think we
should think that a Prime Minister appointing judges is any different than an American
president appointing judges,” Mr. Spector said.
-----------------------------------------------
Next Supreme Court judge admits he doesn’t
fit ‘diversity’ expectations
Justice Marc Nadon, the government’s surprising pick for the Supreme Court of
Canada, admitted he didn’t fill any gender, ethnic or “diversity” expectations for
the high court bench.
By Tonda MacCharles, The Toronto Star, October 2, 2013
OTTAWA—Justice Marc Nadon, the government’s surprising pick for the Supreme Court of
Canada, admitted he didn’t fill any gender, ethnic or “diversity” expectations for the high court
bench.
But Nadon, 64, the son of a Quebec hockey player and a Ukrainian-born big band singer,
defended his qualification for the country’s top court by dint of a nearly 40-year legal career,
including the last 20 as a judge.
Liberal MP and justice critic Irwin Cotler, a former justice minister during a time that two women
— Rosalie Abella and Louise Charron — were appointed to the high court, asked “what element
of diversity do you contribute to the bench?”
Nadon said frankly he was hard-put to identify himself as anything but experienced at deciding
cases with the impartiality and intellectual rigour expected of judges.
He said he was drafted for the Detroit Red Wings at the age of 14, but at 16, chose law over a
career in hockey, and has no regrets.
“I have a legal vision,” said Nadon, who has experience with thousands of cases across a range
of constitutional, administrative and other public law areas. Married for 30 years and father to a
young Quebec lawyer, Nadon defined his judicial qualities: “I’m an independent thinker, I have a
lot of patience, I work well with my colleagues. I’m willing to be moderate when necessary and
steadfast when I need to be.”
Nadon faced a grilling Wednesday over his candidacy for a job many thought would go to a
woman or a judge whose judicial career was grounded in Quebec.
Justice Minister Peter MacKay later told reporters “there will be other appointments” and
“opportunities” to name women to the bench. Two more vacancies will come up due to
mandatory retirements in the next two years. But MacKay made no promises they would go to
women, saying legal excellence is the priority.
He also noted it is the prime minister’s decision. “It’s not up to me in the final analysis,” said
MacKay.
Fluently bilingual, Nadon parried questions and gave answers in both official languages, and
displayed a conservative reflex not to venture into politics.
His personal view is that it’s not up to judges to legislate. The Supreme Court of Canada is not
another parliament, said Nadon.
“It’s not up to us to say this isn’t a good law, we’re going to re-do it . . . . It’s not my job to find
solutions Parliament should have found itself . . . our job is to apply the law.”
And he stepped back from opining on a politically contentious topic: whether high court judges
should be bilingual — the subject of a past NDP bill. Nadon said “in a perfect world, all judges at
all levels would be bilingual,” but there are many “considerations.”
“I have an opinion,” he continued, but then Nadon abruptly interrupted himself and said he’d
better stop there: “It’s a matter for the executive,” and declined to comment further.
He denied that having opted to become a “supernumerary” judge that he was in semi- or “preretirement.” Nadon said he had done the opposite; that after reaching 60 years of age and 18 years
of judicial service, he opted not to take a full pension, but to reduce the number of cases in order
to hear longer, more complex appeals that did not reduce his workload.
Asked repeatedly about his lack of criminal law experience, Nadon admitted he didn’t have
much, either from his time in private practice nor at the Federal Court’s trial and appeal divisions,
except for a handful of terrorism cases that occasionally came for review.
Nevertheless, he said judges are quick studies in areas of law they are unfamiliar with and if
appointed, he said, “I will learn a lot about criminal law in three months.”
Nadon, an avid golfer, reader and expert in maritime law, is Harper’s sixth appointment, and the
fifth man the prime minster has named to the high court.
He said his decision to highlight in his application for the Supreme Court job a number of his
rulings that upheld the federal Conservative government’s view was merely to show his range in
administrative and constitutional law, not to show him agreeing with the government. “I didn’t
render decisions just so the government could win.”
-------------------------------------------------------
How Stephen Harper picks judges: Siddiqui
Prime Minister Stephen Harper has an inclination to name and promote littleknown jurists or those with limited experience.
By Haroon Siddiqui, Toronto Star columnist
Stephen Harper’s appointment of Marc Nadon to the Supreme Court of Canada is being
faulted on two counts:
• That the prime minister failed to name a woman, as widely expected and suggested,
including seemingly by Chief Justice Beverley McLachlin. This leaves the top court with
twice as many men as women — six to three.
• That Harper has picked a conservative with ideological affinity to his brand of
conservatism — not on social issues, such as abortion, but rather on governance, such as
how much deference the courts should show the executive branch. In other words, Nadon
may not be the type to challenge the prime minister on policies and interpretation of law.
Nadon will likely give unto government what the government considers to be
government’s and unto the courts what he thinks is the court’s — as he suggested before
a parliamentary panel Wednesday.
There may be a third element worth considering — the prime minister’s inclination to
name and promote little-known jurists or those with limited experience.
Nadon is so unknown that following his nomination Monday, even senior legal circles
wondered, “Marc Who?”
A senior Toronto lawyer said: “I was with some judges the other day and the universal
reaction was one of puzzlement. Nadon was a bit of a mystery to them. Maybe he is wellknown to Harper or one of his cronies.”
A similar sentiment had greeted Harper’s 2011 appointment of Andromache
Karakatsanis to the highest court. Her elevation was considered unusual since she had
served barely 19 months on the Ontario Court of Appeal, to which she had also been
named by Harper. It was said that she had not produced jurisprudence of note but that she
was more known as having served the Mike Harris government well, as deputy attorneygeneral and also secretary to the cabinet, which included Jim Flaherty and two others
who have since become an integral part of Harper’s cabinet — John Baird and Tony
Clement.
Flaherty’s role was also questioned in the elevation of another judge to the Ontario Court
of Appeal. In 2007, the legal community was shocked when Harper bypassed Dennis
O’Connor for Ontario chief justice, even though his candidacy had been endorsed by Roy
McMurtry, then retiring chief justice, and also by all the other judges on that bench.
It was said that Flaherty had been unhappy with O’Connor’s 2002 conclusions on the
inquiry into the Walkerton disaster, in which seven died after drinking contaminated
water.
The issue has been revisited by McMurtry in his just-released Memoirs and Reflections
(University of Toronto Press).
He notes that the O’Connor report “was critical of the Harris government . . . In addition,
the premier’s office was annoyed that the premier himself was called as a witness at the
inquiry . . .
“Unfortunately, Flaherty’s resentment lingered longer and in 2007 when . . . I was
advised that he persuaded (the federal) cabinet to block the appointment of O’Connor.
“Flaherty told some of his former political colleagues in Ontario of his strong opposition
to O’Connor’s appointment, and they in turn revealed the information to me. I also
learned from other former political colleagues . . . that the Harper government believed I
had no right to state my views publicly about my successor,” even though “Dennis is one
of the most respected legal figures in Canada.”
Another Harper appointment to the bench that raised some eyebrows was that of Justice
Alexandra Hoy as Associate Chief Justice to the Court of Appeal for Ontario last year.
She had served just 18 months on that court after being named to it by Harper.
“It all seems to be a buddy system — what seems to count most is whom you know,”
said the Toronto lawyer.
Nadon, 64, has been a supernumerary (semi-retired) judge at the Federal Court of
Canada — not the usual source for filling Quebec’s quota of three judges on the Supreme
Court.
In announcing his nomination, the prime minister’s office was on the defensive about
both Nadon’s expertise and his Quebec credentials.
The PMO emphasized his expertise in maritime law, even though the top court rarely
deals with admiralty matters. And the announcement appended a legal opinion that he
was indeed eligible to be appointed to the court from Quebec, having been a member of
the Quebec bar.
The process by which judges are selected remains secretive and tightly controlled. While
a parliamentary committee of five shortlisted three names (the other two remain secret),
it’s the Conservative majority on it that ensured Nadon was on that list and Harper picked
him.
Prime ministers have always had that prerogative. But as opposition leader, Harper
attacked the process as too closed. He called for a more open and transparent system. The
only nod to that promise is that his nominees are paraded before the cameras — in a TV
show in which an ad hoc committee of Parliament plays its assigned role. On Wednesday,
Justice Minister Peter MacKay made that abundantly clear, saying that tough questions
on controversial matters were absolutely off limits.
----------------------------
Le juge Nadon, candidat à la Cour suprême, a
comparu en comité
Lorsqu'il sera confirmé dans ses fonctions, le juge Nadon sera le sixième à être nommé par Stephen Harper
depuis qu'il est arrivé au pouvoir en 2006. PHOTO CHRIS WATTIE, REUTERS
Stéphanie Marin, La Presse Canadienne
D'avoir des juges bilingues à la Cour suprême est un «but noble», a déclaré le candidat
désigné comme futur juge pour cette Cour, Marc Nadon, avant de se reprendre et de dire
que cette décision relève du gouvernement. Peu avant de faire cette affirmation, il avait
raconté une anecdote sur les dangers de la traduction.
En comité parlementaire spécial sur sa nomination, où il a répondu pendant près de trois
heures aux questions des députés fédéraux, mercredi, le juge Nadon s'est aventuré sur ce
délicat dossier politique qui divise à Ottawa.
«Dans un monde idéal, ou un monde parfait, tous les juges à tous les niveaux seraient
parfaitement bilingues. La réalité est différente pour toutes sortes de raisons», a avancé le
juge, qui avait commencé sa réponse en précisant qu'il ne voulait pas donner son opinion.
«C'est un but qui est noble», a-t-il dit, soulignant toutefois qu'il y a d'«autres
considérations».
«C'est l'exécutif qui doit tenir compte de ces choses-là», a prudemment dit le juge, luimême bilingue. «Je vais m'arrêter là.»
Avant, il avait conclu sa présentation, somme toute assez courte, en racontant une
anecdote sur les «dangers qui se cachent derrière la traduction».
Il avait alors fait part de l'histoire vraie du Lord Chancelier d'Angleterre, Elwyn Jones,
qui, dans une allocution à Paris, avait suscité l'hilarité des avocats français. Ses références
aux «common lawyers» (avocats de common law) avaient été traduites par «les avocats
bien ordinaires du Royaume-Uni».
Les difficultés de la traduction sont l'un des arguments évoqués par ceux qui militent
pour avoir des juges bilingues à la Cour suprême. Ils estiment qu'il est important pour les
juges de bien pouvoir saisir les nuances faites par ceux qui plaident dans l'une ou l'autre
des langues officielles du pays.
Questionné à ce sujet après la réunion du comité, le ministre de la Justice, Peter Mackay,
a parlé de l'importance d'avoir une traduction exacte car cela peut être un motif d'appel
d'une décision.
Le bilinguisme des juges serait-il alors la solution?
«Cela fait partie de la question plus large de l'accès à la justice», a vaguement répondu le
ministre. Il affirme discuter avec beaucoup de personnes au sein du système judiciaire des
problèmes d'accès, incluant le fait de pouvoir avoir des procès dans les deux langues. Il
souligne que cela représente un défi dans plusieurs endroits au pays.
La position du gouvernement conservateur est pourtant la suivante: exiger le bilinguisme
va empêcher des juges très compétents d'accéder au plus haut tribunal du pays. En 2011,
la nomination du juge unilingue Michael Moldaver avait fait des vagues.
L'audience du juge en comité parlementaire s'est déroulée sans trop de confrontation. Les
députés ne peuvent poser toutes les questions qu'ils voudraient et le juge ne peut
s'aventurer à donner son opinion sur des problèmes légaux qu'il pourrait être appelé à
trancher.
M. Nadon a toutefois fait part de sa vision de la Cour suprême et le rôle qu'il va y jouer.
Il s'est décrit comme un joueur d'équipe qui peut mettre de l'eau dans son vin quand cela
est nécessaire. Son but est de rendre, en toutes circonstances, la «meilleure décision
possible».
Il a par contre dû défendre son expérience en droit civil. Sur un banc de neuf juges au
plus haut tribunal du pays, trois doivent provenir du Québec.
Marc Nadon, qui a oeuvré principalement comme juge au sein de diverses cours
fédérales, a été appelé à se justifier par la députée néo-démocrate Françoise Boivin, qui
siège au comité. Elle estime que les places réservées au Québec le sont pour que la
tradition civiliste soit bien comprise et appliquée.
Il a fait valoir qu'en tant que juge, il a très souvent appliqué le droit civil, même si cela
n'était que de façon indirecte. Il a expliqué qu'il devait comprendre le droit civil, le droit
de l'emploi notamment, lorsqu'il présidait une cause sur l'assurance-emploi, qui est une
loi fédérale.
Et alors qu'il pratiquait comme avocat à Montréal, il a plaidé le droit civil devant les
tribunaux, a-t-il ajouté, dans le cadre de son témoignage qui s'est déroulé en grande partie
en français. Il est par ailleurs membre du Barreau du Québec depuis 1974.
Ensuite questionné sur la place du droit civil au Canada, M. Nadon a affirmé que les
juges sont les «gardiens du droit civil», qui ne doit pas «être sacrifié à la common law».
Après l'audience, Mme Boivin s'est dite en partie rassurée sur son expérience et a
souligné qu'il est un brillant juriste.
Le candidat choisi par le premier ministre Stephen Harper a d'ailleurs une longue feuille
de route: il est actuellement juge à la Cour d'appel fédérale, et, auparavant, a été juge à la
Cour fédérale, à la Cour martiale et au Tribunal de la concurrence. Il est aussi un
spécialiste en droit maritime.
Certains ont déploré - le NPD notamment - que le premier ministre Harper n'ait pas choisi
une femme pour combler le poste et ainsi rétablir un peu l'équilibre hommes-femmes au
sein de la Cour suprême.
Il n'y a que trois femmes sur neuf juges siégeant au plus haut tribunal du pays.
«Pour moi, le meilleur point, c'est la capacité de comprendre le droit, l'excellence et le
mérite», a fait valoir M. MacKay après l'audience.
Il dit comprendre le désir d'avoir un équilibre à la Cour suprême. «Il y aura d'autres
nominations, soyons clairs», a-t-il dit aux journalistes. Un autre juge québécois, Louis
Lebel, doit prendre sa retraite l'an prochain.
Lorsqu'il sera confirmé dans ses fonctions, le juge Nadon sera le sixième à être nommé
par Stephen Harper depuis qu'il est arrivé au pouvoir en 2006.
--------------------------------------------------
Comment juger un juge?
La Loi sur la Cour suprême énonce les qualifications minimales pour être juge, mais elle reste silencieuse
quant aux processus d'identification et de sélection. Le gouvernent devrait se montrer plus transparent. Sur
la photo, Marc Nadon, qui vient d'être nommé juge à la Cour suprême. PHOTO CHRIS WATTIE,
REUTERS
Irwin Cotler, ancien ministre de la Justice, l’auteur est député libéral et professeur
émérite de droit à l’Université McGill
La nomination à la Cour suprême du juge Marc Nadon a soulevé d'importantes questions
sur le processus en place pour déterminer qui siégera au plus haut tribunal du Canada.
Comme l'a exprimé le columnist Yves Boisvert, «rarement une nomination à la Cour
suprême a autant étonné».
Si on m'avait demandé quelles étaient mes priorités au moment où je suis devenu ministre
de la Justice en 2003, je n'y aurais pas inclus le processus de nomination des juges.
Pourtant, j'ai appris depuis qu'il s'agit d'une partie essentielle de l'administration de la
justice au Canada, particulièrement en regard de la Cour suprême. Cette cour est le plus
haut tribunal d'appel et l'arbitre final pour la résolution des litiges au pays. Elle est à la
fois un pilier fondamental de notre démocratie constitutionnelle et le gardien de la
Constitution.
La Loi sur la Cour suprême énonce les qualifications minimales pour être juge, mais elle
reste silencieuse quant aux processus d'identification et de sélection. Cela est la
responsabilité exclusive du notre exécutif - notamment le premier ministre et le ministre
de la Justice, qui peuvent déterminer non seulement la procédure et le moment chaque
nomination, mais aussi les critères de sélection applicables. Peut-être le moment est-il
venu d'établir formellement cette procédure.
Par exemple, le premier ministre a fait annoncer la nomination du juge Nadon juste avant
midi lundi dernier. Un comité parlementaire a été convoqué pour mercredi 13h afin de
rencontrer le juge. La Cour commence sa session d'automne lundi prochain. Ce court
délai ne donne pas aux membres du comité le temps nécessaire pour faire des recherches
approfondies sur le candidat et préparer des questions pertinentes.
De plus, il ne donne pas aux autres juges siégeant à la Cour suprême l'occasion de faire
connaissance avec ce nouveau juge avant le début de la session automnale. Le juge
Morris Fish, que M. Nadon remplace, avait annoncé le 22 avril dernier qu'il quitterait son
poste à la fin d'août. Le gouvernement avait donc le temps d'agir autrement.
Le juge Nadon est expert en droit maritime, mais il n'est pas évident que ce bagage lui
sera tellement utile étant donné qu'il remplacera un expert en droit criminel. Or, la Cour
suprême doit très souvent entendre des affaires criminelles, et rarement des affaires en
matière de droit maritime. Cette question serait résolue si le gouvernement indiquait sur
quels critères il évalue les juges dont les noms lui sont proposés.
Le mérite était un facteur déterminant parmi mes critères de nomination en tant que
ministre de la Justice. Les autres: les aptitudes professionnelles, les caractéristiques
personnelles et la diversité. Les capacités professionnelles supposent le plus haut niveau
de compétence en regard de la loi et du droit; l'aptitude du candidat à écouter et à garder
un esprit ouvert lorsqu'il entend les arguments des parties; une capacité de partage d'une
lourde charge de travail dans un contexte de collaboration. Quant aux caractéristiques
personnelles, j'inclus une éthique personnelle et professionnelle impeccable, l'honnêteté,
l'intégrité et la franchise.
Le critère de la diversité relève de la mesure dont la composition du tribunal reflète
adéquatement la diversité de la société canadienne. Or, avec la nomination du juge
Nadon, seulement trois des neuf juges de la Cour suprême seront des femmes.
Nous ne devrions pas chercher à imiter le modèle de nos voisins américains, et son
système marqué par la politisation du judiciaire et des audiences de confirmations à allure
de cirque. Mais nous devons permettre un examen approfondi de la personne nommée,
avec des délais raisonnables et un processus de participation publique.
Il est nécessaire que le gouvernent soit plus rigoureux, plus inclusif, plus transparent, et
qu'il prenne une meilleure mesure des délais nécessaires dans le dossier de nominations
des juges. J'espère que le processus de nomination sera modifié à temps pour la prochaine
nomination, prévue pour l'an prochain.
------------------------------------------------
Compressions aux Anciens combattants: l'AFPC
prend les grands moyens
Paul Gaboury, Le Droit, octobre 2, 2013
La fermeture de neuf bureaux régionaux du ministère des Anciens combattants aura des
conséquences importantes sur de nombreux vétérans dans plusieurs régions du pays,
estime l'Alliance de la fonction publique du Canada (AFPC).
Jeudi, l'AFPC a décidé de prendre les grands moyens en réunissant à Ottawa dans un
hôtel des anciens combattants et des syndiqués touchés par ces fermetures. Ils viendront
témoigner des conséquences de la fermeture de ces bureaux dans plusieurs communautés
du pays.
Le plus important syndicat de fonctionnaires fédéraux espère ainsi convaincre le
gouvernement fédéral de revenir sur sa décision de fermer les bureaux des Anciens
combattants dans les villes de Kelowna, Prince George, Saskatoon, Brandon, Thunder
Bay, Windsor, Sydney, Charlottetown et Corner Brook.
Le syndicat dévoilera alors une vidéo qui sera par la suite disponible sur YouTube.
Ce n'est pas la première fois que l'AFPC organise une rencontre avec la presse afin de
faire témoigner des victimes des compressions et des réductions de services.
En mars 2012, le syndicat avait réuni dans une des salles du Parlement plusieurs de ses
dirigeants syndicaux et des victimes des réductions budgétaires afin d'alerter les
Canadiens des conséquences sur les services publics.
-------------------------------------------------------------------------
Veterans’ union to protest closure of local
offices
By Kathryn May, Ottawa Citizen
OTTAWA — The union representing front-line workers for Canada’s war veterans is
ramping up its campaign to save the nine Veterans Affairs district offices the
Conservative government is closing as part of its sweeping cost-saving cuts.
The Union of Veterans Affairs Employees (UVAE) has been waging a battle over the
past year to save the offices in the nine communities losing them, but it is bringing its
campaign to Ottawa Thursday with a parade of workers and veterans who will make the
case why these offices are critical for veterans to get access to the services they need. The
Union of Veterans Affairs is among the unions under the umbrella of the giant Public
Service Alliance of Canada (PSAC).
The stepped-up campaign comes on the heels of Veterans Ombudsman Guy Parent’s
recent report about the shortfalls in the level of financial support given to veterans,
particularly those severely wounded or disabled. The study compared the old system of
compensating veterans under the Pension Act with the new Veterans Charter, legislation
backed by the Conservative government when enacted in 2006.
Now the front-line workers who help veterans navigate the system and get access to those
benefits and other services argue the closure of nine offices will undermine the care
veterans were promised when they enlisted. Veterans Affairs faced significant cuts in the
2012 budget that will eliminate about 784 jobs.
The government plans to shut district offices in Corner Brook, Charlottetown, Sydney,
Windsor, Thunder Bay, Brandon, Saskatoon and Kelowna in February. The Prince
George office is already closed and the department is replacing the Charlottetown office
— where the department is headquartered — with a service kiosk.
The existing files will be folded into the caseloads of other offices, which the union
argues are already swamped with files. The Sydney office, for example, has 4,200 files
that will be moved to Halifax where veterans will have to drive five to seven hours for a
visit or call a toll-free number.
Many of the veterans don’t even know about the closures unless they are told by their
case workers.
Peter Stoffer, the NDP’s veterans affairs critics and strong supporter of the PSAC
campaign, said the service agents and case workers in these offices typically work oneon-one with veterans to help them navigate the system on the benefits and services they
can access.
He said case workers offer a lifeline to isolated elderly or severely disabled vets with
their home visits, hooking them up with whatever services they need, from rehabilitation
and mental health services to help with paperwork for benefits and pensions.
The closures will force veterans to travel to offices to other cities or use the phone or
computers, which is a challenge for veterans who are elderly, disabled, or even suffering
from PTSD. The average age of a surviving Second World War veteran is 88.
Stoffer said department is turning over more of its calls to Service Canada or to private
operators who don’t understand and know the details of veterans’ programs and often
have little knowledge of different provincial health care systems. He said Service Canada,
facing its own budget cuts, will refer veterans to a toll-free number where they will be
bumped to four or five agents until “they give up in frustration and suffer in silence.”
“Closing these offices is a mean-spirited move because these bureaucrats know exactly
what they are doing because if they close them, they won’t get the call for services,” said
Stoffer.
PSAC estimates there are 750,000 veterans and 110,000 serving members of the military
and RCMP. Of those, about 200,000 of them, including spouses and survivors, are getting
services from the department. The rest haven’t applied, may have been denied services or
may not know they exist.
Stoffer said the office closures drives home how much the government’s view of its
responsibility for veterans has changed since the Second World War. He said the
department regularly checked up on veterans in the 1950s and 1960s and acted as their
champion to ensure they had access to needed services. Today, he said that advocacy role
has shifted to the voluntary and charitable sector where various organizations have
appeared to fill the void and fight for veterans rights.
The government has justified the closures by pointing to the number of declining Second
World War and Korean veterans. The PSAC doesn’t buy that argument. There are more
than 680,000 veterans and current members of the military who didn’t serve in the
Second World War and nearly 10 per cent of them are disabled.
At current rates of growth, the number of new veterans already outnumbers those who
served in the Second World War and the average age of the 594,300 military veterans is
56 years old and their needs will grow as they age.
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Tim Hudak keen to make Ontario a
‘right-to-work’ jurisdiction
Tory Leader Tim Hudak says right-to-work legislation will help get
Ontarians back to work.
Ontario PC Leader Tim Hudak says the Liberal government has no plan for the economy. Liberals
responded by calling him “Tennessee Tim” for his staunch opposition to the rights of organized labour.
Richard J. Brennan, The Toronto Star, September 30, 2013
Tory Leader Tim Hudak says he won’t back off his controversial plans for the province,
including making Ontario a “right-to-work” jurisdiction.
“This is all about workers choice. This is all about choosing whether they want to be in a
union or not,” he told a Queen’s Park news conference Monday.
Hudak is intent of getting rid of the Rand Formula, which requires that all workers at a
unionized shop pay union dues, whether they choose to join the union of not.
The Rand Formula dates back to an arbitration decision by Canadian Court Justice Ivan
Rand in 1946, part of the arbitration settlement that ended a United Auto Workers’ strike
at the Windsor, Ontario Ford plant. It ensured there are no so-called free riders.
“I just think we have reached a level in the 21st century that an approach based in the
1950s is holding us back,” Hudak said.
“It just runs again our values as Ontarians if you refuse to join the union you are fired
from your jobs,” he said, insists that such laws are driving investors from Ontario.
“I am also tired of seeing manufacturing jobs leap over Ontario, going to Indiana,
Michigan, and Wisconsin. I want to see a comeback in manufacturing and this is part of
that plan,” the Tory leader said.
“We saw a study just last week that youth unemployment in Ontario is worse than the
rust belt states in the U.S. Whoever imagined the day that the advice would be to go to
Michigan or Illinois or Indiana to get a job?”
All three U.S. states are right-to-work states, a policy that has been described by U.S.
President Barack Obama as a “right to work for less.”
Later in the legislature, Liberal MPPs were calling Hudak “Tennessee Tim” for his
staunch opposition to the rights of organized labour.
When speaking to reporters, Hudak had desks on either side of him piled with 14 Tory
policy papers, which the party hopes will help form the Tories’ election platform come
the next election.
Hudak urged Premier Kathleen Wynne to steal any of his policies to kick start the
economy.
“The Liberals have no plan for jobs and the economy . . . then take our plan,” he said.
------------------------------------------------
Le ministre Clement de nouveau accusé de
«mauvaise foi»
Le ministre Tony Clement (photo Adrian Wyld, La Presse Canadienne)
Paul Gaboury, Le Droit, 30 septembre 2013
Le président du Conseil du Trésor, Tony Clement, est de nouveau sur la sellette et accusé
de «mauvaise foi», cette fois dans ses négociations sur le régime de soins de santé des
employés et retraités fédéraux.
Le ministre Clement a informé les syndicats et associations de retraités du gouvernement
fédéral, la semaine dernière, qu'ils devront accepter de doubler le montant des cotisations
versées par les retraités de la fonction publique fédérale avant d'accepter des changements
négociés l'année dernière visant à bonifier le régime des soins de santé.
Avant de signer l'entente négociée entre les syndicats et les représentants du Conseil du
Trésor, l'an dernier, le ministre souhaite également que la période d'attente avant de
toucher les avantages complémentaires de retraite soit trois fois plus longue.
L'entente sur les améliorations au régime de soins de santé a été conclue lors de
discussions au Conseil national mixte où les représentants du Conseil du Trésor et les
syndicats et associations de retraités discutent des avantages liés aux régimes de retraite
et soins de santé.
Les parties se sont entendues sur quelques bonifications au régime, et pour maintenir le
partage des cotisations aux taux actuels, soit 25 % pour les retraités et 75 % pour
l'employeur.
L'entente a par la suite été déposée en février dernier sur le bureau du ministre Clement
qui refuse depuis de la signer. Il persiste à imposer de nouvelles conditions à l'entente
déjà négociée, lui reprochent syndicats et associations de retraités.
---------------------------------------
Should it come with a health warning?
By Robyn Benson, PSAC President, October 1, 2013
…Federal government employment, that is. You don’t have to take the unions’ word
about working conditions in the public service any longer. Managers, too, are in a bad
fix, according to a comprehensive study carried out by the Association for Professional
Executives of the Public Service of Canada (APEX). This informative article by the
Ottawa Citizen’s Kathryn May (see below) is well worth a look, if you haven’t seen it
already.
The CEO of APEX, Linda Lacroix, doesn’t mince any words: the workplace, she says, is
making executives sick. Mental health problems have doubled since 2007. 20% are on
medication for depression, anxiety or sleeplessness.
The workplace is toxic. 22% of managers have been verbally abused by their superiors.
10% report “discourteous behaviour such as not sharing credit, breaking promises,
getting angry, telling lies, blaming and making negative comments.”
One major stressor is over-centralization of decision-making under Stephen Harper. It’s
making managers feel powerless, says Donald Savoie, a professor of public
administration. They’re “frustrated, stressed and sick…turning cranks that aren’t attached
to anything.”
Small wonder that, as the study reveals, more than half of them frequently consider
getting out. And managers as a whole are taking twice as much sick leave as their
counterparts in the private sector.
Any of this sound familiar, folks? It should. Mental health advocate Bill Wilkerson points
out the glaringly obvious: if executives are harassed, “you can bet the rank and file
employees feel harassed.” We all know what rolls downhill.
But somehow it’s cold comfort to learn that Public Service managers are suffering the
same sort of thing as our own members, even if they are validating our concerns. The
entire workplace, it seems, could use the healing touch.
What an odd coincidence of timing, though. There’s Treasury Board President Tony
Clement, complaining out loud about public workers (meaning union members) taking
too much sick leave. He’s vowed to crack down on alleged abuses. Why, he said, we take
more than our private sector equivalents!
Eventually, Statistics Canada put the lie to that, pointing out that, as PSAC has been
saying all along, apples were being compared to oranges. When adjustments are made for
unionization, gender and age, the gap between public and private sectors shrinks to about
a day per year.
Non-union workers, of course, take time off at their peril. Some have no sick leave at all.
So they tend to stagger in to work no matter how they are feeling. But bringing illness
into the workplace is no good for anyone, says Nicole Stewart of the Conference Board
of Canada, who recently authored a report on workforce absenteeism.
She goes on to note that absenteeism is a problem everywhere, but good workplace
conditions tend to bring the rates down. It took a study to reveal that?
In any case, public service executives aren’t unionized. So when they take considerably
more sick leave than private sector managers, unionization is an irrelevant concern.
Furthermore, because their private sector counterparts aren’t unionized either, publicprivate comparisons are more apt.
It’s ironic, isn’t it? Statistics Canada has shown that rank and file public workers are
actually taking little more sick leave than their private-sector equivalents. Executives,
however, are, to repeat, taking twice as much. We aren’t questioning the need for such
leave by public service managers, by the way, not by any means: we all know what the
workplace is like. But maybe—and I do say this with a twinkle in my eye—our members
should be taking a little more?
-------------------------------------------------
Depression among PS executives nearly
doubles, new study finds
Senior bureaucrats report harassment, lack of recognition in workplace
Bill Wilkerson, a leading mental health advocate, says he is worried a new study has found twothirds of federal executives are overweight and 43 per cent are obese — the highest level ever
reported because ‘obesity, depression and anxiety go hand in hand.(Photograph by: Chris
Mikula, The Ottawa Citizen)
By Kathryn May, OTTAWA CITIZEN, September 24, 2013
OTTAWA — A new study into the health of Canada’s federal executives reveals the
number battling depression has nearly doubled in the past five years as they struggle with
uncivil and harassing bosses and shrinking resources and get little recognition for the
effort they put into their jobs.
Overall, federal executives say they are still in good health, but they have become more
stressed, unhappy, isolated and obese since the Association for Professional Executives
of the Public Service of Canada (APEX) began tracking their health and the organizations
they manage.
About 11 per cent reported mental health problems compared with six per cent in 2007,
and one in five is taking medication to treat insomnia, depression or anxiety. A growing
number feel their personal health is on the decline, while one-third are sleep-deprived and
two-thirds are either overweight or obese.
The number of days they called in sick climbed to 5.4 days a year in 2012. That’s
considerably fewer than the rest of the public service, but mental health experts say it is
twice as many as senior executives in the private sector take.
On the upside, executives are working fewer hours and smoking and drinking
considerably less. The rise in incidence of heart disease and high blood pressure has
levelled, as has reported gastrointestinal diseases. Today more executives — about 20 per
cent — report “musculoskeletal ailments” such as back and neck problems. They are also
more likely to seek counselling for help than in the past.
The study paints a picture of deteriorating physical and psychological health among
executives while raising worrisome questions about the organizational health of the
departments and agencies they manage. Executives who report less commitment — more
than half say they frequently think of leaving — can’t help but eat into performance and
productivity.
Lisanne Lacroix, APEX’s chief executive officer, said the study clearly shows the
workplace is making executives sick. The same factors that increase the risks to personal
health increase the risks to the organization’s health.
“This should matter to everybody,” she said. “The public service belongs to everybody,
all Canadians, so it’s important we address issues of a healthier workplace to make for
healthier executives which will make for a professional, productive and better-performing
public service. It makes good business sense.”
Bill Wilkerson, a leading mental health advocate who is heading a pan-European study
into depression in the workplace, said the study should serve as a wake-up call and spur
the government to adopt the new psychological health and safety standard developed by
the Mental Health Commission of Canada for the workplace and become a role model for
all employers.
“We are talking executives here, up to the top rung, and although there are some
encouraging signs there are telltale signs that demonstrate a pattern that tells me the
government is a classic candidate for psychological workplace standards which its own
minister of labour announced this year,” he said.
The study comes at a time when sick leave and renewing the public service are at the top
of the government agenda. Treasury Board President Tony Clement wants to crack down
on absenteeism and improve “wellness” though an aggressive overhaul of the sick leave
program, while top bureaucrat Wayne Wouters, clerk of the Privy Council Office, has
released Blueprint 2020, his vision for an invigorated and innovative public service that is
now under discussion.
The findings make those reforms even more critical.
APEX has struck a working group to come up with an “action plan” to help fix problems
and support executives, and is also offering to brief the largest 20 departments about their
executives. But Lacroix said four changes could make a dramatic difference in the health
of executives; they need more respect, more recognition, more control over their jobs and
more support from colleagues especially senior bosses.
The organization has been doing the survey — modelled after the groundbreaking
Whitehall study of UK public servants — for 16 years. The first was amid the stress of
the Liberals’ downsizing in the 1997; the most recent was conducted in the fall as the
Conservatives shed 19,200 jobs.
The latest study, led by Dr. Louise Lemyre, director of GAP-Santé at the University of
Ottawa’s Institute of Population Health, along with associate scientists Dr. Wayne
Corneil and Dr. Celine Pinsent, surveyed 2,215 executives of the 6,700 working in the
five levels — Ex 1 to Ex 5. Deputy ministers were not included.
About three-quarters were from the National Capital Region; 51 per cent of the
respondents were men and 49 per cent women. The margin of error is plus or minus 1.6
percentage points, 99 times out of 100.
The study found executives work an average 50.7 hours a week, while a quarter of them
work more than 55 hours. Their workloads have always been heavy and most say
technology, which connects them to work around the clock, has only added to that load.
The study also found that their stress levels have been high for the past decade — higher
than those experienced by 75 per cent of Canadian adults.
They seem to be as satisfied with the job as they were in 2007 and say they are happy
with pay, hours and workload. However, their contentment with tasks, personal career
goals and job security is slipping.
What’s unusual for federal executives compared with private sector executives is that
they feel they have little control over their jobs, which the researchers said leaves them
particularly vulnerable to stresses of the job.
This lack of control is a trend that political scientists argue is a consequence of the
concentration of power and decision-making in the Prime Minister’s Office, the Privy
Council Office and among a handful of deputy ministers.
The University of Moncton’s Donald Savoie once said executives are “frustrated, stressed
and sick” because they increasingly find themselves keeping “busy turning cranks that
aren’t attached to anything.”
At the same time, the public service seems to have become a nastier place to work.
Executives complain they are harassed and “verbally abused” and that most of the abuse
comes from bosses further up the line.
About 22 per cent — about the same as in 2007 — reported they were “verbally abused”
by superiors in the past year. About 10 per cent characterized the workplace as
disrespectful, citing discourteous behaviour such as not sharing credit, breaking promises,
getting angry, telling lies, blaming and making negative comments.
The report noted the proportion of executives who reported harassment and incivility was
consistent across the ranks, from Ex 1 to Ex 5, and said it couldn’t help but have a
harmful effect on people and the organization.
Wilkerson said it’s disturbing to see such responses from the executives, who are the best
paid and most senior ranking bureaucrats and are supposed to be in charge of their
departments. He said executives in the private sector wouldn’t complain about such lack
of control or harassment from their bosses. And if the executives are harassed, he said,
you can bet the rank and file employees feel harassed.
“The embedded frustration over lack of control in their jobs on decisions, procedures and
process … should be telltale signs of an organization that is adrift because when an
executive, who should be controlling their destiny more than rank-and-file employees,
have the same complaints as the rank and file.
“And harassment of the nature reflected in this study indicates a sense of powerlessness
and that in turn reflects a centralization of authority and decision-making.”
Despite the stress, 68 per cent are still “engaged” and the proportion of those who say
they are “actively engaged” has increased. Still, the percentage of those who are “actively
disengaged” is also increasing.
Resilience seems to come with age, with those over age 55 more resilient than those
under age 45. Those under age 45 also report “lower levels of well-being.”
But Wilkerson said he was worried to learn that two-thirds are overweight and 43 per
cent are obese — the highest level ever reported because “obesity, depression and anxiety
go hand in hand.” Half said they are sedentary and study found many don’t get enough
exercise to improve their health.
“We find out the public service that’s always criticized as fat and overstaffed ..... is
literally getting fat … I think that should be a high-priority concern that Canadians’
investment in the salaries of public servants are being compromised by a trend to highrisk health conditions and we can trace this to the kind of frustrations they face and the
pressure of discontent flowing in the public service at this time.”
--------------------------------------
Canada’s access to information legislation among
the worst in the world
Information Commissioner of Canada Suzanne Legault. PHOTO: THE CANADIAN PRESS/ADRIAN
WYLD
Comment by William Wolfe-Wylie, Editor at Canada.com September 30, 2013
Canada’s Access to Information legislation is officially embarrassing.
Out of 95 countries surveyed by the Centre for Law and Democracy, Canada came in at
an unrespectable 56th place.
The study looked at the information citizens had a right to access, the scope of the
legislation, exceptions and refusals to complying with the legislation, appeals available,
sanctions and protections and even the advertising to promote the rights to information.
Canada’s ranking is one place ahead of Rwanda, but falls behind Colombia, Mongolia
and Russia.
Well done, Canada.
On crucial measures like the scope of Canada’s access to information laws — which
includes critical details like which departments are excluded from the legislation, who
can access the information and how much room there is to hide information outside the
reach of the legislation — Canada was a meagre fifth from last place.
Every country in the world, with the exception of Tajikistan, Australia, Iceland, China
and Greece have more government information available to citizens than Canada.
Canada also performed exceptionally poorly in the “exceptions and refusals” category,
which measures how often information is not disclosed and under what circumstances,
even if it appears to fall under the normal access to information legislation.
Under that framework, Canada is the 16th-worst in the world, measuring only slightly
better than Israel, Pakistan, Portugal and Guyana.
Back in 2011, Canada ranked 49th place among the 89 countries surveyed at that point.
Canada’s overall score did not change between the two studies, but the addition of more
countries to the survey proved there were more nations doing a better job at access to
information than Canada.
“Typical weaknesses were the limited scope, over-broad exceptions regimes,
shortcomings in oversight and appeals mechanisms, and lack of legal requirements to
promote awareness of the public’s right of access to information,” the study’s authors
wrote.
That sentiment is echoed by Canada’s information commissioner Suzanne Legault in a
column examining Canada’s access laws she wrote earlier this year.
“I have also been and continue to be in favour of bringing all institutions funded by
taxpayers’ dollars, in whole or in part, under the act. That means the House of Commons
and the Senate, ministers and their offices, and the Prime Minister’s Office,” she wrote in
a June column.
“If Parliament is serious about transparency and accountability, it must not only
proactively disclose much more information regarding the expenses and allocations of
parliamentarians, it must also subject itself to the Access to Information Act,” she
continued.
Canada has become a secretive country that resists giving its own citizens the raw
information they require to make informed decisions about their government. Canadians
have no right to information in the legislative or judicial branches of government, or the
prime minister’s office.
Fixing those basic elements, though, is only a first step to modernizing our access to
information legislation.
You can examine the whole data set for yourself here.
-------------------------------------------------------------
Goodbye, Fat City
The global debt crisis has us in its grip — and won’t soon let go
Ottawa’s reputation as Fat City may need rethinking: The most recent data from Statistics Canada reveal
that Ottawa-Gatineau has suffered a loss of nearly 17,000 federal government jobs since Jim Flaherty’s
2012 budget — representing 86 per cent of the government’s downsizing. Photograph by: Adrian Wyld ,
THE CANADIAN PRESS
By JAMES BAGNALL, Ottawa Citizen, September 27, 2013
Finance Minister Jim Flaherty made it seem so straightforward 18 months ago when he
tabled his eighth budget. To help trim federal spending, he said the Conservatives would
eliminate 19,200 federal government jobs across the country by 2015 — about five per
cent of the total workforce.
Flaherty’s colleague, Foreign Affairs Minister John Baird, suggested the impact on the
National Capital Region would be relatively gentle. Just 7,700 federal positions would be
cut here, including 4,800 layoffs, he asserted in the wake of the budget — roughly in line
with the region’s 40 per cent share of the government’s workforce.
Turns out he was the supreme optimist. The most recent data from Statistics Canada
reveal that Ottawa-Gatineau has suffered a loss of nearly 17,000 federal government jobs
since Flaherty’s 2012 budget — representing 86 per cent of the government’s
downsizing.
Not only does that far exceed original Conservative estimates, the drop is just short — by
a few hundred — of what the National Capital Region experienced after former Liberal
finance minister Paul Martin’s “hell or high water” budget in 1995.
In relative terms, Martin’s cuts were more dramatic — a 19-per-cent slide in government
employment locally compared to an 11-per-cent drop so far since Flaherty’s 2012 budget.
But the Conservatives aren’t done yet. While the initial rush of layoff notices to civil
servants has slowed, the government is continuing with efforts to streamline operations
— notably in the area of information technology.
This is expected not only to eliminate more federal government jobs but also to reduce
the need to buy IT services from the private sector.
Indeed, it’s little wonder that the Conference Board of Canada on Friday ranked the
National Capital Region 12th in growth prospects this year — ahead of only Victoria
among Canada’s 13 largest cities. The Ottawa-based think tank also predicted the
National Capital Region’s economy would be the most anemic within this group —
though tied with Quebec City — during next four years. The Conference Board predicted
Ottawa-Gatineau’s $63-billion annual economy would improve no more than 0.8 per cent
this year after inflation — and that was revised downward from its 1.3 per cent projection
published in the spring. Ottawa-Gatineau’s gross domestic product is expected to
improve just 2.1 per cent annually until 2017.
The National Capital Region is proving uniquely vulnerable in the aftermath of the very
unusual 2008-09 economic recession.
Unlike most downturns — which are triggered by escalating interest rates — the latest
one erupted from a crisis in the global banking sector, brought on by a collapse in
housing.
The U.S., the U.K. and other developed nations shovelled hundreds of billions of dollars
into shoring up their financial institutions.
Then, to preserve confidence in their economies, they allowed government spending
deficits to balloon, adding trillions of dollars to the national debt. Governments are now
faced with working this down.
Although the Harper government never had to support the country’s well-run banks, it
did run up more than $150 billion in new debt to help offset the collapse in private-sector
spending.
In the past three years, Flaherty has moved with relative pace to plug the leakage.
After swelling to $55 billion in fiscal 2010 (ended March 31), the budget gap is expected
to tumble this year below $19 million — about 1 per cent of Canada’s GDP. RBC Capital
Markets of Toronto predicts the government will generate surpluses again in another two
years.
The effort to eliminate the deficit has naturally squeezed federal departments and
agencies. But with the federal budget balance approaching break even, attention is
turning to the provinces — which control funding for schools and hospitals. The latter
employed 139,000 last month in Ottawa-Gatineau, about 20 per cent of the region’s
workforce. That’s roughly the same proportion as the federal government, though some
workers in health and education are employed by private firms.
Ontario and Quebec are carrying the heaviest debt burden among the provinces — both
absolutely and in relative terms. Quebec’s net debt is nearly 50 per cent of GDP while
Ontario’s is approaching 40 per cent, according to RBC. However, Quebec at least
appears to be getting a handle on its current spending, with a break even result expected
this year. Ontario, in sharp contrast, is expected to rack up an $11.7-billion deficit over
the same period, with no surplus in sight until at least 2018.
It’s not clear that provincial spending reductions, when they come, would bite into
employment rolls at schools and hospitals. If they do, it would not likely be to the same
extent as federal downsizing hurt the public service. Nevertheless, with four workers in
10 in the Ottawa area depending directly on government paycheques, the region is
unlikely soon to return to its former status as Fat City.
Consider the contrast with Edmonton: Though it is a provincial capital, just 22 per cent of
its workforce is concentrated in government, education and health. The city obviously has
the considerable advantage — and risks — of an oil economy. Indeed, earlier this spring,
Edmonton pulled ahead of Ottawa-Gatineau for the first time in jobs, if not in population.
Calgary first overtook the region in 2002, during the depths of the tech crash that hurt so
many Ottawa firms. But as recently as three years ago, Calgary’s employment base was
still barely 1 per cent bigger than ours. Now the gap is 11 per cent in Calgary’s favour.
Ottawa-Gatineau has slid from fourth-largest job market in the country to sixth.
In the immediate wake of the 2008-09 economic recession the federal government
continued adding staff while Alberta’s energy industry retrenched. In some respects, the
recent and rapid retrenchment in the region is just the unwinding of an artificial boost in
government hiring. Both nationally and locally, federal government employment levels
are back to where they were in the fall of 2008, just prior to the recession. The portion of
federal civil servants that worked in the Ottawa area last month was about 37 per cent of
the total, down several percentage points from when Flaherty got serious about trimming
jobs. Nevertheless, that’s still far above the concentration experienced in the mid-1990s,
when just 30 per cent of the federal government’s workforce was employed in OttawaGatineau.
Given the knock-on effects of a shrinking public service on housing, retailing and other
sectors, the surprise is that the Conference Board of Canada expects Ottawa-Gatineau to
grow at all. The board points out that several major construction projects — from lightrail transit to the Lansdowne Park redevelopment — are helping to offset a decline in
new housing starts. The research group also expects retail sales to improve 3.4 per cent
next year to $18.1 billion.
This may be optimistic, depending on the spending patterns of current and former
government employees. There’s little question that Ottawa-Gatineau’s retailers have been
hit hard. Second only to manufacturers, they have lost the most jobs in percentage terms
since before the economic recession. Part of retailers’ pain has been caused by the
methods used to trim government workers — an exercise that involves multiple stages of
swapping positions and competing for surplus jobs, spread over many months.
The number of federal workers warned about the possibility of losing their jobs far
exceeded the actual job reductions. The result, not surprisingly, was a reluctance to spend
money in local shops. Nevertheless, the worst of the downsizing is likely over, which
should eventually reduce the overhang.
A second reason for caution about the strength of retailing has to do with the aging of the
public service — although government workers enjoy indexed pensions, people at or near
retirement tend not to be big spenders. They are too busy saving. And the younger
government employees are faced with escalating contribution requirements as their
employer shifts more of the responsibility for funding pensions to workers. By 2015,
many employees will be contributing 7.05 per cent of the first $51,100 of their annual
salary towards pensions, compared to 6.3 per cent today and less than 5 per cent in 2008.
There’s room for some optimism in the National Capital Region which continues to rank
among the country’s most livable and affordable urban areas. Among other things, it is
benefiting from a rural to urban shift, though to a lesser extent than is the case with the
country’s other large cities. Since the beginning of the recession Canada’s 33 largest
urban areas have added 730,000 employees while the rest of the country has lost 427,000.
Ottawa-Gatineau’s contribution to the plus side was a modest 7,800, but positive
nevertheless.
Unfortunately, the size of our workforce, which includes people looking for jobs, grew
even faster which is why our jobless rate is up. The same pattern was true of Canada’s
other big cities but it was more pronounced in Ottawa-Gatineau. The region’s
unemployment rate last month touched 6.9 per cent (when adjusted for seasonal
influences). Not only is that sharply higher than the 5.1 per cent rate posted five years
earlier, it came close to matching the national jobless rate for the first time since the tech
recession nearly a decade ago.
This is why the region requires some economic catalysts, especially from high-tech.
Despite the industry’s recent troubles — and the likely impact of more BlackBerry
layoffs — it still accounts for 7 per cent of the region’s workforce, about the same ratio
as during the mid-1990s. There is a base of talent here capable of considerable growth
under the right circumstances. Whether this will happen is simply unknowable. But
whatever success tech firms enjoy, the vast bulk of their revenues will be generated
through sales from outside the region, primarily exports. This is wealth that flows directly
back to the region — in much the same manner that oil exports wash through Edmonton
and Calgary.
The city — indeed the country — remains vulnerable to any reversal in economic growth
globally. Bank of Canada governor Stephen Poloz noted recently that the recession
“delivered a direct, sharp blow to Canadian business” — especially in the export sector,
the only component of the country’s gross domestic product that remains below where it
was when the recession started in 2008. Poloz added that “it was a good thing households
had the capacity to expand their spending” to make up for the collapse in business
investment and exports. His point was that because Canadians had earlier been prudent,
they had room in their budgets to accommodate extra borrowing — and that this saved
the economy. The downside, of course, is that Canadians are carrying near-record high
debt as a percentage of income. This ratio peaked at 25 per cent of income in 2009
according to TD Economics, and has since receded to just below 24 per cent.
“Canadian households remain highly leveraged,” wrote TD economist Leslie Preston,
“and it will take quite some time for measures of leverage to return to historical norms.”
The amount of debt on Canadians’ personal books isn’t necessarily a problem if interest
rates increase gradually and the global economic recovery continues, especially in the
U.S. A survey of economists by the Economist Magazine suggests U.S. GDP this year
will grow 1.6 per cent, about the same as Canada, and accelerate to 2.7 per cent next year
(versus 2.3 per cent for Canada).
As for how quickly, or even if, interest rates rise, so much depends on the ability of
central banks to unwind trillions of dollars in risky financial debt accumulated since the
beginning of the recession. Some financial analysts, such as Harry Dent, author of The
Great Crash Ahead, are convinced that the bursting of the debt bubble will produce an era
of deflation and another stock market crash. Eric Sprott — the principal of Sprott Asset
Management — has an equally dim view of central bankers’ strategies but believes the
end result will be debilitating inflation, with only precious metals such as gold and silver
holding their value. Assuming the central bankers do get it right — that is, they preside
over a gradual reduction of debt and an increase in economic growth, the consensus is
that we’ll get through this, albeit slowly.
There is, in fact, no precedent for what we’re about to witness. In this environment, a city
economy such as Ottawa-Gatineau is not a bad place to be. Nor is it a bad thing to lose
our status as Fat City — there’s enough resentment of Ottawa in the rest of the country as
it is. Canada’s headquarters for administration shouldn’t rub it in.
--------------------------------------------
Harper government says bureaucrats cut
organized crime unit at Canada Revenue
Agency
By Mike De Souza, Postmedia, October 1, 2013
OTTAWA — The Harper government says bureaucrats are responsible for making a
decision to eliminate a special unit at the Canada Revenue Agency tasked with cracking
down on organized crime.
National Revenue Minister Kerry-Lynne Findlay defended the decision Tuesday,
explaining that she believed officials at the agency wanted to improve efficiency.
“Their reasons would be their own but certainly I believe it’s for efficiency reasons,” said
Findlay, after promoting previously-announced federal tax incentives at a residence for
seniors in an Ottawa suburb.
“In terms of the agency itself, they made their internal decision. That decision was taken
before I became minister and my expectation (is to have) a robust system that continues
to go after those who evade tax and those who are involved in aggressive tax planning
that is inappropriate. And as long as that system remains robust, I’m confident we can
move forward.”
Findlay, who was appointed as revenue minister by Prime Minister Stephen Harper in
July, also defended $8 million in new spending at the agency from the 2012 federal
budget to crack down on charities. The measures have been promoted by ministers in the
Harper government as an attempt to investigate political activity by environmental
organizations.
But despite the new spending, only one charity, Physicians for Global Survival, saw its
charitable status revoked for exceeding requirements that prohibit a charity from
spending more than 10 per cent of its budget on political activities to advocate for a
cause.
“As far as numbers, it isn’t about numbers,” said Findlay. “It’s about who’s complying
and who isn’t and again, I expect and anticipate a robust system for looking at charitable
organizations as far as their political activities are concerned.”
A spokesman for the agency also said it was “too early” to evaluate results of the new
spending, in terms of sanctions leveled against charities, since it was still in its “early
stages.” But he explained that the money was used to create some new reporting and
compliance rules for charities as well as websites and “educational activities.”
Meantime, the elimination of the agency’s Special Enforcement Unit, established in the
1980s to fight organized crime, was highlighted in a Radio-Canada investigation that
featured former federal auditors who criticized the cuts and alleged that the agency was
infiltrated by criminal organizations. The television network’s investigative show,
Enquête, reported that the dismantled special unit worked closely with police and was
involved in several high-profile raids and dozens of arrests in recent years.
The report interviewed an auditor from the unit who said he was forced to knock on the
door of a reputed figure connected with organized crime in Montreal, Nicolo Rizzuto, to
retrieve a September 2007 cheque from the agency for about $400,000 that was
apparently sent in error.
The commissioner of the agency, Andrew Treusch, said in a statement last week that it
had launched an internal investigation into the incident. Treusch said that he had not been
advised of any criminal wrongdoing in his initial inquiries into the transaction.
The agency, which has also recently announced plans to crack down on Canadians who
hide money in overseas tax havens, has predicted a reduction in its workforce of about
3,000 employees over the next three years, down from an estimated 41,144 in full-time
equivalent workers in 2012-13.
The agency offered a general explanation about its decision to eliminate the unit and
transfer its roles over to a general branch responsible for compliance and enforcement
programs, but was unable to immediately provide the detailed justification for the
changes.
Dennis Howlett, executive director of an advocacy group called Canadians for Tax
Fairness, said that some cuts were justified as the agency moves to accept and process
more online tax reforms by computers, but not at the levels announced by the department.
He also suggested that investments to increase audits of charities were introduced for the
wrong reasons.
“Most of that, I think, was politically motivated, to go after environmental groups
because of their opposition to pipelines,” said Howlett. “Many charities and international
development agencies and so on are put in an untenable situation of not really being able
to fulfill their purpose if they’re prevented from speaking out politically about some of
these issues.”
------------------------------------------------------
Arbitration protected by Charter, appeal court
rules, but union challenge to government
rollback of arbitrated increase rejected
Lancaster House, September 30, 2013
The British Columbia Court of Appeal upheld a lower court judge's decision that the
federal government did not infringe the freedom of association guarantee in s.2(d) of the
Canadian Charter of Rights and Freedoms, which protects the right to collectively
bargain, when it passed the federal Expenditure Restraint Act (ERA), capping annual
wage increases for federal public service employees over five years (2006-2011).
In the Court's view, the government's nullification of a retroactive 5.2 percent wage
increase that had been awarded at arbitration to workers employed in naval dockyards on
the West Coast was not so serious as to constitute a substantial interference with the
constitutionally protected right to collectively bargain.
However, while it did not affect the outcome, the Court of Appeal rejected the trial
judge's ruling that rolling back an arbitration award is not interference with collective
bargaining because a wage increase imposed by arbitration is not the result of collective
bargaining, but rather the result of a failure of collective bargaining.
The Court held, instead, that "significant interference with an arbitration award is
necessarily of the same practical character as significant interference with a negotiated
agreement."
The Facts:
In late 2006 and early 2007, the Federal Government Dockyards Trade and Labour
Council and the federal Treasury Board negotiated a new contract for federal government
employees working in naval dockyards on the West Coast to replace the agreement that
expired in 2006.
In April 2007, the Treasury Board presented a "final offer" to the union bargaining team
that called for economic increases of 2.5 percent in 2006 and 2 percent in each of 2007
and 2008. Because this was the employer's final offer, the union felt obliged to put a
"tentative agreement," consisting of the agreed-upon items for a new collective
agreement and the employer's final proposal on wages, before the membership for a vote.
In that vote, held during the week of April 30, 2007, the membership rejected the
"tentative agreement" by 89 percent.
The Council representing the workers decided shortly after this vote that, although the
employer indicated a willingness to negotiate further, continued collective bargaining
was a less attractive option than arbitration, a process it was entitled to invoke as an
alternative to conciliation/strike under the federal Public Service Labour Relations Act.
However, the formal request for arbitration was not made until March 25, 2008.
Following preliminary motions by both sides, the arbitration began on December 13,
2008.
In a January 20, 2009 award, 2009 CanLII 1668 (PSSRB), the arbitrator awarded an
initial 5.2 percent pay adjustment as of October 1, 2006, followed by annual percentage
increases of 2.5, 2.3, 1.5 and 1.5 (annualized) over the course of a four-year collective
agreement, running from October 1, 2006 to January 30, 2010.
Meanwhile, however, by the fall of 2008 it had become clear that the Canadian economy
was caught in the global economic crisis, with unemployment rising rapidly and public
finances deteriorating. In a November 27, 2008 Economic and Fiscal Statement, Federal
Finance Minister Jim Flaherty announced that legislation would be introduced to impose
specific wage increase limits on federal public service employees; employees of separate
agencies and Crown Corporations; and Members of Parliament, Senators, Cabinet
Ministers and GIC appointees. The Minister emphasized the importance of exercising
spending restraint in response to the financial crisis to ensure that, as the economy
slowed, public service pay did not exceed what could be afforded.
Federal wage restraint legislation, the Expenditure Restraint Act (ERA), was introduced
in early 2009 and received Royal Assent on March 12, 2009. It set wage increase limits
of 2.5 percent for the 2006-2007 fiscal year, 2.3 percent for 2007-2008, and 1.5 percent
for each of the three years from 2008-2009 to 2010-2011. It also provided that, in the
case of collective agreements that were entered into or arbitral awards that were made
before December 8, 2008, the wage increase limits did not apply for the 2006-2007 and
2007-2008 fiscal years.
Relying on the decision of the Supreme Court of Canada in Health Services and Support
– Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27 (CanLII),
reported in Lancaster's Human Rights and Workplace Privacy, August 16, 2007, eAlert
No. 90, the Dockworkers' Council initiated an action in the British Columbia Supreme
Court seeking a declaration that the ERA provisions rescinding their 2006 wage increase
of 5.2 percent were unconstitutional as an infringement of employees' collective
bargaining rights under s.2(d) of the Canadian Charter of Rights and Freedoms.
Case History:
In a September 8, 2011 decision, 2011 BCSC 1210, reported in Lancaster's Human
Rights and Workplace Privacy, November 29, 2011, eAlert No. 173, British Columbia
Supreme Court Judge David Harris dismissed the action, ruling that "[o]n my reading of
both Fraser and B.C. Health Services, terms imposed on the parties by a third party and
thereby included in a collective agreement are not the outcome of the exercise of a
constitutionally protected process of collective bargaining; rather, they are the outcome of
the failure of that process or a substitute for it."
However, in case he was wrong on the effect of arbitration, the judge went on to consider
whether, if arbitration is part of the constitutionally protected process of collective
bargaining, nullification of the wage increase infringed s.2(d) of the Charter.
Harris concluded that, while the nullification of the wage increase was a substantial
interference with freedom of association, because the government's efforts to negotiate
fulfilled its obligation to consult and bargain in good faith, the Act did not breach s.2(d)
of the Charter and was in any event saved by s.1 of the Charter, which allows reasonable
limits on fundamental Charter rights that are demonstrably justified in a free and
democratic society. In this regard, addressing the second component of the Oakes test,
Harris concluded that the deleterious impact of the legislation did not outweigh its
salutary effects, stating:
While I accept that the right to bargain collectively is importantly related to values of
self-determination, human dignity, equality and democracy, I do not accept that the
limited and temporary restraint measure imposed through the ERA has any significant
effect on those values. Indeed, had the government failed to respond to the economic
crisis or had an economic collapse occurred, the effect on those very values throughout
society as a whole may well have been more profound and vastly more deleterious.
The Council appealed this decision to the British Columbia Court of Appeal.
The Decision:
The British Columbia Court of Appeal dismissed the appeal, ruling that "the Council has
not established that the Act infringes freedom of association, guaranteed by s.2(d) of the
Charter."
Writing the unanimous decision of a three-member panel of the Court, Justice Mary
Saunders accepted the Council's contention that the judge erred in giving an overly
narrow meaning to the term 'collective bargaining,' which is referred to in the
jurisprudence as a constitutionally protected process, stating: "[O]n a robust view of
collective bargaining, one cannot draw the line between a term awarded by this
Arbitration Board and a term settled at the bargaining table." Saunders elaborated: "I do
not accept the judge's narrow view of 'collective bargaining.' I consider that a pragmatic
view of collective bargaining is not susceptible to hiving the procedure for settlement of
collective agreements into discreet, air-tight compartments. Doing so, in my view, risks
both further complication and unforeseen consequences in the vital exercise of labour
dispute resolution."
Saunders reasoned, consequently, that "[i]t seems to me that significant interference with
an arbitration award is necessarily of the same practical character as significant
interference with a negotiated agreement; to the extent interference with an arbitration
award is an interference with the process set out in the legislation for the settlement of
collective agreements by the bargaining agent, it is interference with the process of
collective bargaining. I would not draw a line between the arbitration and the bargaining
in the process leading to a collective agreement. … While Fraser clearly rejects the view
that a union or employees are entitled to a particular model of labour relations, that is not
the Council's proposition. The Council does not say that it and its member unions are
entitled to a particular model or dispute resolution process. Rather, it says that the process
of this arbitration, already built into the labour legislation and chosen here as the end
game to collective bargaining even before negotiations started, became part of the
collective bargaining process. … [T]he subtleties of modern negotiation, practiced by
experienced parties, does not admit the distinction between a collective agreement
achieved by arbitration and one achieved solely by collective inter-party bargaining…."
Nevertheless, this reasoning did not cause Saunders to disagree with the ultimate
outcome of the lower court decision, albeit for a different reason. She held that "[m]y
conclusion that the arbitration source of the nullified term is of no import to the question
of a s.2(d) breach in this case, does not mean, however, that the Act infringes s.2(d)."
Declaring that the judge below erred in finding that s.2(d) protects the 5.2 percent wage
lift for 2006-2007 achieved by the Council, Saunders stated: "The question is whether the
Act can reasonably be seen as impermissibly preventing the protected associational
activity. With respect, I do not see this issue the same way as did the judge; I do not see
the term in issue of such weight, and the Act's treatment of the subject of the wage
increase so draconian, as to substantially interfere with the protected process and render
the Act a breach of s.2(d), if it interferes at all."
Emphasizing that only "substantial interference" with collective bargaining is restricted
by s.2(d), Justice Saunders referred to two cases which found that there was no
substantial interference because in the first case there was no prohibition on future
associational activity on the scale considered in B.C. Health Services, and in the second
case the impact on the process of collective bargaining was not substantial. See Canada
(Attorney General) v. Meredith, 2013 FCA 112 (CanLII), reported in Lancaster's Human
Rights and Workplace Privacy, June 26, 2013, eAlert No. 208, and Association of Justice
Counsel v. Canada (Attorney General), 2012 ONCA 530 (CanLII), reviewed in
Lancaster's Human Rights and Workplace Privacy, September 28, 2012, eAlert No. 189.
She concluded:
Adopting the question as framed in Association of Justice Counsel and Meredith, it seems
to me that Health Services is explained by the invasive extent of the nullification of
collective agreement terms, combined with the exclusion of the topics of the nullified
terms as subjects for collective bargaining so long as the Act remained in force. The Act
in this case lacks that breadth. Although there has been cancellation of one wage increase,
and wage increases are set for five years (a provision that is not challenged by the
Council), there is no restriction on bargaining after that time. The prospective
interference with collective bargaining evident in Health Services is simply not present
here.
Saunders reasoned that "[t]he 5.2% wage increase in issue is certainly valuable to the
employees represented by the Council. Its nullification, however, in my view, is not
antithetical to associational activity. The term is not so essential to the structure of the
collective agreement, nor future restrictions on bargaining so durable, that its loss can be
said to evidence impermissible interference with the protected process. It bears observing
that this single foregone wage increase is an economic circumstance that may be
discussed in future rounds of collective bargaining, along with other economic issues.
Employment relations have about them an essential, pragmatic, dynamic, business aspect
that precludes, in my respectful view, a single, time-limited wage increase from rising to
such significance that its loss amounts to breach of the constitution of Canada."
In the result, Justice Saunders, on behalf of the Court, dismissed the appeal, ruling that
"the Act does not substantially interfere with associational activity or the collective
bargaining process so as to infringe freedom of association as contended by the Council,
if there is an interference at all." Given its ruling on s.2(d), the Court saw no need to
address s.1 of the Charter.
Comment:
The B.C. Court of Appeal's ruling that interest arbitration enjoys the same protection
under s.2(d) of the Charter as collective bargaining echoes the view expressed by
Arbitrator Kevin Burkett, one of Canada's most respected labour relations neutrals, in an
interest award issued two months before which dealt with a contract renewal dispute
involving the City of Toronto and the Toronto Professional Firefighters Association.
Burkett stated:
Where the legislature, in its wisdom, decides that in the interest of the greater public good
the right to free collective bargaining must be restricted to the extent that economic
sanctions are not permitted, i.e. police, fire and health services, the alternative must be
fair, impartial and transparent. This is why statutory criteria, as found in the various
interest arbitration statutes, including the Fire Protection and Prevention Act, do not
remove the ultimate discretion of a board of interest arbitration to make a fair and
impartial award that takes into account all relevant considerations.
If there is any doubt in this regard, reference need only be had to the judgments of the
Supreme Court of Canada in re: B.C. Health Services, [2007 SCC 27 (CanLII)] and
CUPE v. Ontario (Minister of Labour), [2003 SCC 29 (CanLII)]. In the former, the
British Columbia government passed legislation overriding certain collective agreement
provisions applicable to employees in the health care sector. In reversing a number of its
prior decisions, the Supreme Court found that Section 2(d) of the Charter guarantees a
right to collective bargaining as part of freedom of association. Although the Court
emphasized that the right is to a process and does not guarantee access to a particular
statutory framework or to a particular result, the Court did find that "substantial
interference" with collective bargaining will violate the Charter.
It would be difficult to conclude that statutory interest arbitration parameters that robbed
an impartial interest arbitrator of his/her essential discretion by, in effect, prescribing a
particular result or even by narrowing the range within which a fair and reasonable result
might otherwise fall would not run afoul of B.C. Health. After all, just as there can be no
"substantial interference" with the right to free collective bargaining, there can be no
"substantial interference" with free, fair and impartial interest arbitration where it is
legislatively substituted for free collective bargaining.
The Court of Appeal's view of arbitration in fact accords with international labour law. In
this regard, the ILO's Freedom of Association Committee has ruled that, under
Convention 87 on Freedom of Association, interest arbitration may be substituted for the
right to strike in essential services, strictly construed, provided the interest arbitration
process is impartial, independent, speedy, and binding. See Jean Michel Servais, "ILO
Law and the Right to Strike," (2009-10) 15 Canadian Labour and Employment Law
Journal 147 at 161; and in the same Journal issue, Brian Etherington, "Does Freedom of
Association under the Charter include the Right to Strike after B.C. Health?" at page 315
at 329-330.
As to whether a nullification of a 5.2 percent wage increase constitutes a "substantial
interference" with collective bargaining – or, in this case, arbitration – Professor Jamie
Cameron of Osgoode Law School has written that, "[w]hen the state prohibits the
exercise of s.2 freedoms, it does not matter whether the interference is substantial or not,
because the infringement per se violates the Charter." See Jamie Cameron, "The Labour
Trilogy's Last Rites," (2009-10) 15 Canadian Labour and Employment Law Journal 297
at 310 and 312.
If this argument does not prevail, the Supreme Court will have to determine whether
nullification of a 5.2 percent wage increase constituted "substantial interference" with a
matter that is important to collective bargaining. In this regard, the B.C. Court of Appeal
thought it did not, and purported to distinguish B.C. Health Services on the ground that
the legislation in that case invalidated not only existing but also future collective
agreement provisions (dealing with contracting out), whereas the wage cut in the instant
case was a one-time event; however, this is not the case, since the 5.2 percent wage cut,
which accounted for almost half of the total arbitrated increase over four years, would
have a lasting impact, since it would reduce employees' wages from year to year.
Moreover, in the B.C Health case, the Supreme Court also disapproved of legislative
provisions which only temporarily invalidated other contractual provisions (protecting
employees on layoff and bumping). Indeed, it is noteworthy that the examples given by
the Supreme Court in B.C. Health of less important matters, which would not engage the
Charter, involved "the design of uniform[s], the layout and organization of cafeterias, or
the location or availability of parking lots."
The final word, however, will rest with the Supreme Court of Canada, which laid down
the test for "substantial interference" in the B.C. Health Services case, and to which, it is
understood, the case is under appeal.
---------------------------------
Plus de 500 000 personnes supplémentaires admissibles à
l'aide juridique gratuite - Le ministre de la Justice annonce un
rehaussement historique des seuils d'admissibilité à l'aide
juridique
QUÉBEC, le 4 oct. 2013 /CNW Telbec/ - Le ministre de la Justice et Procureur général
du Québec, monsieur Bertrand St-Arnaud, annonce aujourd'hui une hausse historique des
seuils d'admissibilité à l'aide juridique, laquelle donnera notamment l'accès à l'aide
juridique gratuite aux personnes travaillant à temps plein au salaire minimum. Cette
hausse permettra aussi d'offrir, dès le 1er janvier prochain, une couverture gratuite aux
personnes âgées vivant seules et bénéficiant majoritairement du supplément de revenu
garanti.
L'annonce a été faite à l'Assemblée nationale en présence de la bâtonnière du Québec,
maître Johanne Brodeur, Ad. E., et du président de la Commission des services
juridiques, maître Denis Roy.
« Cette bonification substantielle du régime québécois d'aide juridique est au cœur des
engagements du gouvernement du Québec pour une justice plus accessible, une justice
pour tous. Avec ce rehaussement historique des seuils d'admissibilité à l'aide juridique, ce
sont plus de 500 000 personnes supplémentaires qui auront bientôt accès au volet gratuit
de ce régime », a déclaré le ministre de la Justice.
Une hausse des seuils attendue
Avec cette hausse substantielle, le gouvernement du Québec répond aux
recommandations formulées au fil des ans dans de nombreux rapports, et aux
préoccupations exprimées depuis des décennies par la magistrature, le Barreau du Québec
et plusieurs groupes issus du milieu communautaire.
« Depuis près de 30 ans, une personne travaillant à temps plein au salaire minimum n'est
pas admissible à l'aide juridique gratuite. Cela est inacceptable et contraire à l'esprit du
programme d'aide juridique instauré en 1973. C'est aussi un frein considérable à l'accès
de nos concitoyens à la justice. Nous nous étions engagés à ce que cela change, et cela
changera », a ajouté le ministre de la Justice.
Des hausses de plus de 30 % du seuil d'admissibilité pour le volet gratuit
Le nouveau règlement qui sera publié à la Gazette officielle du Québec la semaine
prochaine entraînera, sur une période d'un an et demi, une hausse de plus de 30 % des
seuils d'admissibilité à l'aide juridique gratuite pour une personne seule. Ce seuil passera
d'abord de 14 140 $ actuellement à 16 306 $ le 1er janvier 2014 - 15,3 % d'augmentation avant d'être fixé le 1er juin 2015 au montant correspondant au revenu annuel d'une
personne travaillant alors au salaire minimum à raison de 35 heures par semaine.
Pour un couple avec deux enfants, les seuils du volet gratuit passeront de 23 184 $
actuellement à 26 737 $ au 1er janvier 2014, puis à plus de 30 000 $ au 1er juin 2015.
Les coûts de cette bonification sont évalués, à terme, à près de 17 millions de dollars par
année. Ils pourront fluctuer en fonction des demandes réellement acceptées.
Une solution définitive
De plus, élément important, le seuil d'admissibilité à l'aide juridique sera dorénavant
automatiquement rajusté en fonction du salaire minimum, assurant ainsi le maintien de
façon définitive de l'accessibilité à l'aide juridique.
Une justice pour tous
Rappelons que l'aide juridique vise les services prévus à la Loi sur l'aide juridique et sur
la prestation de certains autres services juridiques. Notamment, elle peut être accordée
pour des affaires qui relèvent du droit civil, familial, administratif, criminel, de la santé
mentale, de l'immigration et de la jeunesse.
« Le gouvernement du Québec se fait un point d'honneur d'administrer la justice avec
intégrité, équité et humanité. Aujourd'hui, je suis fier de dire que notre système de justice
sera dorénavant encore plus humain, encore plus solidaire », a conclu le ministre de la
Justice.
Rehaussement du seuil d'admissibilité à l'aide juridique, volet
gratuit, au niveau du salaire minimum, au 1er janvier 2014 et
au 1er juin 2015
Volet gratuit
%
%
d'augmentati d'augmentati
on
on
en janvier
en juin 2015
2014
par
par rapport à
rapport à
juin 2013
juin 2013
Catégorie
Seuils
en
Seuils janvi
actuel
er
s
2014
Personne
seule
14
16
140 $ 306 $ 19 202 $
15,3 %
35,8 %
Famille
monoparent
ale avec un
enfant
17
19
298 $ 948 $ 23 491 $
15,3 %
35,8 %
Famille
monoparent
ale avec
18
21
deux enfants 467 $ 296 $ 25 078 $
15,3 %
35,8 %
Couple sans
15,3 %
35,8 %
19
22
Seuils
en
juin
20151
26 721 $
enfant
676 $ 691 $
Couple avec
un enfant
22
25
015 $ 389 $ 29 897 $
15,3 %
35,8 %
Couple avec
23
26
deux enfants 184 $ 737 $ 31 485 $
15,3 %
35,8 %
______________________________
1
Hypothèse : hausse du salaire minimum de 2 % au 1er mai 2014 et
de 2 % au 1er mai 2015