44th Parl. 1st Sess.
June 16, 2022 10:00AM
- Jun/16/22 10:30:51 a.m.
- Watch
- Re: Bill C-9
Madam Speaker, I am pleased to rise to Bill C-9, an act to amend the Judges Act. I want to acknowledge that I am speaking today on the traditional unceded lands of the Algonquin people.
As lawmakers, it is our cherished responsibility to see to the good stewardship of our justice system. It is also our responsibility to ensure that traditional independence, a principle that lies at the heart of that system, is safeguarded and preserved. These responsibilities go hand in hand. An independent court system, in which every Canadian has confidence that their rights will be protected and that the laws of our country will be enforced with honour and integrity, is the lifeblood of our constitutional democracy. Public confidence in the courts is essential to public confidence in the rule of law, and public confidence depends not only on the status and strength of our courts as institutions but on the integrity of the judges who occupy them.
I rise today to address a matter that engages this responsibility directly: the reform of Canada's system for investigating allegations of misconduct against federally appointed judges. It is tempting to take these observations for granted, but the reality is that they are the product of sustained vigilance and effort. Our institutions are strong because we take care to respect and nourish them. Our judiciary is strong because its members strive continuously to better serve Canadians and hold themselves to the most stringent standards of integrity, impartiality and professionalism.
Canada's superior court judiciary, which includes the judges of the Federal Court and Supreme Court of Canada as well the judges of all provincial and territorial superior courts, enjoys an unparalleled reputation for excellence. Allegations of misconduct against members of the federal judiciary are rare, and allegations so serious that removal from judicial office may be warranted are rarer still. Nevertheless, an effective process for reviewing those few allegations that arise constitutes an integral part of our justice system and helps to secure a cornerstore of the rule of law, which is public confidence in the integrity of justice.
According to our constitutional separation of powers, the judiciary itself must play a leading role in safeguarding the integrity of its members. Since 1971, the Judges Act has empowered its members, the chief justices and associate chief justices of Canada's superior courts, acting through the Canadian Judicial Council, or CJC, to receive and investigate complaints regarding the conduct of superior court judges and to report their findings and recommendations to the Minister of Justice. Only then does it fall to the minister to decide whether to seek removal of a judge. It is a decision that requires ratification by Parliament and an address to the Governor General under section 99(1) of the Constitution Act, 1867.
This power is tempered by the constitutional principle of judicial independence, and the security of tenure it affords to every superior court judge in the absence of their proven incapacity or misconduct.
Recently, the gap between these broader changes and the conduct process prescribed under the Judges Act has grown acute, bringing into jeopardy the public confidence that this process is meant to secure. Allowing the judiciary to regulate the conduct of their own members in this manner is entirely appropriate. It rightly safeguards the courts against interference by the political branches, ensuring that judges can protect the Constitution and the rights of Canadians without fear of reprisal.
While Canadians can thus have confidence in judicial leadership and control over investigations into judicial conduct, the legislative framework that enables this leadership has remained unchanged since 1971. This is despite vast changes to the legal and social landscapes in which the framework must operate.
The most serious judicial conduct cases, and those that attract the greatest public attention through the inquiry committee process, are notoriously long and costly, and are beset with parallel court challenges that take years to resolve. One of these is the length and cost of judicial conduct proceedings. As federal administrative tribunals, inquiry committees constituted by the CJC are reviewable first in the Federal Court, then by the Federal Court of Appeal and then possibly the Supreme Court of Canada.
This gives a judge who is subject to the process an opportunity to initiate as many as three stages of judicial review. This was seen recently in the case of former Justice Girouard.
Because the Judges Act lacks alternatives to full-scale divisional inquiries, all cases that raise valid concerns regardless of their gravity are forced into a procedurally complex, public and adversarial inquiry mechanism. At the conclusion of that mechanism, rather than allowing an inquiry committee to report directly to the minister, the Judges Act requires that a report and recommendation be submitted by the CJC as a whole.
The fact that judicial independence warrants the provision of publicly funded counsel to a judge has meant that in some cases, lawyers have collected millions of dollars in fees for launching exhaustive legal challenges that are ultimately proven to be without merit. The public is rightly outraged by this lack of efficiency and accountability in a process carried out in its name. The situation demands correction.
In other words, a body of at least 17 chief justices and associate chief justices from across Canada who have not had any direct involvement in the scrutiny of a given case must review the work of an inquiry committee and decide whether or not to recommend a judge's removal to the minister. This process is burdensome, inefficient and costly. Rather than having confidence that concerns about judicial conduct will receive a fair and effective resolution, Canadians see this process as duplicating features of procedural complexity and the adversarial model that can be so alienating in the justice system at large.
Another shortcoming of the current process is that the Judges Act empowers the CJC only to recommend for or against the removal of a judge. There are no lesser sanctions available. As a result, instances of misconduct may fail to be sanctioned because they do not warrant removal. There is also a risk that judges may be exposed to full-scale inquiry proceedings and to the stigma of having their removal publicly considered for conduct that is more sensibly addressed by alternative procedures and lesser sanctions.
The bill before us would thus comprehensively reform and modernize the judicial conduct process while honouring a fundamental commitment to fairness, independence and procedural rigour. Allow me to offer a brief summary emphasizing the objectives that the bill is intended to achieve.
First and foremost, the bill would streamline the judicial conduct process. It would replace the current availability of judicial review with an efficient internal appeal mechanism for judges whose conduct has been found lacking by a hearing or a review panel. In other words, rather than allowing judges to step outside the process and launch multiple court challenges that can interrupt and delay proceedings for years, the reformed process would include its own internal system of review to ensure the fairness and integrity of any findings made against a judge.
At the conclusion of the hearings process and before the report on removal is issued to the minister, both the judge whose conduct is being examined and the lawyer responsible for presenting the case against them would be entitled to appeal the outcome to an appeal panel. Rather than making CJC hearings subject to external review by multiple levels of court with the resulting costs and delays, the new process would include a fair, efficient and coherent appeal mechanism internal to the process itself.
A five-judge appeal panel would hold public hearings akin to those of an appellate court and have all the powers it needs to effectively address any shortcomings in the hearing panel's process. Once it has reached a decision, the only remaining recourse available to the judge and to presenting counsel would be to seek leave to appeal to the Supreme Court of Canada. Entrusting process oversight to the Supreme Court would reinforce public confidence and avoid lengthy judicial review proceedings through several levels of court.
These steps on appeal would be governed by strict deadlines, and any outcomes reached would form part of the report and the recommendations ultimately made to the Minister of Justice. In addition to giving confidence in the integrity of judicial conduct proceedings, these reforms are expected to reduce the length of proceedings by a matter of years.
This would avoid situations we have seen in the past where repeated appeals to the Federal Court have drawn the process out to obscene lengths.
The new process would also provide opportunities for early resolution of conduct complaints, avoiding the need in many instances to resort to adversarial public hearings. Rather than treating all cases as though they might warrant judicial removal, the CJC would be empowered to impose alternate remedies that were proportionate to the conduct at issue and better tailored to the public interest. The public at large would be better represented in these proceedings with the bill codifying a place for public representatives in the review of complaint processes.
For example, it may require a judge to take a continuing education course or apologize for the harm caused by their misconduct.
As far as conduct that warrants judicial removal is concerned, the bill requires that robust public hearings be held. The bill includes a role that will allow the presenting counsel to act as a public prosecutor in presenting a case against a judge. What is more, the judge will have ample opportunity to provide responses and present a defence with the assistance of their own lawyer.
If the hearing panel recommends the judge's removal, those recommendations will be sent to the Minister of Justice subject only to the disposition of the appeal. It will not be necessary for the entire Canadian Judicial Council to take part in the process.
These steps alone would render the judicial conduct process more flexible, timely and efficient without compromising fairness or investigative rigour. In doing so, it would also render the process less costly, more accessible and more accountable to Canadians.
Beyond mere process reforms, the bill would introduce a stable funding mechanism to support the CJC's role in investigating judicial conduct and one appropriate to the constitutionally imperative nature of this duty. It would also add safeguards requiring that the responsible officials establish guidelines consistent with government-wide standards for the administration of public funds, that the administration of those funds be subject to regular audits, and that the results of those audits be made available in public reports. This combination of financial accountability and transparency is critical in ensuring public confidence in the judicial conduct process, and it is overdue.
The provisions established in the appropriation clearly limit the categories of expenses it captures to those required to hold public hearings. Moreover, these would be subject to regulations made by the Governor in Council. Planned regulations include limiting how much lawyers involved in the process can bill, and limiting judges who are subject to proceedings to one principal lawyer. The bill also would require that the Commissioner for Federal Judicial Affairs make guidelines affixing or providing for the determination of any fees, allowances and expenses that may be reimbursed and that are not specifically addressed by the regulations. These guidelines must be consistent with any Treasury Board directives pertaining to similar costs, and any difference must be publicly justified.
Finally, the bill would require that a mandatory independent review be completed every five years into all costs paid through the statutory appropriation. The independent reviewer would report to the Minister of Justice, the Commissioner and the chair of the CJC. The report would assess the efficacy of all applicable policies establishing financial controls and would be made public. Taken together, these measures would bring a new level of fiscal accountability to judicial conduct costs, while replacing the cumbersome and ad hoc funding approach currently in place.
All of these reforms were informed by an extensive process of public consultation. In addition to hearing from Canadians, academic experts and members of the legal profession, the government has had a sustained engagement with two judicial organizations in particular: the CJC and the Canadian Superior Courts Judges Association.
The government is deeply grateful for the commitment of these organizations to supporting reform and sharing their perspectives and expertise in a spirit of respectful collaboration with officials from the Department of Justice Canada. I know that passage of these reforms is of the highest priority to judicial leaders, and the government is committed to answering their rightful requests for legislation that would support them in fulfilling their critical role.
I will conclude simply by recommending to my colleagues that we seize the opportunity to renew an institution that is vital to the trust that Canadians place in their justice system. I am convinced that Canada has the strongest justice system in the world, in no small part because we have the most exceptional and committed judiciary in the world. That reality is not inevitable, but it is the result of our sustained commitment and effort to keeping our institutions healthy and keeping our judiciary independent and strong.
Let us renew these commitments again with the passage of this legislation. I look forward to our deliberation and debate.
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- Jun/16/22 10:49:39 a.m.
- Watch
- Re: Bill C-9
Madam Speaker, I fully agree with my colleague. We have heard from the Canadian Judicial Council about the delays, and we have heard the frustration from the public about the delays. One of the things this bill tries to do is streamline the process, make it more efficient and make it more cost-effective to ensure justice is served in a timely manner.
We have an incredible justice system and incredible judiciary, but for the odd time when there is a lapse, it is important to have continued public confidence in our system. We are grateful for the support of my friend opposite.
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- Jun/16/22 10:57:22 a.m.
- Watch
- Re: Bill C-9
Madam Speaker, as we approach the final sitting days of the House before it rises, this is likely my last opportunity to speak before we all return to our ridings for the summer months. In light of this, I would like to start off my remarks today by acknowledging the great people of my riding of Fundy Royal, whom I am honoured to represent here in this 44th Parliament.
On the topic at hand, we are here today to discuss Bill C-9, an act to amend the Judges Act. I will begin by going over a bit of a summary of the bill.
The legislation would amend the Judges Act to replace the process through which the conduct of federally appointed judges is reviewed by the Canadian Judicial Council. It would establish a new process for reviewing allegations of misconduct that are not serious enough to warrant a judge’s removal from office and would make changes to the process by which recommendations regarding removal from office can be made to the Minister of Justice. As with the provisions it replaces, this new process would also apply to persons, other than judges, who are appointed under an act of Parliament to hold office during good behaviour.
In short, the objective of the legislation is to update the Judges Act to strengthen the judicial complaints process. The existing process was established in 1971, so it is due for a refresh. We can all agree that strengthening and increasing confidence in the judicial system, and taking action to better respond to complaints that it may receive from Canadians, are good things. Canadians are really depending on this Parliament to strengthen our judicial system.
As it stands, the judicial system in Canada has been weakened by COVID delays and a lack of resources for victims in particular, like, as I have mentioned, the vacant victims ombudsman position. There really is no excuse today for that when we see so many stories ripped from the headlines that impact Canadian victims. We also see legislation like the bill the parliamentary secretary just mentioned, Bill C-5. The victims we have talked to, whom we have seen and heard from at committee, are concerned about that bill and its predecessor bill, Bill C-22. The victims ombudsman had a lot to say about it.
I would love the benefit of hearing from a victims ombudsman, except we do not have one. We were supposed to have that position filled back in October, so for many, many months it has been vacant. That is completely unacceptable, not only for victims and their families but also for all Canadians. I should note that when the position of the federal ombudsman for federal offenders in our federal prison system became vacant, it was filled the next day. We can see where the government's priorities are.
Bill C-9 was originally introduced in the Senate as Bill S-5 on May 25, 2021. The previous version of the bill did not complete second reading. We heard commentary across the way about delays, with some asking why we are talking about delays. Why was that bill not passed? Well, the Prime Minister called his snap pandemic election in August 2021. That is what happened with that version of the bill.
The bill was reintroduced in the Senate last year as Bill S-3, but the government had an apparent change of heart, dropping Bill S-3 from the Senate Order Paper in December of 2021 and introducing that bill in the House of Commons as Bill C-9. That is where it has languished for months until today, just days before we go into our summer recess.
The bill would modify the existing judicial review process by establishing a process for complaints serious enough to warrant removal from office, and another process for offences that would warrant sanctions other than removal, such as counselling, continuing education and reprimands. Currently, if misconduct is less serious, a single member of the Canadian Judicial Council who conducts the initial review may negotiate with a judge for an appropriate remedy.
It may be helpful at this point to provide a bit of background on the Canadian Judicial Council, what it does and who its members are.
Established by Parliament in 1971, the Canadian Judicial Council is mandated to “promote the efficiency, uniformity, and to improve the quality of judicial services in all superior courts in Canada.” Through this mandate, the Canadian Judicial Council presides over the judicial complaints process.
The Canadian Judicial Council is made up of 41 members and is led by the current Chief Justice of the Supreme Court of Canada, the Right Hon. Richard Wagner, who is chairperson of the council. The membership is made up of chief justices and associate chief justices of the Canadian provincial and federal superior courts. The goal of the members is to improve consistency in the administration of justice before the courts and the quality of services in Canada's superior courts.
Returning back to the bill itself, the reasons a judge could be removed from office are laid out. These include infirmity, misconduct, failure in the due execution of judicial office and “the judge [being] in a position that a reasonable, fairminded and informed observer would consider to be incompatible with the due execution of judicial office.” A screening officer can dismiss complaints should they seem frivolous or improper, rather than referring to them to the review panel. A complaint that alleges sexual harassment or discrimination may not be dismissed. The full screening criteria will be published by the Canadian Judicial Council.
The minister or Attorney General may themselves request the Canadian Judicial Council establish a full hearing panel to determine whether the removal from the office of a superior court judge is justified. The Canadian Judicial Council is to submit a report within three months after the end of each calendar year with respect to the number of complaints received and the actions taken. The intention of this bill, as stated by the government, is to streamline the process for more serious complaints for which removal from the bench could be an outcome.
As I mentioned earlier, these amendments would also address the current shortcomings of the process by imposing mandatory sanctions on a judge when a complaint of misconduct is found to be justified but not to be serious enough to warrant removal from office. Again, such sanctions could include counselling, continuing education and reprimands. In the name of transparency, this legislation would require that the Canadian Judicial Council include the number of complaints received and how they were resolved in its annual public report.
To clarify, the Canadian Judicial Council’s process applies only to federally appointed judges, which are the judges of the Supreme Court of Canada and the federal courts, the provincial and territorial superior trial courts and the provincial and territorial courts of appeal. The provinces and territories are responsible for reviewing the conduct of the judges at the provincial-territorial trial court level, who are also provincially appointed.
Since its inception in 1971, the Canadian Judicial Council has completed inquiries into eight complaints considered serious enough that they could warrant a judge's removal from the bench. Four of them, in fact, did result in recommendations for removal. A ninth inquiry is under way, but has faced delays due to public health restrictions imposed by the Province of Quebec, such as curfew and indoor capacity limits.
Under the proposed new process laid out in Bill C-9, the Canadian Judicial Council would continue to preside over the judicial complaints process, which would start with a three-person review panel deciding to either investigate a complaint of misconduct or, if the complaint is serious enough that it might warrant removal from the bench, refer it to a separate five-person hearing panel. If appropriate, a three-person review panel made up of a Canadian Judicial Council member, a judge and a layperson could impose such sanctions as public apologies or courses of continuing education. If warranted, a five-person hearing panel made up of two Canadian Judicial Council members, a judge, a lawyer and a layperson could, after holding a public hearing, recommend removal from the bench to the Minister of Justice.
Judges who face removal from the bench would have access to an appeal panel made up of three Canadian Judicial Council members and two judges and finally to the Supreme Court of Canada, should the court agree to hear the appeal.
I know that sounded very convoluted and lengthy, but believe it or not, this would actually streamline the current process for court review of council decisions, which currently involves judicial review by two additional levels of court, those being the Federal Court and the Federal Court of Appeal, before a judge can ask the Supreme Court to hear the case.
The amendments would provide for a funding mechanism for the new process. The financial impact of the review process has been raised by a number of stakeholders. I want to encourage the Liberal government to take its fiscal responsibility to taxpayers into consideration with all government policies, but this bill is as good a start as any.
I would like to take a moment to point out that we have the former leader of the Conservative Party to thank for paving the way to having this bill before the House of Commons today. The Hon. Rona Ambrose introduced her private member's bill, Bill C-337, in 2017. This legislation would require the Canadian judiciary to produce a report every year that detailed how many judges had completed training in sexual assault law and how many cases were heard by judges who had not been trained, as well as a description of the courses that were taken. It would also require any lawyer applying for a position in the judiciary to have first completed sexual assault case training and education. Last, it would result in a greater number of written decisions from judges presiding over sexual assault trials, thus providing improved transparency for Canadians seeking justice.
The original premise of Bill C-337 was in response to a complaint about the behaviour a federal judge who was presiding over a case of sexual assault in 2014. The Canadian Judicial Council of which we speak today launched an investigation into the behaviour of that judge. Ultimately, in March 2017, the Canadian Judicial Council sent a letter to the federal Minister of Justice recommending that this judge be removed from the bench, and the minister accepted the recommendation.
The bill before us today works to expedite and facilitate the complaints process so that extreme cases like the one I just referenced can be fully and properly reviewed without causing too much disruption in terms of time, costs and delays in processing smaller but still important complaints.
Earlier this year, the Standing Committee on Justice and Human Rights received correspondence from the Canadian Bar Association stating its support for the legislation as written in Bill C-9. In part, its letter reads as follows:
The CBA commented on the state of the judicial discipline process in its 2014 submission to the Canadian Judicial Council (CJC). On the subject of judicial discipline proceedings, our 16 recommendations were to ensure that the objectives of balancing the independence of the judiciary and the public’s confidence in the administration of justice were respected in the process. The CJC and Justice Canada responded with its own reports, which culminated in the present amendments to the Judges Act proposed by the Minister of Justice.
The letter from the Canadian Bar Association goes on to say:
In the view of the CBA Subcommittee, Bill C-9 strikes a fair balance between the right to procedural fairness and public confidence in the integrity of the justice system with the discipline of judges who form the core of that system. The proposed amendments enhance the accountability of judges, builds transparency, and creates cost-efficiencies in the process for handling complaints against members of the Bench.
I would like to pause here briefly just to say that at a moment like this, looking at a bill like this, it seems to me that it would be a very good time to have a federal ombudsman for victims of crime to hear the perspective on how the judicial complaints process is or is not currently working and how this bill would or would not be able to meet those challenges or rectify those concerns.
In testimony given to the justice committee on June 3, 2021, the federal ombudsman for victims of crime at that time raised what she described as a “most critical” issue, which was the legal recourse or remedy that victims have if their rights are violated.
She stated:
Currently, victims do not have a way to enforce the rights given to them in law; they only have a right to make a complaint to various agencies. This means that victims have to rely on the goodwill of criminal justice officials and corrections officials to give effect to or implement their statutory rights under the bill. This means victims count on police, Crown prosecutors, courts, review boards, corrections officials and parole boards to deliver, uphold and respect their rights.
But my office continues to receive complaints from victims that are common across all jurisdictions in Canada. Victims report to us that they are not consistently provided information about their rights or how to exercise them, they feel overlooked in all of the processes, and they have no recourse when officials don't respect their rights.
While the bill we are discussing today is, as I said earlier, a step in the right direction, there is certainly more work that needs to be done to make sure our justice system in Canada works for everyone who comes into contact with it, and I will add especially victims. One way this can be achieved is by immediately filling the position of federal ombudsman for victims of crime, which has now been vacant for nine months. There is absolutely no excuse for this position to have remained vacant for nine months when other positions are filled immediately, including, as I mentioned earlier, the position of ombudsman for those who are in our federal prisons.
By contrast, as I was mentioning, when the offenders ombudsman position became vacant, the Liberal government filled it the very next day, as it should have been. It should be filled right away, but so should the position of the ombudsman for victims of crime.
In 2021, the Canadian Judicial Council published “Ethical Principles for Judges”. I would like to reference excerpts from this publication to add some context into the role and duty of the judiciary.
They read as follows:
An independent and impartial judiciary is the right of all and constitutes a fundamental pillar of democratic governance, the rule of law and justice in Canada....
Today, judges’ work includes case management, settlement conferences, judicial mediation, and frequent interaction with self-represented litigants. These responsibilities invite further consideration with respect to ethical guidance. In the same manner, the digital age, the phenomenon of social media, the importance of professional development for judges and the transition to post-judicial roles all raise ethical issues that were not fully considered twenty years ago. Judges are expected to be alert to the history, experience and circumstances of Canada’s Indigenous peoples, and to the diversity of cultures and communities that make up this country. In this spirit, the judiciary is now more actively involved with the wider public, both to enhance public confidence and to expand its own knowledge of the diversity of human experiences in Canada today.
As was just referenced, social context and society overall change over time, and critical institutions like the justice system must grow to reflect these changes. Much of the time, this simply requires education on emerging issues or a more updated perspective on older issues.
In order to grow, there is a crucial partnership that must be respected between the judiciary and Parliament. While the Parliament and the courts are separate entities, there is a back-and-forth conversation between the two that is essential to our democracy and our judiciary. We have recently seen examples in which that conversation, unfortunately, was desperately lacking. On Friday, May 27, of this year, the Supreme Court of Canada struck down the punishment of life without parole in cases concerning mass murderers.
When confronted on the impact of the Supreme Court’s ruling, the Liberal government is determined to stick to their talking points by telling Parliament and concerned Canadians that we should not worry about mass killers actually receiving parole, because that possible outcome is extremely rare. What that actually means is that this government is comfortable putting these families through a revictimizing, retraumatizing parole process, even though, at the end of the day, it is essentially all for show because, according to the government, we just need to trust that a mass killer will not receive parole anyway.
In the Supreme Court of Canada’s ruling, the decision stated, “A life sentence without a realistic possibility of parole presupposes the offender is beyond redemption and cannot be rehabilitated. This is degrading in nature and incompatible with human dignity. It amounts to cruel and unusual punishment.”
What the court is saying here is that keeping mass killers behind bars for the number of years that a judge has already decided would adequately reflect the gravity of their crimes amounts to “cruel and unusual punishment”. Personally, I and many others feel and believe that having the victims' families endure a parole hearing every two years for the rest of their lives is the real cruel and unusual punishment, and the federal government has a duty and a responsibility to respond to the court’s decision, something that it has not done and has shown no inclination to do.
Essentially, the Supreme Court also ruled on May 13 that one can drink one’s way out of a serious crime. We have called on the government to respond to that as well, and we look forward to debate on the response that needs to be coming. Just because the Supreme Court has made these rulings does not mean that this is the end of the road. What it means is that there is a discussion and a dialogue that has to take place, and now the ball is in our court. It is for us to deal with these decisions in Parliament. The Liberals can now create legislation that responds to the Supreme Court’s decisions, and this legislation can be used to make sure that victims, survivors and their families can live in a country where they are equally protected and respected by our justice system.
Bill C-9, an act to amend the Judges Act, is a step in the right direction. I will note that there is much, much more to be done to make sure that the justice system is fair and balanced for all.
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- Jun/16/22 11:22:40 a.m.
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- Re: Bill C-9
Madam Speaker, I have already agreed with my colleague from Fundy Royal that we need to deal more expeditiously with the vacancy for the ombudsman for victims' rights. However, in looking at this legislation, one must remember that of course judges in this country do not solely judge criminal cases. Obviously, the areas of law that end up before a judiciary are everything from contract law, environmental law and crimes that involve actual violence to property law, intellectual property rights and trade law. We could go on forever. These disputes go into many different areas of the life of a country.
Therefore, I would ask the member how he feels about these improvements and modernization of the Canadian Judicial Council.
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- Jun/16/22 11:24:50 a.m.
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- Re: Bill C-9
Madam Speaker, I thank my hon. colleague for bringing this forward. As a former Canadian Bar Association president and long-time lawyer before I came to this place, I know that one of the things we always fought for and spoke up for was independence of the judiciary. That is something that is integral to confidence in our justice system. However, in today's world, when all judgments that are made public are scrutinized by the public and sometimes hard to explain, it seems to me that a process for looking at the conduct of judges that would not necessarily meet the threshold of Judicial Council review makes some sense.
I am interested in my colleague's thoughts on how this bill interacts with our common support for independence of the judiciary.
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- Jun/16/22 11:25:48 a.m.
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- Re: Bill C-9
Madam Speaker, it was a pleasure to serve with my hon. colleague for some time on the justice committee. She brings a wealth of experience in this and other areas.
It is important. This legislation came in back in the 1970s. There are always improvements that can be made to the process, particularly when dealing with situations that do not warrant removal. As my hon. colleague has rightly said, the independence of the judiciary is so important. It underpins the process. Without an independent judiciary, we do not have proper rule of law in our country. Therefore, we respect that judicial independence, but we also know that there have to be robust provisions in place when there are actual cases of misconduct, rare as they may be.
This bill would streamline that process, particularly dealing with situations that do not warrant removal from the bench. Obviously, removal from the bench, for a judge, is the ultimate sanction. As I mentioned in my speech, it has been applied very rarely, but there are other instances where there needs to be a sanction for misconduct, and this bill would streamline that process. It is why we are supporting the bill, but we are also open to making amendments that would improve it and improve the role of victims in the process.
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- Jun/16/22 11:33:55 a.m.
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- Re: Bill C-9
Madam Speaker, I would like to thank my colleague from Rivière-du-Nord for his speech.
I would like to comment on the second part of his speech on the appointment process. As we discuss Bill C-9 today, what our colleagues have often pointed out is both the importance of maintaining the separation between the judiciary, the executive and the legislative powers and the importance of having a system the public can trust. It seems to me that these two principles are especially pertinent to the appointment of judges.
Does my colleague not think that this is the cornerstone of the more than necessary review of the appointment process?
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- Jun/16/22 12:16:28 p.m.
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- Re: Bill C-9
Mr. Speaker, I share the hon. member's concerns about activities undertaken by former members of the judiciary, but we have a thorny problem there in that when former judges resume their private lives, it is hard to imagine how we can impose standards upon them that are different from what we expect of others. I think it is a matter worthy of investigation and worthy of consultation broadly in society and in the legal and judicial community to find a solution to this problem.
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- Jun/16/22 12:17:20 p.m.
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- Re: Bill C-9
Mr. Speaker, as we approach the end of the parliamentary session, I want to take a moment to give thanks to my family, my staff, all of the people of Halifax West and all who have supported me and continue to support me in order to do my best in service.
I will be sharing my time today with the member for Mount Royal.
I am pleased to join my hon. colleagues today to speak in favour of Bill C-9, which proposes reforms to the current process for reviewing allegations of misconduct against federally appointed judges.
The role occupied by the judiciary in our system of government is unique. While one judge in the performance of their duties will interact with countless members of the public, the reverse is not true. Most individuals outside of the legal profession will have little direct exposure to judges in courtrooms in the course of their lives, yet for those individuals who do appear in court, that process is likely to be a major event in their lives. The behaviour of the judge handling their case will shape that person's impression of the justice system as a whole. For individuals who arrive in our courts seeking justice or facing serious jeopardy to their liberty, it is not an overstatement to say that the judge represents the personal embodiment of the values of integrity and impartiality that our justice system is trusted to uphold.
In addition, many people only ever see judges at a distance, in the context of significant or controversial issues. Canada has a high degree of respect for its judiciary and for the administration of justice overall, but it will require constant attention and effort to keep it that way.
Just as the impact of a judge’s behaviour on a particular individual can have great significance, so too can allegations of judicial misconduct have significant effects on public confidence and trust. Complaints against Canadian judges are rare, especially those severe enough to implicate potential removal from office. However, when they do occur, they capture public attention precisely because they diverge so radically from the norm. The public is entitled to see those allegations taken seriously and addressed through a process that itself reflects the best ideals of our justice system. Canadians need to know that the judicial system is fair to all, including the judiciary, and it is on this theme I wish to speak to members today.
Appropriate mechanisms for reviewing judicial conduct must be grounded in the constitutional realities of the judicial role. Judicial independence protects judges from outside influence of any kind, actual or perceived, in the exercise of their functions. This is absolutely critical to ensuring that the adjudication of cases is impartial and fair and is seen as such.
One form of influence against which judges are protected is the threat of personal reprimand or removal from their offices for conduct or decisions that may be contrary to the preferences of those in political power. For this reason, the Supreme Court of Canada has specified that the review of allegations related to judicial conduct, while vital to preserving public confidence in its own right, must be controlled and led by the judiciary itself. Moreover, the mechanisms for this review must allow opportunities for the judge in question to be fully and fairly heard.
Once a fair, judge-led process culminates in a recommendation on whether a judge should be removed from office, our great Constitution shifts the responsibility to us as parliamentarians to determine whether we will indeed remove the judge via an address to the Governor General. It is a testament to both the strength of our judiciary and the respect of this chamber for the sanctity of judicial independence that, to date, this power has never been exercised. It is a power that indeed must be reserved for circumstances of true necessity, when a judge refuses to leave office after it has been credibly established that their conduct threatens public confidence in the administration of justice.
To be sure that this power is exercised appropriately, Parliament must know that a judge-led review of the conduct of another judge was effective, impartial and thorough. This means ensuring the judge in question was treated with absolute fairness. This notion is at the very heart of the amendments we are debating today.
The current judicial conduct process, as set out in the Judges Act and operationalized by the Canadian Judicial Council, is in dire need of modernization and reform. The council has done what it can do to overhaul the process by making changes to its procedures, but much more is still needed, and that requires legislative amendments. As my colleagues have shared, a primary concern with the existing mechanism is its lack of efficiency, stemming from a rigid structure that is not easily adaptable to reviewing different types of judicial conduct. Associated with this are high costs in terms of money, time and detriment to the public trust.
Despite the intention of providing fairness to an impugned judge, the current regime can instead foster near endless litigation, as every facet of the inquiry process is susceptible to challenge through judicial review, compounded by appeals to multiple levels of court, often on grounds that have little merit or that bear on the public interest. My colleagues have referred to some of these examples, and I will not repeat them. It suffices to note that as matters linger unresolved for extended periods and at great cost, confidence in the administration of justice and the judiciary is undermined.
Procedural fairness, as accorded to judges, is necessary. Indeed, it is as equally important as the fairness that must be accorded to individuals in judges’ own courtrooms. However, procedural fairness can be satisfied in a way that does not enable adversarial zeal, calculated delay and resulting negative repercussions for Canadians. The Canadian Judicial Council itself has acknowledged that the status quo is at odds with the public interest. It is now for us as lawmakers to act.
Bill C-9 proposes a suite of reforms designed to overhaul the process for handling judicial conduct complaints. All have been carefully crafted to ensure that public confidence is enhanced, recognizing that this requires independence and efficiency, as well as a high degree of procedural fairness. Satisfying those complementary objectives will in turn foster greater trust in the administration of justice more broadly.
Bill C-9 would enhance the versatility of the judicial conduct process by providing a review panel to deal with less severe cases, that is, allegations of misconduct that are not so serious as to potentially warrant removal from office. This introduces responsiveness and nuance through options other than a full-scale hearing, sparing both judges and complainants from the strain of adversarial public hearings and the possible stigma of publicizing unverified allegations. A judge would nevertheless retain the right to be aware of all allegations, respond to them comprehensively and benefit from the advice and advocacy of skilled counsel.
Given the scrutiny and profile that public hearings necessarily entail, the need for fairness is especially important whenever it is required. Under the new process, allegations of misconduct so serious that removal from office may be warranted would be handled by a hearing panel comprising five members. It would include representatives of the judiciary, the legal profession and the public, and hearings would function in a manner akin to a trial. Prosecuting counsel would also be appointed, with the responsibility to present the case against the judge, much as a criminal prosecutor would do. The judge would be entitled to rigorous opportunities to call evidence and examine counsel. The process would ensure that the full rigour of an adversarial hearing, with the same clear court procedure, applies to all hearings.
I doubt anyone could reasonably claim that the processes I have described would fail to provide procedural fairness to a judge whose conduct has been called into question. They are not only fair but exhaustive and rigorous, designed to apply the rigour of our justice system to serious allegations while also allowing more humane and effective alternatives when allegations do not rise to a serious level. Most importantly, we as parliamentarians can be assured that should the day ever come when we need to consider a recommendation for judicial removal, we can have confidence that the recommendation stems from a scrupulous, fair and effective process.
With that, I look forward to questions from my colleagues.
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- Jun/16/22 12:32:25 p.m.
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- Re: Bill C-9
Mr. Speaker, I am very pleased to rise today to support Bill C-9, an act to amend the Judges Act.
This bill proposes to overhaul a process that is essential to maintaining public confidence in our justice system, namely the mechanisms used for examining allegations of judicial misconduct.
If there is one class of legislation that everyone in the House should be able to agree on unanimously, it is laws having to do with our justice system.
In the time I have been in the House, I have been really pleased to see the non-partisan ways that members have been able to work together on justice-related issues on many occasions. I am going to outline one that just happened last week.
My hon. colleague from St. Albert—Edmonton proposed a private member's bill to carve out an exception to allow jurors to speak to mental health professionals about what happened during the time they were in deliberations. Up until now, the Criminal Code has prohibited jurors from doing so, thus creating a problem where a juror who is profoundly affected by what happens in deliberations is unable to speak about it to somebody who can counsel them on their mental health.
At the justice committee, we heard from jurors. We put forward a package of recommendations in the 42nd Parliament related to how we should improve the lives of jurors. My colleague from St. Albert—Edmonton worked with a colleague in the Senate. They put this forward in both Houses and were able to secure the unanimous adoption of a bill that will profoundly change the life of jurors. That is the way we should do things in this House more frequently.
This bill is another excellent example of where there has been profound collegiality. There has been a lot of consultation and there is a general consensus that we should move forward. I echo the comments of my dear friend from Saanich—Gulf Islands that we should find a way to pass this before we have any type of summer break.
That being said, one of the things that I think is really important in this country is the respect for our institutions. We have wonderful federal judges who have been appointed in this country, people of great distinction in their field. When people go before the courts, they need to have confidence that the judges are impartial and fair and that judges have the ability to fairly adjudicate their case. This means we need a process that the public can trust for judges who are accused of misconduct.
There are things in this country we should not question. We should not be questioning the central bank. We should not be questioning the justice system. We should have profound confidence in these national institutions no matter our party or our political leanings. Therefore, it is up to us as parliamentarians to create laws that provide that confidence. This bill does that in three essential ways.
On the first point, I am going to use the example my friend from Esquimalt—Saanich—Sooke used earlier, of when a judge is photographed between the time the judge finishes judging a case and the opinion is published and there is a picture of the judge with a group of people who are a party to the case. That does not necessarily warrant that judge's removal from office for life and an act of both Houses of Parliament to remove the judge. Right now, there are no sanctions below removal that are available to the Canadian Judicial Council. This bill offers us alternatives such as training, an apology in public and other things a judge can do to excuse behaviour that does not rise to the level of warranting removal.
Second, we have seen a misuse of the system. There are judges who have been accused, but there have been very few because our judges are a very distinguished, excellent group of people. I do not want anything I say in this speech to be considered a slap in the face to the federal judiciary which is made up of excellent people. There are always some people who are alleged to have committed and do commit some misconduct. The idea that people can tie this up in knots for years and years with appeal after appeal until they are able to get their pension does not make any sense.
I am very pleased that we now have a process with a panel of three to five people to start, if the relationship is extremely troubling, and that its decision can be appealed directly to the Supreme Court of Canada. There will be no appeals to the Federal Court or the Federal Court of Appeal. The process will be much faster, and I believe that this is very important.
There is something else that is important, and that is transparency. At present, the Canadian Judicial Council is not required to prepare an annual report of all complaints submitted. It will now be required to disclose annually that it has received such complaints and to explain how they were addressed. That is also important for transparency.
I would also like to mention that there has been a lot of discussion in the House about the importance of the rights of victims. Let me say that when it comes to all parties and every parliamentarian, there is a profound respect for the rights of victims and the need for victims to feel they were fairly served by the justice system. It is very important to respect the rights of the criminal defendant, but it is also important to make sure victims are considered throughout the process.
This process that would be in place would be a faster process. This means people who were alleged to be victims of misconduct would have their final decision much faster than they would otherwise have had it. That also is important.
I am going to sort of make a clarion call. Especially at the end of the session, there is often a lot of partisanship and anger shown, but as a group, we can do so much good. I know this from experience, having worked with Conservative colleagues, like my friend from Sarnia—Lambton, and my colleagues in the NDP. I have worked often with the member for Edmonton Strathcona, as well as my friend from Saanich—Gulf Islands and members of the Bloc.
We all worked together to do constructive things. If we use the next week to pass bills we agree are constructive, I believe that we will accomplish a lot. I am therefore asking my colleagues in the House to work together to find a way to pass this bill before the end of June. I believe that it would be a great thing for Canadians.
This would allow us to show Canadians, who are discouraged when they see the acrimony floating around, that parliamentarians really can work together and accomplish things. I think that confidence in our national institutions is so important to restore.
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- Jun/16/22 4:01:32 p.m.
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- Re: Bill C-9
Mr. Speaker, I have a few remarks on Bill C-9, an act to amend the Judges Act. I am not a lawyer or a full subject matter expert on this bill, but having read the bill kit, I have put together a few words. It seems there is some unanimity and some good work has been done by our government. Hopefully this bill can be sent to committee for study by the learned members that have the honour and privilege of sitting on the justice committee here in Parliament.
It is, as always, great to see everyone this afternoon. I hope everyone is doing well, and that their loved ones at home are doing likewise.
I am here today to discuss a matter of crucial importance to our judicial system. The Canadian judiciary has a solid reputation and has long been respected here at home and abroad, which is one reason it enjoys the confidence of Canadians and the admiration of societies the world over.
There is a reason for that. Our judicial system is strong. It has been reinforced and improved continually over time thanks to the decisions rendered and measures taken by the people who make the system tick. Our system gets better and better because of the skill and hard work Canadian judges bring to every case, along with their unimpeachable character and exemplary conduct.
This is why allegations of misconduct against a judge can have such a corrosive effect on the bright enamel of our justice system. While these allegations are rare, they are highly significant for the judges and the individuals concerned, and they have deeper importance for public trust in the integrity of justice. It is critical that the public have confidence in a system for investigating judicial misconduct allegations that is scrupulously fair, effective and, most important of all, guided by the public interest at its heart.
The minister and the parliamentary secretary have eloquently provided context for Bill C-9, as well as presented its key features. To complement this, I wish to focus on the theme of accountability. In the context of judicial conduct reform, this concept has three important dimensions: First, there is accountability as applied the public. Second, there is the accountability of judges. Third, there is financial accountability. I will briefly touch on each.
As I have already said, public confidence in the justice system is critical. The law and the administration of justice exist to serve the public. The bill before us today is intended to strengthen that trust through a more robust mechanism for dealing with complaints against members of the judiciary. This mechanism will also ensure greater transparency and greater public participation.
Furthermore, the reforms in question were developed following extensive consultations. This inclusive approach, involving members of the Canadian public as well as academic experts, legal professionals, the Canadian Judicial Council and the Canadian Superior Court Judges Association, underscores the government's commitment to strengthening public trust.
The consultations also revealed a strong public interest in a more transparent and accessible judicial disciplinary process, with increased participation from representatives of the general public who are not legal professionals.
Bill C-9 codifies a space for public representatives as part of the judicial conduct complaint review process. Whereas the existing model can be rigid and opaque, the proposed reform would inject responsiveness and transparency. Following the reforms contained in this bill, a panel made up of both public and judicial representatives would review all allegations of judicial misconduct that are deemed worthy of investigation. These panels would consider complaints through written submissions and be authorized to prescribe remedies short of removal from office where this is appropriate. Remedies could take the form of mandatory education or training, formal reprimands or the issuance of an apology. In this way, representatives of the public would be directly involved in ensuring the fairness and integrity of judicial conduct investigations.
The new regime would also require that a representative of the public serve on panels holding the most serious hearings, those that may culminate in a recommendation of removal from office. This properly reflects the fact that the public's wisdom, as well as its best interests, should feature centrally in addressing the most serious allegations against a judge. I have no doubt that this measure would enrich the quality and integrity of those hearings, just as it would provide an appropriate mechanism of transparency and public participation.
I will now turn to the issue of judicial accountability. Judges are the faces of the justice system. Their decisions and conduct make the law tangible, not only to those who appear in proceedings before them but also to the broader public as well. The extent to which the administration of justice is determined by the degree of confidence in those who make it work, judges included. Consequently, the conduct of judges is rightly scrutinized more closely and more critically than that of perhaps any other professionals.
Upholding this high standard relies on the integrity of the individual judges, as well as on the effectiveness of the system designed to address complaints. As I alluded to previously, in the context of public participation, a key indicator of the trustworthiness of a mechanism is its responsiveness. Currently, the Judges Act only empowers an inquiry by the Canadian Judicial Council to consider removal of a judge from office. This blunt approach is both too restrictive and too broad. Where the conduct at issue fails to meet the high threshold for judicial removal, public confidence is undermined by the absence of appropriate remedies for conduct that may nonetheless raise reasonable concerns.
Conversely, there is the risk that a lack of remedial alternatives causes lesser misconduct to be addressed through the full force of a public inquiry.
A more nuanced approach will help to meaningfully address a greater variety of allegations of misconduct in a way that will be both more efficient and cost-effective. The bill includes new opportunities for early resolution and for adapting procedures based on the seriousness of the allegations in question. This capacity to adapt strengthens the trust in the process and supports the integrity of the judiciary. We guarantee that every case of misconduct can be properly sanctioned and that no judge will fall through the cracks or be subject to procedures that seem disproportionate in the circumstances.
The responsibilities introduced by the bill are complemented by the accountability with respect to the funding of the process. More specifically, the legislation sets out a more stable funding mechanism, as well as protection measures and additional controls that will guide the use of public funds.
As such, the Canadian Judicial Council will be able to carry out its mandate to investigate allegations of judicial misconduct, a mandate that stems from the constitutional principle of judicial independence. Currently, the efficacy of the funding is compromised by the fact that the usual mechanism for obtaining funding simply does not meet the unusual needs related to the process.
Bill C-9 proposes a new funding mechanism that would actually separate the cost of the process into two components. The investigations will be paid for out of non-discretionary funds and the amounts required for fair and robust hearings will be paid directly out of the Consolidated Revenue Fund.
Expenses paid out of the Consolidated Revenue Fund will now be more transparent and stable thanks to three main measures. First, a regulation will be adopted under clause 144 of the bill to limit the number of lawyers participating in the process who can charge for their services. Second, under clause 145, the policies for the regulation of other process-related expenses will be developed by the Commissioner for Federal Judicial Affairs, whose office provides key operational support to the Canadian Judicial Council and is ultimately responsible for all the costs of the process.
Judicial conduct review mechanisms generally receive broad attention only on those rare occasions when high profile allegations of judicial misconduct focus the public's mind on them.
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- Jun/16/22 4:31:57 p.m.
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- Re: Bill C-9
Mr. Speaker, like some others in the House and like my colleague who was just speaking, I am a lawyer, and the practice of law has been a large part of my life. My son and two of my daughters followed me into the legal profession, and it is a source of pride to me as they pursue their professional careers.
I continue to be grateful to have been appointed a Queen’s Counsel some 23 years ago, and to have been elected president of the B.C. branch of the Canadian Bar Association the year previous. I have a deep appreciation and passion for the law and its unbiased application.
In the plainest of terms, Bill C-9 amends the Judges Act to replace the process through which the conduct of federally appointed judges is reviewed by the Canadian Judicial Council. It establishes a new streamlined process for reviewing allegations of misconduct that do not reach the threshold for a judge’s removal from office, and the process by which recommendations regarding removal from office can be made to the Minister of Justice.
These provisions also apply to persons other than judges who are appointed under an act of Parliament to hold office during good behaviour. This bill was previously tabled in the Senate as Bill S-5 on May 25, 2021. The legislation before us is the result of consultations conducted by the federal government in 2016 on reforming this process. That is six years ago.
It is incredibly important that the judicial system be just and fair, holding accountable those who are both behind and in front of the bench. Increasing public confidence in the judicial system, while ensuring the independence of the judiciary, is necessary for the foundations of our justice system to continue to function as intended.
Many will recall that in response to comments from Justice Robin Camp at a sexual assault trial in 2014, former interim Conservative leader Rona Ambrose introduced a bill to require seminars on sexual assault be taken by federally appointed justices
At the time, the Alberta Court of Appeal panel ruled that Justice Camp seemed not to understand laws on consent and an alleged rape victim’s sexual activity, and that his acquittal of the man may have been coloured by “sexual stereotypes and stereotypical myths, which have long since been discredited.” Justice Camp’s ruling was thrown out and a new trial date set. Justice Camp went on to resign from the bench in 2017, after the Canadian Judicial Council ruled he should be removed from office.
Before this case, there were volumes of case law and newspaper columns about jurists who misapprehended sexual consent or post-assault behaviour, who then went on to preside in court and rule again on other such cases.
An earlier version of the bill received royal assent on May 6, 2021. This bill can be viewed as an attempt to increase confidence in the judicial system, which had been shaken by the words and actions of Justice Camp and others.
Fairly representing victims' rights is an integral aspect of the proper functioning of the judicial system. One important aspect of the court process is the submission of victim impact statements: written statements from a victim or victims that describe the physical or emotional harm, property damage or economic loss that the victim of an offence has suffered. Our courts take these statements into account when an offender is sentenced. This gives victims of crime a voice in the criminal justice system.
The government has not been prioritizing victims' rights, and it is failing Canadians and the integrity of our judicial system as a result. Inexcusably, the role of the federal ombudsman for victims of crime has been vacant since October 1, 2021, with the justice minister’s office saying it will be filled “in due course.”
The ombudsperson has a critical role in highlighting and reviewing systemic issues that negatively affect victims and emerging issues. This vacancy is simply unacceptable, and sends a message to survivors and Canadians alike that they will not necessarily be represented fairly in the justice system. Adding to concerns that victims of crime are not being heard is Parliament’s failure to complete a review of the Canadian Victims Bill of Rights. The review was supposed to happen in 2020.
Canadians’ perspective of the judicial system reflects, in part, these failures. According to the Justice Canada studies, regardless of whether their cases did or did not go to trial, participants were asked to rate their level of confidence in the police, the court process and the criminal justice system in general.
Few stated that they were very confident. Indeed, approximately two-thirds of the responders stated that they were not confident in the administration of justice in general. This data is not coincidental. It is imperative that our judiciary system continues to adapt to effectively represent Canadians fairly.
A Department of Justice report stated that:
For the 2016/2017 fiscal year, 42% of all sexual assault case decisions (levels 1, 2, and 3) in adult criminal court resulted in a finding of guilt.
According to StatsCan, statistical evidence classified 14% of level 1 sexual assault incidents as unfounded in 2017. In comparison, the more serious levels of sexual and physical assault were classified as unfounded in only 9% of level 3 sexual assaults, 7% of level 2 sexual assaults, 3% of level 2 physical assaults and 1% of level 3 physical assaults. Why is there a difference?
This bill would modify the existing judicial review process and allow for sanctions such as counselling, continuing education and reprimands. Improvements in the administration of justice will result.
The bill states that the reasons a judge could be removed from office include:
(a) infirmity; (b) misconduct; (c) failure in the due execution of judicial office; (d) the judge is in a position that a reasonable, fair-minded and informed observer would consider to be incompatible with the due execution of judicial office.
In the case of a complaint that alleges sexual harassment or discrimination, it would not be dismissed. The full screening criteria would be published by the Canadian Judicial Council. The minister and Attorney General may request that the Canadian Judicial Council establish a full hearing panel to determine whether the removal of a judge from the office of a superior court is justified.
The council would submit a report within three months after the end of each calendar year with respect to the number of complaints received and actions taken. This is a prudent measure that would ensure transparency and accountability from a senior group of jurists exercising quasi-constitutional duties.
Such provisions in this bill would enhance and strengthen the Canadian legal system as a whole. As a former parliamentary secretary to the Minister of Justice, I welcome this legislation. Bill C-9 is a move in the right direction. It is not the end of the journey, but the start of the journey.
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- Jun/16/22 4:45:08 p.m.
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- Re: Bill C-9
Mr. Speaker, I will be sharing my time with the member for Saanich—Gulf Islands, a place I am hoping to visit sometime soon.
It is always an absolute privilege for me to stand in this place and work for the people of Canada. That is certainly true today. I will also say that it is absolutely an honour for me to rise on behalf of the residents of my riding of Davenport to speak to Bill C-9, an act to amend the Judges Act and the Criminal Code.
I always like beginning my speeches with a quick summary of what a bill proposes to do and some of the key changes that are being proposed. Then I go into a bit more detail in my main speech.
Bill C-9 proposes amendments to the Judges Act to replace the process through which the Canadian Judicial Council reviews the conduct of federally appointed judges. It would establish a new process for reviewing allegations of misconduct that are not serious enough to warrant a judge's removal from office, and it would make changes to the process by which recommendations regarding removal from office can be made to the Minister of Justice. This new process would also apply to persons, other than judges, who are appointed under an act of Parliament to hold their office during good behaviour.
The proposed amendments to the Judges Act would do the following. First, they would amend and streamline the process for more serious complaints, where removal from the bench could be an outcome. Second, they would address the current process' shortcomings by imposing mandatory sanctions on a judge when a complaint of misconduct is found to be justified but not serious enough to warrant removal from office. Such sanctions would include counselling, continuing education and reprimands. Third, they would require the Canadian Judicial Council to include in its annual public report the number of complaints received and how they were resolved.
Indeed, Bill C-9 is unique. Let me provide a few more details about why, and at the same time elaborate on what Bill C-9 proposes to do.
Canadian judges are rightly held in high regard not just in Canada, but around the world. Their decisions carry great weight for individuals appearing before them, whose lives are so directly and meaningfully affected, and for society as a whole. Canadians rightly expect much of judges: to make decisions that apply the law correctly and fairly, and to do so in a way that embodies unimpeachable character and meets the lofty standards to which judges are held. The confidence of the Canadian public in individual judges and the judiciary as a whole depends on it.
We know that public confidence is well placed, but neither we as lawmakers nor Canadian society as a whole can become complacent. We all have a role to play to ensure that confidence in the judiciary continues to be merited. Part of that is making sure Canadians know there are avenues open to therm to make complaints about a judge's conduct and that appropriate recourses are available. For this reason, processes have been established that allow for such complaints about the conduct of individual judges.
At the same time, judges must be able to respond to complaints and be assured that they will be treated fairly and in a way that is in keeping with their judicial independence. For this reason, the Canadian Judicial Council, comprising the most senior judges in Canada, was created and has the authority to manage the processes by which complaints about judges are investigated.
Parliament also has a role to play. In 1971, Parliament established the Canadian Judicial Council and charged it with establishing and managing the process for investigating complaints against federally appointed judges. The legislative framework that Parliament set out for the judicial conduct process remains with us, largely unchanged, several decades later.
Today, we have reached a unique point in history. We have before us the opportunity to build on Parliament's past work by modernizing the judicial conduct process, ensuring that it continues to reinforce public confidence. I urge every member of the House to seize this opportunity.
The existing mechanisms used to review allegations of judicial misconduct are in urgent need of renewal. The current process was established more than 40 years ago. Since then, the administrative law landscape surrounding the process has changed. The values and standards that help shape expectations of judicial conduct have evolved too. The judicial conduct process, however, is largely the same. We know that it is out of date and that it demands reform.
The Canadian Judicial Council, with its decades of experience running the judicial conduct process, has called for such reform. The council's chair, Chief Justice Wagner, had identified this as a priority from the beginning of his time in his role. At his welcome ceremony as a new chief justice of the Supreme Court of Canada in 2018, Chief Justice Wagner noted the need to modernize the mechanisms for addressing complaints regarding judicial conduct.
Several recent judicial conduct cases have highlighted the importance of reform. They have shown us that under the current system, cases can be marked by exorbitant legal fees, lengthy delays and multiple inefficiencies. This is not a process that inspires abiding public confidence, but today, by supporting Bill C-9, we have a chance to fix this.
Bill C-9 addresses the shortcomings of the current process and launches the long-awaited renewal of the judicial conduct process. The reforms proposed in Bill C-9 would make the process more efficient by, in part, preventing parties from seeking judicial review of decisions that are made during the judicial conduct process. This would reduce costs and prevent delays. The bill would also increase accountability by establishing a more robust role for the public in the process.
The bill before us today proposes a set of carefully considered, well-informed and broadly supported reforms. These reforms come out of robust consultations and substantial engagement with the Canadian Judicial Council, which would remain responsible for carrying out the judicial conduct process, and with the Canadian Superior Courts Judges Association, which represents many of the federally appointed judges to whom the new regime may be applied.
In June 2016, our federal government launched public consultations on modernizing the judicial conduct process. Over the following months, we were pleased to receive multiple submissions reflecting the importance that this process holds for the legal community and for Canadians as a whole. We heard from individuals and organizations who provided thoughtful comments on the existing process and suggested meaningful reforms. The Canadian Judicial Council and the Canadian Superior Courts Judges Association participated in these consultations, as did the Canadian Bar Association and the Federation of Law Societies of Canada and members of the general public.
These consultations sent a clear message that there is broad support for the reform and modernization of many aspects of the judicial conduct process. The process should be more efficient and more transparent and should provide for greater public accountability. The reforms set out in Bill C-9 embrace this message, responding to the concerns expressed in the consultation process.
Following the consultations, our government engaged closely with the council and the association on multiple occasions to develop and refine proposed reforms to the judicial conduct process. This close collaboration ensured that the reforms before us today are informed by the experiences of the people who work with the process directly, and the experiences and perspectives of Canadian judges themselves.
In conclusion, Bill C-9 sets out the changes that are required to modernize and renew a process that is key to public confidence in the justice system. The proposed reforms before us today address a long-standing problem. They were carefully developed. They are widely supported. They reflect the experience, wisdom and knowledge of the judiciary itself. More importantly, they advance the best interests of Canadians who interact with our justice system.
Fellow members, let us work together to strengthen and modernize the mechanisms for addressing complaints about the conduct of federally appointed judges, and reinforce and foster public confidence in our judiciary and our justice system. Let this bill and its passage mark an important point in the history of the judicial conduct process in Canada. I urge all members to join me today in supporting Bill C-9 and passing these long-awaited changes to the judicial conduct process.
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- Jun/16/22 5:00:14 p.m.
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- Re: Bill C-9
Mr. Speaker, it is an honour to rise here today on the traditional territory of the Algonquin Nation. Meegwetch.
I really had hoped to be allowed to ask the member for South Surrey—White Rock a question, and I will tell members why, because I think they might enjoy this.
The hon. member for South Surrey—White Rock mentioned that she used to practise law, and I used to practise law. However, the member was actually part of the governing party when we were both first elected in 2011 when she helped me with a family law case. I just wanted to put that out there.
One of my constituents had a grandchild pretty much kidnapped by a non-custodial father who took the toddler to New Hampshire. I was going crazy, as were the mother and other members of the family, trying to figure out how to get the baby back. Speaking of judges I do not like, I would mention the family court judge in New Hampshire who thought that a court order from the Supreme Court of British Columbia for full custody of the little girl was something out of a Cracker Jack box that the judge was free to ignore. It was quite the case. The hon. member for South Surrey—White Rock gave me some very good advice, which helped me get the baby back. She is now 16 and living with her proper family, and so it all came out quite well.
I want to talk about Bill C-9, which would reform the Canadian Judicial Council.
As I was speaking of a U.S. judge, it reminded me of this whole experience when I was at Dalhousie law school. We had one professor who challenged us on a case one day. We spent hours trying to figure out the rationale for the judge's decision. It made no sense to us. Obviously, the judge had ruled it, and so we had to figure out the legal reasoning, because there must be legal reasoning. It was a contract case and it made no sense. After about an hour of us tearing our hair out and putting forward solutions, our professor asked, “Is it permissible to ask if the judge was bribed?” The judge was, which is why the decision made no sense, and he was thrown off the bench for it.
This was an episode for us in real-life judicial reasoning. Sometimes the judge is bribed. Now, I do not know if this has happened in Canada, but it might happen sometime, and this is why we need a judicial review process. This particular process has been in place since 1971, and there are good and real reasons that it needs to be fixed.
There is another real-life case that I found explanatory. For the general public who may be watching this debate today, it has been a little dry, so I figured I would give a real-life example, which some members may know.
The judge is from the Quebec Superior Court, Michel Girouard who, I think 13 days before being elevated to a being a judge, was caught on video buying cocaine. This is similar to a Netflix true-crime story. Judge Girouard was challenged in 2010 when there was a complaint to the Canadian Judicial Council.
It is pretty clear that when a judge is caught on video buying cocaine from one of his clients who was then before the courts that we really do not want that particular gentleman on the court. If we want to talk about something that brings the justice system into disrepute, that would be it.
The case started in 2012 and did not end until 2021, when the Supreme Court of Canada refused to hear Judge Girouard's appeal. At that point, he had managed to use every possible legal avenue to fight the finding that he was not qualified to be a member of the judiciary. He fought it, and for those of us who are trained in law can imagine, there are many ways to be creative and litigious, and this gentleman was very litigious. Not only that, under the previous law that we had, the people of the province, the taxpayers, had to pay all of his legal fees, because he was a judge and it was under the judicial complaints process.
I will point out one thing that Bill C-9 would do. We obviously learned a lot from that experience, and we do not want to have someone who is challenged dead to right who should not be a member of the bench, able to keep exploiting every possible appeal and then charge the taxpayer for the legal fees. Also, there should be a way of limiting how many accesses to judicial review through the federal courts someone in this situation should have.
Bill C-9 would do something quite straightforward that I have not mentioned yet today. If a judge going through this process wants to find ways to appeal, they are all in Bill C-9. The only court that a judge who is being challenged in this way can get to is the Supreme Court of Canada, at the very end of the process. The judge cannot keep finding a judge somewhere to hear some aspect of a complaint the judge is fighting.
Just to make it clear, under this legislation, there would be complaints, a screening officer, a reviewing member, and they can create certain kinds of review panels and hearing panels together, but they are not clogging up the regular court system. The judge that is the subject of the complaint is precluded from going to any other court, but at the very end, has the right to an appeal to the Supreme Court of Canada.
The law also gets rid of the idea that the people have to pay for the legal costs of a judge. The opportunity to appeal to the courts under the new process, proposed section 158 of Bill C-9, specifically bars any legal challenges or other forms of judicial review. This is a very helpful change.
Everything about the way the bill has been constructed has been the subject of a great deal of consultation due to cases, and there have not been a lot of cases. Let us face it, in the 40 years since the Canadian Judicial Council was created, as far as I could find, and it was the same figure that the hon. member for Esquimalt—Saanich—Sooke used, which means it is probably right, was that there were only 14 reviews in the last 40 years. This speaks to a very high level of ethics and integrity within our judiciary.
However, if someone does have a problem, there are very large stakes in getting this right. We do not want frivolous complaints from, for instance, people who have lost cases in front a judge and that disaffected previous litigant having the right to make a judge's life hell, to pursue them and subject them, in social media or wherever, to unfair charges. The judge subject to a complaint clearly has rights and has to be treated fairly. That side of getting the balance right is well reflected in Bill C-9.
The other aspect is we do not want public confidence in our justice system to be shaken by having someone serving as a judge who clearly does not meet the standards of ethical conduct, the way it is expressed in this new bill. The ones that used to be there are infirmity, misconduct, failure of due execution and, this is the new one that is relatively traditional, the judge is in a position that a reasonable, fair-minded and informed observer would consider to be incompatible with the due execution of judicial office.
In the time remaining, I want to mention that all of us here should think about the benefits of this new approach. The system we are currently under really has a binary choice: The judge is off the bench or the judge is on the bench. This new system says that maybe the judge needs some training, some counselling or a warning. There is a different approach here, again something short of the kind of misconduct that says the judge must leave the bench altogether, that allows for help.
One can imagine these are stressful positions. Mental health issues affect everyone in every profession, so there could be conduct that is questionable, but, on the other hand, overall the person is a good judge. Bill C-9 would allow that judge in that circumstance to be treated fairly, but it also protects the public and the taxpayer from judges who would do absolutely anything to stay on the bench, even if, as in the case I cited, they have been caught on video buying cocaine.
With that, I hope we can expedite the passage of this bill. It has been around even longer than some members have mentioned, because it was Bill S-5 in the last Parliament in the Senate and died on the Order Paper when the last election was called. Let us get this bill passed.
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- Jun/16/22 5:28:57 p.m.
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- Re: Bill C-9
Mr. Speaker, I was not suggesting that people would get off scot-free. What I am saying is that Conservatives believe that, for the serious cases I listed, with the removal of mandatory minimums in Bill C-5, there should be a floor, a benchmark or a minimum punishment for some of the most severe and serious crimes being committed to go after the people who are going after our most vulnerable.
Again, I alluded to this in my comments. These are highly educated judges, and I have respect for our judiciary. I also have respect for victims. I believe when somebody is committing robbery with a firearm or extortion with a firearm, or they are producing heroin, cocaine, fentanyl or crystal meth, there should be a benchmark and a minimum. They would have the discretion to go higher, but there would at least be a floor. It is standing up for victims and their rights.
I will not apologize for that, and I reject the premiss that to support mandatory minimums in these serious cases is somehow saying we do not trust our judiciary. I trust the need to stand up for victims and for there to be proper consequences for those who harm them.
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