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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