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 10:57:22 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 11:39:01 a.m.
- Watch
- Re: Bill C-9
Madam Speaker, I am pleased to stand this morning to discuss Bill C-9.
While I was reading the bill, I had a bit of déjà vu. I remember driving on the 417 in the spring while listening to the speeches in the House on Bill S-5, which was sponsored by Senator Dalphond, for whom I have tremendous respect. I still call him “Your Honour”.
I know that Bill S‑5 died on the Order Paper because of the election. The fact that I was supposed to discuss Bill C‑9 in the spring but did not get a chance to shows that we may be a bit behind on the legislative agenda. That is the only criticism I will offer today. As for the rest, I am highly satisfied at least with the spirit of the bill we are studying, as is the Canadian Judicial Council, which strongly supports it.
We are talking about it today. One of the pillars or cornerstones of the bill is the importance of the separation of powers between the legislative, judicial and executive branches. This has been the case since 1971, when the Canadian Judicial Council was created and made responsible for reviewing complaints. This is maintained in Bill C-9.
To ensure the separation of powers, the ability to remove judges is also maintained, as originally provided for in section 99(1) of the Constitution Act, 1867, which states that “the judges of the superior courts shall hold office during good behaviour, but shall be removable by the Governor General on address of the Senate and House of Commons”.
If we relied specifically on this principle, it might appear as though the legislative branch and the executive branch, meaning us here in Parliament, had power over the removal of judges. However, since 1971, the complaint review process has been the responsibility of the Canadian Judicial Council, which must issue recommendations to the Minister of Justice in order for the removal to take place. This complaint review process has been around for over 50 years.
With respect to what has been done since 1971, the improvements in Bill C‑9 meet certain needs. In this case, better is not the enemy of good. We tend to think that if something is working reasonably well, we should not necessarily seek perfection. I think that this used to apply in this case.
There are three essential issues that the bill resolves. The first is that the current process is extremely long. Given the numerous opportunities to file for appeals and judicial reviews during the process, it can take a very long time to review a complaint. My colleagues mentioned that. Unfortunately, we saw proof of this with a Superior Court judge whose name I will not mention, but whose review process lasted from 2012 to 2021. If I remember correctly, the decision was handed down in 2021.
As my colleague from Rivière-du-Nord mentioned, the problem is that, during that whole time, the judge continues to receive their salary and benefits and contribute to their pension. That in itself can be an incentive to come up with endless stalling tactics and draw the process out in order to keep the financial benefits.
This bill makes certain changes. In particular, it modifies the process to include the creation of an appeal panel, the final body before the Supreme Court to which a judge who is at fault can apply. This eliminates the need to go through the Superior Court and the Court of Appeal to reach the Supreme Court, assuming it even agrees to hear the appeal. The bill streamlines the process.
As my colleagues mentioned, under the current version of the act, judges still receive their salary and benefits. Clause 126(1) of the new act remedies that situation. It states, and I quote:
For the purposes of calculating an annuity under Part I, if a full hearing panel decides that the removal from office of a judge who is the subject of a complaint is justified, the day after the day on which the judge is given notice of the full hearing panel’s decision is the day to be used to determine the number of years the judge has been in judicial office and the salary annexed to the office held by the judge at the time of his or her resignation, removal or attaining the age of retirement unless (a) the decision is set aside by a decision of the Supreme Court of Canada, or by the decision of an appeal panel if the appeal panel’s decision is final; (b) the Minister’s response under subsection 140(1) provides that no action is to be taken to remove the judge from office; or (c) the matter of removal of the judge from office is put to one or both Houses of Parliament and is rejected by either of them.
As a result, a judge who is found to be at fault will not receive a salary during that period.
Another problem with the previous version of the bill was that there were no half-measures for lesser offences, so to speak. It was all black or white. The panel's only options were to issue a recommendation for removal or to not issue one. The only middle ground involved negotiating some sort of disciplinary action with the judge on a case-by-case basis. However, judges were quite free to say that they did not want any part in that process because it was not mandatory.
This bill remedies that situation. As soon as a complaint, which can be based on written submissions to the panel, has been examined, the panel can impose redress measures in cases where the reason for the complaint does not constitute grounds for removal.
The review panel can order the judge, for example, to take professional development courses or require him to apologize. In some cases, this can help more effectively remedy a situation when the judge is open to having certain sanctions apply. This may be sufficient, in certain cases, to avoid continuing with a full complaint process and public hearing, which could be long and expensive.
One of the options in the new bill is for the council to issue a private or public expression of concern. There is a certain transparency in the process. The council can issue a private or public warning, a private or public reprimand or order the judge to apologize. As I mentioned in my question to the member for Fundy Royal, the only thing that is a little unusual is one of the measures in clause 102, as follows:
(g) with the consent of the judge, take any other action that the panel considers appropriate in the circumstances.
Perhaps there are questions that should be asked when the bill is referred to a committee for study after second reading, if it gets to that stage, which should not be a problem. For example, why is the judge's consent required? Why do the victims have no say in choosing the sanction to be applied for an offence that is less serious than one that might lead to removal from office?
Another thing the bill deals with is how onerous the process is. Previously, the Canadian Judicial Council itself had to make a recommendation to the minister to have a judge removed. The way it was set up, there was one panel that reviewed the case and another panel that, if it received the complaint, had to pass it on to the Canadian Judicial Council itself. The whole thing involved about 17 chief justices or associate chief justices from courts that were not already part of the process. It diverted energy from solving other problems in the courts, and the process did not necessarily help ensure procedural fairness for judges. This bill fixes that. The review panel itself will now be able to make a recommendation to the minister to relieve a judge of her or his duties. This kind of short-circuits a process that was not necessary and did not guarantee procedural fairness.
All these factors significantly improve the process. However, as my colleague from Rivière-du-Nord explained, this is not the only way to improve people's perception that the justice system is impartial and create a clear separation between the legislative, executive and judicial branches.
I think we also need to look at updating the judicial appointment process. The Bloc Québécois has called for this numerous times by suggesting things like creating a special all-party committee tasked with recommending a new selection process. I have not lost hope. Like my colleague, I believe that human nature is fundamentally good and is capable of doing good things, although I too am sometimes disappointed. Still, I am always willing to work with anyone who is equally willing, and I encourage the government to introduce a bill to review the appointment process.
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- Jun/16/22 1:46:43 p.m.
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- Re: Bill C-9
Mr. Speaker, I am actually going to go through the substance of this bill. I agree with many parts of it. I would say this is one of the least contentious pieces of legislation that we will go through and that we have discussed. However, I do believe that our job, for which we are very well compensated by Canadian taxpayers, is to make sure we understand any legislation that goes through the chamber as it will all have an impact our country. After all, that is why we were sent here by our constituents and that is why we are paid by the taxpayers.
Some members of the government party do not seem to have a substantive grasp of this, as my last two questions pointed out. They were unable to answer even simple questions over the substance of this legislation.
Let us start out on our journey of what happens in a disciplinary procedure. I actually had the privilege of sitting on another body's disciplinary committee and found it to be very important and critical. Just to put this into context before we walk through the process, it is by weeding out those poor actors who are not living up to the expectations of the community that we improve the profession. I must say that, by and large, our justices are amazing people doing great work. They are keeping our cities and our streets safe. They are working to rehabilitate those who have gone off course, and I truly applaud their work. It is not many jobs that place the fate of individuals in one's hands and have that type of stress, so I would like to start by giving my thanks to the justices.
There are those justices who go off course, for whatever reason. They are unable or incapable of performing the duties that they are required to by law. It is incredibly important that when we have those folks off course we either bring them back on course or, in very severe circumstances when their careers simply cannot be salvaged, take them off the bench. For the most part, our justices are great, but it is incredibly important that we keep everyone accountable, from the House to the judges across our country and to the highest offices of the land.
The first step is the issuance of a complaint. Under the old system, the executive director of the Canadian Judicial Council would screen them. Now, they are putting in place a screening officer. It would be a lawyer's job to have those complaints come in and to initially screen them. Having sat on a professional disciplinary board myself, often complaints are just vexatious. They might be from litigants who got a decision they did not happen to like, but the judge did nothing wrong. When someone is in a decision-making capacity, they cannot make all the people happy all the time. Unfortunately, some of that bubbles up into complaints.
I believe that having a professional at the screening desk whose full-time job, as I understand it, is to review these complaints is a great step. I am sure the executive director was doing a good job, but they have multiple other tasks as well. Having a professional screening individual, who is a lawyer, review complaints is, I believe, a great step.
The next step is a very important one. After the initial complaint has been issued, the judge who is the subject of the complaint will get a notification of that complaint. I assume it will be a written notification. They then get the ability to respond with written submissions. At that point, that could be reviewed to see whether it is a legitimate claim or not. That claim could be dismissed on the grounds of the written submissions of the justice.
Once again, this is important. I like this part of the process. As I said, it is incredibly important that we hold everyone accountable so that if there are justices who are behaving inappropriately, we pull them off the bench.
Also very important is that we make this as painless as possible for justices who have done nothing wrong, but are the subject of vexatious or unnecessary complaints. This is obviously a very stressful job to begin with, so if there are vexatious claims it is incredibly important we get them voided and annulled as soon as possible. Throughout this new process, there would be multiple off-ramps where multiple individuals could review a claim and say whether something was a real claim or whether it should be dismissed.
One critical point in the initial review of the complaint by the screening officer is that discrimination and sexual harassment complaints could not be dismissed. I really like that, too. If we look at the numbers, the math and the history of our country, unfortunately sexual harassment claims have been way too often dismissed out of hand as “she said, he said” or otherwise. This would put an absolute right for those complaints to continue on, ensure they are not dismissed out of hand and that they do get a hearing, which is novel.
I have not seen this in other professional disciplinary boards. It may exist, but I have not seen it and it is a great step. One of the lowest prosecution rates we have is for sexual assault and for discriminatory crimes. Putting that in place would put in another safeguard to make sure that where there is discrimination and sexual harassment going on, that claim, if submitted, would always get a hearing. Other claims that may be lesser in nature could be dismissed out of hand, and I support that. This makes a lot of sense.
I also want to bring up that Conservatives agree this legislation needs to be reviewed.
After we get to the screening officer and the reviewing member, the next step would be the review panel. After there has been a complaint, the screening officer has said they believe something is legitimate and the justice has written their submissions back that they still believe this deserves to be heard, it would go to a review panel that would include a member, a judge and a layperson. It is nice that a layperson has been included in a number of these bills. Sometimes it should not always be the profession judging the profession, especially when it comes to judges, because the impact of a judge is well beyond the legal profession.
When it gets in front of the review panel, the review panel would consider the substance of the complaint, any related documents, observations provided by the viewing member, written submissions provided by the judge at issue and those of the chief justice. This would be a new addition in proposed section 99.
The review panel would have the ability to do one of three things. The panel could refer the case to a full hearing, which should be done if it believes the removal of the justice is a potential outcome of the offence: The offence is serious enough that it could warrant the removal of the justice. Another option, or another off-ramp, if the review panel does not believe this is a legitimate concern is to dismiss the complaint. Once again, if a person is innocent, it is another opportunity for them to have their innocence expressed and to have an off-ramp.
The next is to impose alternative sanctions short of removal. At this stage and level, the review panel could put in sanctions and penalties. This does not happen under the current system. It actually needs to be kicked back to the Canadian Judicial Council, which would then decide. This step would be taken away, which would expedite the process and make it that much more efficient.
I will quickly go through the list of possible sanctions that the review panel could put in.
It could issue a public or private expression of concern, a warning or a reprimand. From my experience working with a professional disciplinary committee, I know that oftentimes, if we can get to someone early, someone who may not be a bad person but may have made a mistake, then the opportunity to counsel them, educate them and put them in the right direction is far more productive. They may go on to be a fabulous justice, and this was just one indiscretion, one mistake along the way that they learned from. I think we need to give people, including justices, a second chance where it is merited.
The review panel could order a judge to privately or public apologize or take specific measures, including attending counselling or continuing education. We are in a mental health crisis, and I do not believe that justices are completely immune to it, particularly given the stress of their job. Perhaps counselling is a solution. We may have an extremely talented person who has been going through a difficult time. As a community, we want to do everything we can to help them with whatever issues they may have. Also, they are an extremely valuable part of our community, being a justice, so we want to see the investment rewarded with a great, long career.
The review panel could take any action that it considers equivalent to the above options. With a judge's consent, it could also make an agreement, which is great too because not everything is one size fits all. Overly prescriptive legislation, in my opinion, can often be challenging, so this would give judges the ability to sit with members of the review panel and decide and agree on some steps going forward so that we can get their career back on a path that makes sure they are dispensing justice in a way that the community would be proud of.
With regard to the review panel, if one of the sanctions I talked about was put in place, there would be a review process or an appeal process, which is a little confusing in the legislation, called a “reduced hearing panel”. I would have named it the “appeal panel” for the sanctions or put the word “appeal” in there somewhere, but that is effectively what this is. The justice would have the ability to call for a review of the sanctions that are less important than removal.
I will leave the step about a full removal for the second part of my speech because I do not want to continue with that, but I will note that the reduced hearing panel has an interesting part to it. Judges could go from getting sanctions to being put in a full panel hearing, which could actually lead to a worse circumstance. I have some questions about that and will raise them later on in my speech.
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- Jun/16/22 3:51:02 p.m.
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- Re: Bill C-9
Mr. Speaker, I share my colleague's deep-found concern, empathy and sympathy for all Canadians who are unfortunately addicted to substances across the country. I have certainly seen it in our towns of Port Hope and Cobourg, the havoc it can wreak, not just on the individuals who are addicted to these substances but on their family members. It would give me no greater joy in life than if we could get good people off this terrible stuff.
Getting back to the bill, although it is not contentious, there are several issues. As I said, I brought this up for debate, such as the reduced hearing review panel, which would have a bit of an unusual impact, the way it happens. Our justices receiving rebukes or dismissal is a serious issue. Although it is not contentious, I do want to build this collaboratively and I do believe it merits discussion.
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- Jun/16/22 3:53:18 p.m.
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- Re: Bill C-9
Mr. Speaker, I know the hon. member has a long track record of speaking in this House about the importance of debate. I would call upon those comments. I know her comments are made with the best of intentions, but I still believe this bill deserves additional study and conversations.
Whether it be the appointment of an individual screening officer versus the executive director, or whether it be the exact prescription of the sanctions that are potentially put on justices, including a public rebuke, I think having some parliamentary conversation about that could be important and I think it could improve it. Although not contentious, it is still very important. How we resolve judicial misconduct is an important issue. We saw that in Rona Ambrose's bill and everything she brought to light.
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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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