44th Parl. 1st Sess.
October 21, 2022 10:00AM
- Oct/21/22 12:38:30 p.m.
- Watch
- Re: Bill C-9
I want to begin by entering this debate midstream and responding to some of the comments that I was hearing in the questions and comments period immediately prior to my speech, before shifting into some of the other comments I want to make specifically about this legislation.
A favourite subject of the member for Winnipeg North is legislative timing and the processes of the House, and I must confess that it is a subject I enjoy engaging in dialogue about as well. However, I think he is always selective in his presentation of the story when it comes to the timing or process of legislation. There are a number of different aspects to that. In particular, he is essentially telling my colleague that we should not be debating this bill because he wants the bill to move forward on a certain timeline.
It is important for everybody listening to know that it is the sole prerogative of the government to schedule the legislation it is moving forward for debate in the time slots we have for presenting it, which is the vast majority of the parliamentary calender. The government needs to set aside some time for opposition days, where opposition parties put forward motions, and there is the possibility for members to move concurrence of committee reports. However, those are quite constrained given the time that those debates take. Of course, there is also Private Members' Business.
There are therefore some opportunities outside of government for legislation, policy or motions to be put forward for debate in the House, but the vast majority of the time is available to the government to schedule at their sole discretion. It is the government that makes decisions about which bills are priorities and which bills to put forward. If it wants a bill to advance, then I think it has an obligation to schedule it for enough days of debate so that debate can be brought to a conclusion. That principle applies for Bill C-9, as it does for any other bill.
What we often see the government do is fail to prioritize a bill within its own allocation of time. Then it acts mystified about the fact that it is not moving based on some artificial timeline that it has set. We saw this with Bill C-22, where the government scheduled it for one day of debate, did not schedule it for weeks afterwards and then asked why the bill was not moving forward. Of course, debate concluded the next time it was scheduled, but it would have moved forward faster if the government had chosen to prioritize it.
I detect the same string of argumentation again here from my friend from Winnipeg North. He is keen to see Bill C-9 move forward, apparently, but not keen enough to have successfully lobbied his House leader to schedule this bill and put it forward on a larger number of days. Friday is a very short day relative to the time we get.
I wanted to spend a few minutes on that particular point because I know it comes up again and again, and to pre-empt, in a sense, what I suspect will be a question from my friend from Winnipeg North, although I will say that I did appreciate him tabling a petition relating to Bill S-223 on organ harvesting. I hope that is a bill the foreign affairs committee will prioritize for deliberation and move forward, because as members know, it has been a long time.
Having responded to that, I want to add my voice to the comments by my friend from Battle River—Crowfoot pertaining to the larger issues of trust in our institutions and independence. We are talking today, in the context of Bill C-9, about certain circumstances, events and comments that have impacted trust and faith in the judiciary, and I think we need to affirm the importance of institutions.
We want to see that our institutions are trusted, but we also want our institutions to be worthy of that trust. Sometimes what we hear from some members is a call to trust institutions without being willing to note when there have been significant problems in the conduct of individuals in those institutions. I think the issue raised by the opposition House leader today with respect to interference by the government in a criminal case is another important issue in the ongoing conversation about trust in our institutions and the actions of government. Acts of interference by the government certainly do have an impact on how our institutions are perceived and the degree to which they are trusted. These matters of interference and the independence of institutions are important in their own right, but they are also important in terms of how they contribute to the level of trust that Canadians can reasonably have, in light of the facts, in the institutions that are so critical for holding our public life together.
Bill C-9, the piece of legislation we are debating today, is, on the face of it, a relatively technical piece of legislation, although as members know, every technical piece of legislation has interesting philosophical issues and questions underneath it. The legislation is about making changes to the mechanisms or processes that are in place around judicial discipline, or the discipline of judges. I will just read the summary. It states:
This enactment 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 process for reviewing allegations of misconduct that are not serious enough to warrant a judge's removal from office and makes 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 also applies to persons, other than judges, who are appointed under an Act of Parliament to hold office during good behaviour.
It creates mechanisms by which individuals who have been appointed to hold office, pending “good behaviour”, could be considered not to have fulfilled the standards required around good behaviour and could therefore be removed from office and/or face other mechanisms of discipline. I think the details and mechanics of these mechanisms are extremely important, and are things that will be important not only for the House to consider but for committee to go into further.
After reading through the legislation, one thing I found quite interesting was the presence of a review panel of lay people who, by design, cannot have any legal background. It is always interesting to me when there is this balance where, on the one hand, there are aspects of our judicial system where we demand a certain level of expertise, and then on the other hand, there are certain places where, I think for good, understandable reasons, we demand a lack of expertise formally and in practice as a means of saying that we want some people involved in the decision-making who are non-experts.
I recall a quotation from former British prime minister Clement Attlee, who talked about how he wanted his ministers not to be experts on the subjects they were ministers of. I know that is a bit of a parenthetical question, but it is one that has been debated over the years regarding various kinds of appointments.
In any event, this legislation includes a specific, designated role in the termination process for lay people. I want to note as well the justifications by which a judge could be removed from office. Proposed section 80 says, “For the purposes of this Division, the removal from office of a judge is justified only” for these reasons:
(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.
These are, in some ways, notionally objective criteria, but naturally there is going to be some level of subjectivity in how they will be applied.
There is a history to the consideration of this issue, and there is a history to the discussion of judicial misconduct that touches on some very important and sensitive issues. In my time as a member of Parliament, there has been a fair bit of discussion specifically around the issue of comments by judges dealing with cases of sexual assault. There was a judge who made some very offensive and outrageous comments in the context of a sexual assault trial that he was presiding over. That provoked a lot of conversation about the reality that someone is not rendered all-knowing and all-virtuous simply by the fact that they have received a judicial appointment, and that maybe there is a legitimate place for saying that someone, by their comments or lack of understanding certain things, is no longer fit to be a judge.
How do we preserve the principle of judicial independence, the principle that judges should be making decisions based on the facts of a case and the law rather than making decisions as democratic legislators do, based on other factors, including public opinion? How do we preserve that principle of judicial independence and also say that there are certain societal norms and values that we would like to see reflected in the conduct and statements of judges? There is a point at which a person can go beyond the pale and simply no longer be suited to that position as a function of some of their comments.
There have been a number of ways of getting at this issue. One was from former Conservative leader Rona Ambrose, who put forward a private member's bill, in 2016 or the first half of the 42nd Parliament, that sought to promote judicial education around sexual assault. That is one way of dealing with comments like this: We can say that maybe it is simply about a lack of knowledge and education.
That bill did not pass in Parliament, but a similar bill was put forward and was passed in the 43rd Parliament. As I said at the time, I think we need to recognize the importance of education around these issues, but also recognize that education is not always the full solution. I think there is a lot of data to suggest that when we mandate certain kinds of training courses, for some people it is a meaningful opportunity for them to learn about the matter at hand, but for other people it is just a matter of checking the boxes that are required. Whether it is a meaningful engagement exercise or a box-checking exercise depends somewhat on the way the material is presented, but a lot of it will depend simply on the disposition of the individual and how willing the individual is to substantively engage with the matter at play.
My conclusion is that the proposal from Rona Ambrose about judicial education was very important and worthwhile, but it does not solve the whole problem of either judicial misconduct or potential issues where a judge is making comments in the context of a trial that are very offensive to the victim and to society at large.
That is some of the history of the issue, but there are also other potential issues. This is not just about comments judges make in trials; it could also be about concerns over personal corruption and other things that could be at play in the context of judicial discipline. This is a piece of legislation that, coming out of that long-running public discussion, seeks to make refinements to the processes around judicial discipline.
One thing I would like to note about this discussion is that it presumes the personal fallibility of judges. Maybe it should be fairly obvious, but with the way some of our Canadian debates have proceeded, maybe it is not so obvious that judges are human beings. They have the potential to develop great expertise, great virtue and commitment to their work.
Judges also, like any other human beings, have the potential for grave errors in reasoning, as well as moral errors of various kinds, including misconduct or corruption. They are human beings, are fallible and can make mistakes in various kinds of situations or ways. The heavy criticism of former justice Robin Camp, some of the subsequent discourse and arguments for judicial education the government has supported, and the very existence of this legislation, affirm the reality of judicial fallibility. However, at other times when we are having debates about criminal justice issues and how we respond to particular kinds of charter litigation, the discourse in the House seems to presume something else, which is the infallibility of judges.
It was very striking to me, when I was first elected as a member of Parliament, that we were, on the one hand, dealing with this whole question of former justice Robin Camp and the issues around judicial fallibility, but on the other hand we had members making comments about at the time Bill C-14, which followed the Carter decision of the Supreme Court, where it was repeated that this was a unanimous court decision. Therefore, our goal as a legislature should simply be to interpret the wisdom we were given from this wise council's vision.
I have a great deal of respect for the role the Supreme Court plays in our democracy, but I also think it is legitimate to disagree with decisions that the courts have made. Part of the process of democratic deliberation is recognizing that, if judges can be personally fallible regarding their own conduct, fallible in the sense of making inappropriate comments in a sexual assault case, then they can also be fallible in there determinations about the appropriate sentence and balance of rights that emerge from a series of arguments about how to interpret given facts in light of the charter.
The fact there is diversity in courts of dissent underlines the potential fallibility of judges, and I think we should, in our Canadian democratic discourse, seek to affirm the importance of judicial independence, and the respect that is owed to that institution, while also recognizing that judges make all kinds of mistakes and that Parliament has a role to deliberate about substantive questions of justice and human dignity and to engage in a constructive and healthy back and forth when it comes to decisions, legislation and how we respond to that.
I could cite other cases that brings this issue to the fore, but I see that I am up against my time to some extent. Therefore, I am grateful for the opportunity to address the issues around Bill C-9, to share a bit of the history, and to underline that, for me, one of the lessons coming out of this is to let us acknowledge that judges are human beings. They have an important job to do, but it is legitimate to disagree with and debate the determinations that are made, and to use constitutional tools that affirm the rights and the role of the legislature when it comes to establishing and advancing common values that are determined through democratic deliberation.
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- Oct/21/22 12:38:30 p.m.
- Watch
- Re: Bill C-9
Mr. Speaker, it is a great pleasure to have the opportunity to speak today on Bill C‑9, right after my friend, the member for Battle River—Crowfoot.
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- Oct/21/22 12:59:30 p.m.
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- Re: Bill C-9
Madam Speaker, on the final question of when I would like to see this go to committee, I think it will depend on the wishes of other members speaking to the bill. I clearly do not intend on speaking to it again having spoken to it now, which is the way this place works. Members only speak once to a bill. I have had the opportunity to do so, but there may be other members who wish to have an opportunity too. It is incumbent on the government to schedule bills in accordance with priorities.
I will respond to this idea that there is a heavy legislative agenda this fall. Let us go back over the last two years while this general concept of shifting the process has been under discussion. We had a prorogation of Parliament. We had the suspension of Parliament much beyond what was warranted by the pandemic. We had an early election, which cancelled a bunch of legislation that was working its way through the process.
These are the things the government has to be accountable for. It creates an artificial urgency and then blames the opposition, which is not reasonable.
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- Oct/21/22 1:02:13 p.m.
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- Re: Bill C-9
Madam Speaker, the member mentioned what some of his legislative priorities would be for discussion in the House. We are both members of opposition parties, and it is the government that decides which legislation to present and bring forward. I would have opposed the early election, the prorogation, the grand suspension during the pandemic and some of these other circumstances that have made it more difficult to bring forward and advance some of these legislative items.
I would also say that I do not quite agree with the framing of parties speaking to this or not. I think this is something that his party has championed as a concept. We all come into this House, fundamentally, as individuals. Individuals will wish to speak to legislation or not, depending on what the issues are that they want to raise. I think it is clear from my intervention that there were some specific things I was interested in raising and highlighting during this discussion. Hopefully, that intervention is helpful to the House.
How many colleagues from other parties want to do this? Personally, I do not know. It is important for individuals to have those individual rights as members to speak to legislation affirmed on an individual basis, not on a party basis.
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- Oct/21/22 1:04:27 p.m.
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- Re: Bill C-9
Madam Speaker, there are aspects of the House calendar that should reflect the rights of individual members to bring forward issues of concern, but there are also many aspects of the House calendar that are shaped through dialogue among House leaders and an effort to have give-and-take in negotiations. We all understand that there are some tools available to the opposition that the opposition sometimes tries to use in order to engage with important priorities to create some degree of balance in this place between government and opposition.
It is a legitimate conversation that the member raises about possible reforms to Standing Orders. Any changes to the Standing Orders need to preserve an appropriate balance between government and opposition. There may be ways of shifting that balance while preserving it.
When this issue was raised at the procedure and House affairs committee two Parliaments ago, Conservatives said we should have the discussion, but we want to have the discussion with the recognition that changes to the Standing Orders should proceed on the basis of agreement among parties and not be unilaterally imposed by the government. That is an important principle for Standing Orders reforms, so I will say yes to the discussion, but it needs to proceed in a collaborative fashion.
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- Oct/21/22 1:06:52 p.m.
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- Re: Bill C-9
Madam Speaker, it is a very important question. Judges obviously have to think about the wider aspects of the context. I profoundly disagreed with that decision on multiple levels. I also think decisions like that just underline the importance of the legislature stepping up and asserting its role.
At times, when it has been convenient, the government tries to treat the Supreme Court as if it is some infallible body protected from error and that it is simply our job as legislators to understand the minds of our Supreme Court and work things out as directed. Sometimes, that is the tone of the rhetoric that we hear from government members. Not only is that not philosophically defensible, but that is not in keeping with our constitutional tradition.
We have tools, including the notwithstanding clause, whereby the legislature can engage in dialogue with the courts in a way that disagrees and says that the legislature thinks the court got it wrong. That back-and-forth needs to proceed on the basis of rule of law of course, but it is important for us to do our job as legislators and not buy into this false narrative of judicial infallibility.
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