44th Parl. 1st Sess.
December 9, 2022 10:00AM
- Dec/9/22 10:22:23 a.m.
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- Re: Bill C-9
Madam Speaker, I thank the minister for his speech. I always enjoy hearing him speak.
He went on at length about how Bill C‑9 will maintain the public trust, and he also talked about the separation of powers among the legislative, executive and judicial branches, which is just as important and is also maintained in Bill C‑9.
However, if there is one thing that makes us question that balance upon which the public trust relies, it is the judicial appointment process that precedes the potential removal of a judge from office, which one hopes would be a very infrequent occurrence.
I would like the minister to comment on the possibility of revising the appointment process to make it as non-partisan and transparent as possible, thereby bolstering public confidence in the judicial system.
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- Dec/9/22 10:42:54 a.m.
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- Re: Bill C-9
Madam Speaker, I thank my hon. colleague for his speech.
I had the opportunity to speak at second reading of this bill, and I listened to the speeches given by my other colleagues.
One point that kept coming up from the Conservative side was about protecting victims. It was pointed out that, in the review process, victims' views were perhaps not sufficiently taken into account in cases where a sanction was warranted, but not necessarily removal.
However, an amendment adopted in committee would allow for victims to at least be notified of the reasons why their complaints were not successful.
Does my colleague think this is a step in the right direction? Could Bill C-9 not have done a little more to protect victims?
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- Dec/9/22 10:58:28 a.m.
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- Re: Bill C-9
Madam Speaker, I thank you. I was not sure whether you were going to give me a few seconds to start my speech, which I will be pleased to continue after question period.
Since the end of this parliamentary period and the holidays are approaching, I want to take a few moments to recognize a few people. We will, of course, recognize those who work with us in the House in the coming week, but I want to take this opportunity to thank the members of my team, which is something that we perhaps do not do often enough. The work of an MP is only as good as the work of those who support them in their riding office. I therefore want to thank Dave, Diane and Hugo, as well as our new recruits, Philippe‑Olivier and Huguette, for their great work, unwavering support and top-notch service.
That being said, Bill C-9, which is before us today, seems to have almost unanimous support. I had the pleasure of rising to speak to this bill last June. Generally speaking, the questions asked in the House as part of the debate were not so much about the bill itself as they were about the broader aspects of the justice system review, which shows that the bill's content is not very controversial.
In fact, the bill—
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- Dec/9/22 11:25:20 a.m.
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Madam Speaker, on Tuesday, the Chief Justice of the Quebec Superior Court, Marie‑Anne Paquette, criticized the fact that many trials have had to be postponed over the past few months because the Minister of Justice is taking too long to appoint judges. In one judicial district in the Montreal area, no hearings could be held for a month because there were no judges available. When the minister's office is asked about this, it responds that the appointments will be made in due course. Will the minister admit that due course has come and gone?
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- Dec/9/22 11:26:25 a.m.
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Madam Speaker, when Justice Paquette tells the government that it needs to hire a dozen judges, the government replies that it is short just nine. It has appointed only 10 judges since the beginning of the year. At this rate, it will take another year to fill the remaining positions. I cannot say for sure, maybe the Liberals are running out of names on the Liberalist, but the problem is that this is undermining the public's trust in the justice system. The system simply does not have the capacity to respond anymore. When will the Liberals take the judicial vacancy situation seriously?
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- Dec/9/22 12:13:34 p.m.
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- Re: Bill C-9
Madam Speaker, I understand that I have about 18 and a half minutes left. I will do my best, but I cannot promise that I will use up all of that time. I am just pointing that out for the benefit of the person who is speaking next.
Now that all the Christmas wishes and greetings have been sent, I want to come back to Bill C-9, which I spoke about in June, as I mentioned. It will come as no surprise to anyone that the Bloc Québécois will support this bill at third reading for a number of reasons. One of them is that the community has been calling for this bill for quite a long time. It has been calling for a review of the system for removing judges who engage in conduct unbecoming of the profession.
This bill will also help shorten the process and, incidentally, reduce the cost associated with assessing judicial misconduct, while still maintaining sufficient procedural equity that a judge who is facing sanctions can make their case and ultimately exercise their right to full answer and defence. In a way, this bill is streamlining a process that, in the past, was unfortunately inconsistently applied and abused, as in the case of Judge Girouard, who has been mentioned quite a bit in the House. It took nearly a decade to come to a final decision on the acts he was accused of.
It is worth mentioning that this bill introduces a mechanism to deal with less serious complaints that would not necessarily require removing a judge who has committed wrongdoing. This mechanism would still allow the judge to be punished for their actions. It is no longer a purely black-and-white system where there are only two possible outcomes to a sanction: either to reject the sanction outright or to remove the judge from office, which is the ultimate sanction for misconduct. Under the old law, there was no in-between. The new bill allows for a slightly fuller range of options, with different shades of grey—not that I am naming a particular book—in terms of the sanctions that can be imposed.
Realistically, we cannot expect Bill C‑9 to change much on a day-to-day basis, because not that many judges face possible sanctions, which is a good thing. My colleagues have said that about eight cases have come under the microscope. This is not something that happens very often.
However, the bill will affect the way people perceive the justice system. If a judge is put under the microscope, we can expect the process to elicit far less criticism and complaint from the public, because it will presumably be much more effective.
As I said, we will vote in favour of the bill. Based on what my colleagues have said, most if not all members of the House will do likewise. The only real criticism we heard during members' speeches had less to do with the content of the bill than with the timeline of its passage, which should take place in the coming days.
This is not our first time studying a bill like Bill C-9 in the House. We saw a previous version, Bill C-5, which ended up dying on the Order Paper because the government decided to call a basically useless election in August 2021, so again, this is not the first time we are indirectly talking about Bill C-9 in the House. However, there is so much consensus on it that, hopefully, this will be the last time.
Bill C-9 upholds a principle that is absolutely critical in our democracy, namely, the principle of security of tenure for judges. This principle is set out in section 99(1) of the Constitution. I think section 99(1) bears quoting.
It states:
...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.
With respect to this aspect, Justice Dalphond, who is now a senator, spoke to Bill S‑5. He said the following:
By imposing a process that makes it the responsibility of judges, first and foremost, to deal with allegations of misconduct against a judge, the Judges Act protects judges from acts of intimidation or retaliation by the executive power or litigants. In addition, since the act provides for parliamentarians to exercise their constitutional power to remove a judge only after having received the report and recommendation of the council in this regard, Canadians can rest assured that this measure, intended to be exceptional, will only be taken when it is truly justified.
This essentially separates the different branches of democracy, namely the executive, legislative and judicial branches, by ensuring that if a judge is removed, it is not for purely political reasons, for example.
Although the current system for removing judges in cases of wrongdoing is recognized as one of the best in the world, there was room for improvement. I will name a few of the drawbacks that have been identified.
As I mentioned, the current process can be extremely long. Along the way, there is always the possibility of countless appeals and judicial reviews. Under the act, the review panel was seen as a sort of administrative tribunal that opened the door to using the regular court system, meaning filing an appeal, reviewing a decision or applying for a judicial review. As a result, some cases dragged on for over a decade.
One of the problems that was identified is that a judge who may be at fault could have a financial interest in dragging out the proceedings with stalling tactics, because the judge still gets paid while the process is underway. They can keep contributing to their retirement fund, so the benefits continue to add up. The judge therefore has an incentive to make sure the final decision on their alleged conduct does not come out too quickly.
That is something that has been corrected through proposed section 126 of the new bill. Proposed subsection 126(1) states:
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.
Should the complaint be rejected, the judge could retain all benefits associated with their office. From now on, pension and benefits accumulation ceases as of the day on which notice of the decision is given. That removes any incentive for a judge to draw out proceedings.
As I also mentioned, one of the benefits of the bill is that it now offers a wider range of sanctions than was available under the old act. The act did not, for example, allow for mandatory sanctions, so it made them seem like half-measures. The parties could make them mandatory by mutual agreement, but there was no real possibility of imposing anything. That is no longer the case. There is now a range of different measures.
Let me read some more of the bill. Proposed section 102 of the new bill provides as follows:
If the review panel does not refer the complaint to the Council under section 101, it may dismiss the complaint or take one or more of the following actions if it considers it appropriate to do so in the circumstances:
(a) issue a private or public expression of concern;
(b) issue a private or public warning;
(c) issue a private or public reprimand;
(d) order the judge to apologize, either privately or publicly, by whatever means the panel considers appropriate in the circumstances;
(e) order the judge to take specific measures, including attending counselling or a continuing education course;
(f) take any action that the panel considers to be equivalent to any of the actions referred to in paragraphs (a) to (e);
(g) with the consent of the judge, take any other action that the panel considers appropriate in the circumstances.
It uses the word “order”. That means it would be mandatory, and the panel has a lot of latitude.
There are plenty of measures that can be taken to improve the quality of a judge's work in the future, without having to resort to the extreme punishment of removing their right to sit on the bench. The bill improves what can be done within the system while also reducing the burden of what is required to make the review process work.
In the past, under the Judges Act, no fewer than 17 judges might be needed to convene a review panel to examine a case. There is currently a shortage of judges. The courts are operating at a slower pace. If a judge were to be accused of something, we cannot afford to take 17 judges out of the system when there is a shortage everywhere.
Under the new version of the act, a panel can be formed with slightly fewer judges than what was required in the past. The bill also creates an internal appeal process, which will limit reliance on external courts and therefore limit the possibility of invoking the legal system for disciplinary matters involving judges.
I am making an aside on this aspect because the issue of tying up courts and judges cannot be solved by Bill C‑9 alone. We had a discussion about Bill S‑4 and the possibility of making greater use of virtual tools to hear cases. This debate may continue in the days to come. That would help, but even if we add the option of virtual hearings, if there are no judges to hold these hearings, it does not matter that platforms like Zoom are available because the system will not work.
That is why, in addition to Bills C‑9 and S‑4, it is important that the Minister of Justice quickly appoint judges to fill vacancies. Currently, there are nine vacancies. The chief justice of the Quebec Superior Court is even recommending that a dozen judges be added to those currently sitting. This would increase the minimum number of justices that can sit on the Quebec Superior Court. Let us hope that this message will be heard by the Minister of Justice.
Basically, Bill C‑9 is about improving people's trust in the judicial system. However, as I said, it may be relatively limited in scope, because most people will not read the contents of Bill C‑9. If a judge were to commit a wrongful act, people might be interested in this new process that exists to reprimand judges.
Beyond the possibility of reprimanding a judge who has already been appointed, if we really want to improve public trust in the system, we must also address the issue of judicial appointments. Some work has been done. The Liberals have mentioned that they are going to abandon the infamous Liberalist, but that may not be enough. The process is still potentially partisan. The power to select and recommend who will be appointed as a judge is still in the hands of the executive branch of government.
That is why the Bloc Québécois recommends creating a truly all-party committee tasked with evaluating candidates for judicial positions in courts under federal jurisdiction, such as superior courts.
This is what Albania did in hopes of joining the EU. It had to change a lot of its judicial practices to meet EU standards and bolster public confidence in its institutions.
At present, Albania's justice minister has no power over judicial appointments. An independent committee is in charge. The justice minister's primary responsibility is to oversee sound administration of the courts. The minister monitors statistics to ensure that hearings are progressing without wait lists or undue delays, but is not actually responsible for appointing judges. That allows for true separation between the powers of the executive and the judiciary. The House may consider following suit as it develops a different judicial appointment system.
It is on this wish that I will end my speech. Bill C‑9 is a good thing. It is an improvement that has long been called for. It may have taken a long time for it to come to fruition, but we commend the initiative nonetheless. There is still work to be done on the judiciary. The Bloc Québécois will always be a very approachable partner when it comes to improving the legal system. I think that begins with a review of the judicial appointment system.
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- Dec/9/22 12:31:27 p.m.
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- Re: Bill C-9
Mr. Speaker, I mentioned Albania because we had a discussion with Albania's justice minister. He said that the process for selecting judges is not just the responsibility of the government. It is an independent committee that is in charge of appointing judges.
The parliamentary secretary mentions that there is no risk of a political appointment being made by the government. More than that, what matters is that there is no appearance of a risk. That is what a committee made up of parliamentarians from all parties represented in the House would allow.
I think that is a solution that would clearly improve public trust in the process and at least deserves to be studied. We are not asking for more than that. I more than welcome the opportunity to have this debate at the Standing Committee on Justice and Human Rights.
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- Dec/9/22 12:33:12 p.m.
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- Re: Bill C-9
Mr. Speaker, I thank my colleague for his very specific and interesting question.
I reviewed the work that was done in committee, the recommendations that were retained and those that were not. When we look at the proposed structure, we see that there are nevertheless many possible appeal processes.
From the very first level of appeal by the review panel, there is the possibility of appealing to the reduced hearing panel. That is the first option. Next an appeal can be lodged with the appeal panel, which is set out in the bill. Thus, there is a second possibility of appeal, and after that, a third, but only by leave of the Supreme Court. The process already provides for three stages of appeal. I think that should be enough to respect procedural guarantees and fairness.
There are already three levels of appeal as is the case in regular courts. Would it be appropriate to add another to ensure procedural fairness? I believe that, with the process that has already been put in place, there are sufficient guarantees to ensure respect for the rights of judges under review.
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- Dec/9/22 12:35:48 p.m.
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- Re: Bill C-9
Mr. Speaker, I am tempted to talk about a bunch of things that stand out from that question.
With regard to the review process referred to by the hon. member, one of the amendments adopted in committee was that, if the complaint is dismissed, the person who made the complaint should at least be informed of the reasons for dismissing it. This implies that a minimum of work must be done to explain why the complaint is not being pursued any further. This seems to have been a concern in the case my colleague mentioned.
As for partisan appointments, having a transparent committee to select judges is already a step in the right direction, in order to ensure that judges are not always Liberal leaning, for example. This is what we have unfortunately seen in the past with the “Liberalist”.
However, if we want to go a little further, there is one thing we must also consider: What happens to judges once they have completed their term on the bench? Many of them go to large firms, but others go to work for lobbies or for groups that are a little more partisan.
Perhaps we should also review the possibility for judges, at the end of their term, to work in the private sector in businesses, groups, companies that may be considered more politically oriented, for example?
There is work that could be done throughout a judge's life, from appointment to retirement, to ensure greater impartiality, generally speaking, and greater public confidence in the system.
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- Dec/9/22 12:38:27 p.m.
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- Re: Bill C-9
Mr. Speaker, if, every time we talk about reviewing the judicial appointment process, the government basically systematically closes the door on it when all we want is for the issue to be examined or considered, then, of course, that will likely not help with transparency and the public's confidence in the justice system.
It is important to remember that judges rise through the courts. When a judge is appointed to a superior court, it is possible that they will one day serve on the Supreme Court, but it is rare for a Supreme Court justice to be appointed without first being appointed to a lower court.
Taking a bottom-up approach would involve starting with the appointment of judges in the superior courts of Quebec and the provinces, and reviewing that process from the bottom up would likely lead de facto to better confidence in the rest of the process and in the path that judges may take to the Supreme Court.
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- Dec/9/22 12:40:03 p.m.
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- Re: Bill C-9
Mr. Speaker, I think the member's question is exactly why people are cynical. That is the issue. They want us to identify people and they say that we should not question the judicial system because that could undermine it. I say we must question it. There is always room for improvement.
I do not believe for a second that the best way to bolster public confidence in the judicial system is to close our eyes. I think it is better to be as transparent as possible and as open to improvement as possible. That does not seem to be an approach the Liberals embrace.
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- Dec/9/22 12:52:03 p.m.
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- Re: Bill C-9
Madam Speaker, I thank my colleague for his speech and for the work that he did in committee that he mentioned in his speech. It is always interesting to see what arguments were presented there.
First, for the record, I want to confirm to my colleague that I am not suggesting that there are judges who are impartial because of the appointment process, but rather that we must ensure that the appointment process itself does not give the appearance of partiality.
With regard to the addition that he wanted to make to the bill of the possibility of appealing to the Federal Court of Canada, we know that not all appeals in the justice system are appeals as of right. Did my colleague want the appeal to the Federal Court to be an appeal as of right?
If so, would that not be opening the door to unduly lengthening the proceedings?
If he was talking about an appeal with leave, which is mostly the case at the Supreme Court, one must, at the very least, show that there are grounds for appeal, rather than just using this as purely dilatory measure.
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