44th Parl. 1st Sess.
December 9, 2022 10:00AM
- Dec/9/22 10:26:39 a.m.
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- Re: Bill C-9
Madam Speaker, the Minister of Justice would be aware that at the justice committee, Conservative members put forward a common-sense motion. It was a proposal to amend Bill C-9 to include an automatic right of appeal to the Federal Court of Appeal, not the trial court, and that was rejected by the other members of the committee. They argued that the Supreme Court of Canada is already there for appeals. However, we know that is only a faint hope, because it is unlikely that any case coming out of the CJC will ever make it to the Supreme Court of Canada. I would like his comments on that.
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- Dec/9/22 10:27:25 a.m.
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- Re: Bill C-9
Madam Speaker, indeed, this is probably one of the reasons we are here.
I mentioned the case of Justice Girouard over the past number of years, in which there were a number of judicial reviews to the Federal Court and appeals to the Federal Court of Appeal from those judicial reviews. It ended up ballooning the process in terms of cost and rendering the process much more complex, and it took years.
I know that serious discussions were undertaken by the CJC and the chief justice discussing the mechanism, and appeals to the Federal Court were considered. What the judges came up with was a transparent process to hear and provide for appeals within the system in a linear fashion with, finally, the possibility of seeking leave to appeal to the Supreme Court.
I think the hon. member is correct to say that leave to appeal to the court is not meant to be frequently obtained, but there has been a sufficient degree of attention paid within the linear system of vetting, hearing and rehearing cases so that there is a sufficient degree of protection put in the system for someone to challenge a first ruling and move from there. We have built a good balance that maintains efficiency and—
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- Dec/9/22 10:45:21 a.m.
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- Re: Bill C-9
Madam Speaker, I am here to talk about Bill C-9, an act to amend the Judges Act.
In the end, the Michel Girouard case was not even about whether Justice Girouard had purchased cocaine from his former client, a known drug dealer. The Canadian Judicial Council panel hearing the case found that there was not enough evidence on a balance of probability to find that the judge had been dealing in drugs.
There was a video recording, which, unfortunately for him, captured an exchange between him and his client, with money going one way and a package going the other. The judge said that exchange was not about drugs; it was about pornography. Clearly, this judge had a bad habit or maybe two bad habits, but I am willing to concede to the panel's finding that there was no drug dealing. In the end, it was the cover-up that torpedoed this judge's short time on the bench.
The panel's report reads, “[He] deliberately and intentionally attempted to conceal the truth during the hearing.” After that, they recommended his removal. However, Judge Michel Girouard of the Quebec Superior Court was a very good judge. He was certainly a very smart judge. He was a very competent lawyer too. He had a good track record as trial counsel, and he knew his way through the legal court system probably better than anybody did. He used the experience he attained during his career as a lawyer to his full advantage.
Here is a short history. In 2010, he was appointed to the court. In 2012, there was a complaint launched against him relating to drug dealing. In 2014, the Canadian Judicial Council undertook a full investigation, and at the end of that, it recommended his removal to the minister of justice at the time.
I will give a brief explanation of how the Canadian Judicial Council works.
It is a body of judges that is appointed pursuant to the provisions of the Judges Act to review judges' complaints against judges. This is judges judging judges. The idea behind the structure, as with all administrative bodies, is to take specialized cases out of the regular court system. The idea is to be more fair, more transparent and more efficient.
Generally, this works, but it can be abused, as it was in the Girouard case. That case was dragged through the Canadian Judicial Council appeal processes and then through the court system under judicial review procedures. All of these tools were available to Justice Girouard under the governing legislation, the Judges Act, which we are reviewing today. Along the way, he found some courts that were actually sympathetic to his position. The case went back and forth, and it finally ended up at the doors of the Supreme Court of Canada in 2019, which refused to hear the appeal.
The end of the story is that Justice Girouard resigned, mercifully for all of us, but not until after eight years of dragging the case through the court system while he had full pay, even though he did not have to show up for work. His pension also accrued during that time.
Although the Supreme Court of Canada decided not to hear this case, the chief justice had this to say, not specifically about this case but generally: “If the judge has to be removed, he has to be removed quickly and without too much cost to society. We need reforms. Parliament should find a way to make sure that these matters don’t drag for too long and aren't too expensive.”
That is why we are here today to review Bill C-9, an act to amend the Judges Act. I do not want to leave the impression that Bill C-9 is Parliament's response to the Girouard case. It is not. I took up that case only because it is high profile and a good example. It illustrates why reform is necessary.
The Canadian Judicial Council is busy with many files. It oversees the work of almost 1,200 federally appointed judges. The vast majority of those judges are very competent, fair, judicious, respectful of the people who appear before them and respected by their profession and in their communities. The CJC's judicial conduct oversight role is part of its general mandate to keep the judicial system efficient, uniform and accountable, and in large part, it does that work effectively.
I do not want to get into the details of Bill C-9; we do not have time for that. A general overview is that it expedites the inquiry process and simplifies it, while also keeping it fair to judges. It also aims to secure the public's confidence in our court system. Importantly, it keeps cases out of the court system.
The council's recommendation to the Minister of Justice will be the final decision, except in the case of an appeal to the Supreme Court of Canada. That is a faint hope because most applications for leave to appeal to the Supreme Court are turned down, as in the Girouard case. It did not make the cut. Most cases coming out of the Canadian Judicial Council, I am sure, would not make the cut to the Supreme Court of Canada.
Not everyone is going to be happy with that. In the Girouard case, for example, which made it to the federal trial court in its long and winding history of eight years, the judge had something to say in response to the Canadian Judicial Council's arguments that only the council had any jurisdiction over the oversight of judges and that the Federal Court had no jurisdiction at all. This is what the federal trial judge said:
It is undeniable that a report recommending the removal of a judge has a serious impact on that judge, professionally and personally, and on his or her family. It is inconceivable that a single body, with no independent supervision and beyond the reach of all judicial review, may decide a person's fate on its own.
If the judge who wrote that paragraph were sitting here today, he would be voting against Bill C-9.
At committee, as stated earlier in debate with the Minister of Justice, the Conservative members of the justice committee put forward a common-sense motion to amend Bill C-9 to allow for an automatic right of appeal to the Federal Court of Appeal. This is not to a trial court, where things could get bogged down, but directly to the Federal Court of Appeal. Unfortunately, the other members of the committee voted against that.
All that said, despite that flaw, which I think is significant, this legislation is good and sound. It stands in line with other judicial reform legislation of recent years and we support it.
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- Dec/9/22 11:25:47 a.m.
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Madam Speaker, I thank my hon. colleague for her question. I attended the Hon. Chief Justice Marie‑Anne Paquette's swearing-in ceremony a week and a half ago in Montreal. I can confirm that the bar association and the chief justices are very pleased with the quality and diversity of the people that we have appointed to the Quebec Superior Court. We appointed 10 people to that court this year, and there are still nine positions to fill. We are working on it. I hope to have good news soon.
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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 12:32:36 p.m.
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- Re: Bill C-9
Mr. Speaker, at the justice committee, the Conservative members put forward what we thought was a common-sense proposal to amend Bill C-9 to allow one appeal directly to the Federal Court of Appeal, not to the trial division where things became bogged down with the Girouard case. This proposal was made because we thought there should be some judicial overview on the work of the Canadian Judicial Council.
I wonder if my colleague would have a comment about that.
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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 12:50:13 p.m.
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- Re: Bill C-9
Mr. Speaker, my colleague and I serve on the justice committee together. I see that the NDP members are claiming credit for putting forward a motion around the Federal Court of Appeal. It is true that they did that, but so did the Conservatives. We supported that amendment. Because he and I are in full agreement on it, I suppose it would not really make a lot of sense for me to ask him a question about that.
Therefore, I will ask the member this question a little more generally. Does he feel that with Bill C-9 the independence of our judiciary, which is so crucial to our justice system, would still be fully protected?
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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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