44th Parl. 1st Sess.
December 9, 2022 10:00AM
- Dec/9/22 10:30:58 a.m.
- Watch
- Re: Bill C-9
Madam Speaker, this legislation would reform the process by which the Canadian Judicial Council undertakes reviews of complaints brought against judges for alleged misconduct. The judicial complaints review process was established more than 50 years ago, in 1971. It has a number of problems in that it can be timely, cumbersome and costly. These problems have been publicly recognized by the Canadian Judicial Council, which consists of 41 members, including all chief justices and associate chief justices of federally appointed courts. For years, there have been calls to reform the process.
The process, as it currently stands, can involve up to three layers of judicial review: the Federal Court of Canada, the Federal Court of Appeal and, upon leave being granted, the Supreme Court of Canada. That process can take years and, in some cases, even as long as a decade. This bill seeks to address that by streamlining the process, although, I would submit, it does so somewhat imperfectly from the standpoint of ensuring procedural fairness. Nonetheless, the process the government has come up with is supportable, notwithstanding some shortcomings that Conservatives raised at committee.
The bill also seeks to enhance transparency by requiring that the Canadian Judicial Council, in its annual reports, to publish the number of complaints and how those complaints were resolved.
The bill would enhance accountability. Under the current process, where a judge's misconduct is not at a level that would warrant their removal from office, such cases can be settled behind closed doors with really very little transparency. This bill would change that by providing for mandatory sanctions. Those sanctions could range from requiring the judge to issue an apology to requiring the judge to undertake counselling or professional development training with regard for the nature of the misconduct and circumstances of the case.
The bill, on the whole, would protect the independence of the judiciary, which is vital to our democracy and integral to the rule of law, which is something that, unfortunately from time to time, the current government has not respected. In addition, with some imperfections, the bill would maintain procedural fairness, both from the standpoint of the complainant as well as for a judge whose conduct is being questioned by way of a complaint.
It is good that this bill has been brought forward. It is a bill that is the product of consultations that took place in 2016, the substance of which have been incorporated into this bill, on which there is generally consensus. However, I will say that it did take the Liberals five years after those consultations ended to get around to introducing a bill. Moreover, when the government finally got around to introducing a bill in May 2021, it went nowhere because of the Prime Minister, who called a completely unnecessary and opportunistic election. Following the unnecessary election, the Liberals reintroduced the bill in the Senate last November and then suddenly decided one month later to pull the bill from the Senate.
The Liberals then reintroduced the bill, Bill C-9, last December in the House and proceeded to let it languish for months on end. For six months, they sat on their hands only to finally bring it up for debate at second reading in June, just before the House rose for the summer, and here we are at Christmas still dealing with the bill.
I highlight the process to underscore how dysfunctional the Liberal government is. Here, we have a bill around which there is general consensus, and it has taken the Liberals three bills to proceed. While the bill would enhance public confidence in the judicial system, and judges are central to that system, the same cannot be said more broadly about public confidence in our justice system, as a result of the policies of the Liberal government, policies and actions for which the government gets a failing grade.
For the Liberals, it is always about the criminals and never about the victims. This, after all, is a government that allowed the position of victims ombudsman to be left vacant for nine months. Finally, in September, the Liberals got around to filling that vacancy. It was not the first time they left that position vacant, the federal advocate for victims, the ombudsman. They left the position vacant for nearly a year in 2017 and 2018. By contrast, when it came to the prisoners ombudsman, when that position became vacant, the Liberals saw fit to fill it the very next day.
That is quite a contrast. When it comes to an ombudsman for prisoners, the vacancy was filled the next day. When it comes to the ombudsman for the rights of victims, the government has presided over leaving that critical position vacant for nearly two years out of the seven years it has been in office.
This is a government that just passed Bill C-5, the do-no-time, soft-on-crime bill, as it has come to be known, which eliminates mandatory jail time for serious firearms offences and for serious drug offences, including trafficking and production of schedule 1 drugs such as cocaine, fentanyl and crystal meth. This is at a time when we have an opioids crisis. When 21 Canadians a day are dying as a result of that, the government's priority is to let those who put that poison on our streets serve their sentence at home, instead of behind bars where they belong.
That is a government that has failed to engage in that dialogue, which is so critical between Parliament and the courts. The minister failed to respond to the Supreme Court's decision to strike down the very reasonable and just law passed by the previous Harper government to give judges the discretion to apply consecutive parole ineligibility periods for mass murderers, including the mass murderer responsible for the murder of my constituent Brian Ilesic. His parents, Mike and Dianne, are very deeply troubled by the inaction of the minister, and I am glad that today he at least acknowledged he was open to reviewing that decision. That is the first time he has said that.
In closing, I will just say that the bill is a supportable bill, but it is cold comfort for victims and their families who, time and again, have been abandoned by the government.
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- Dec/9/22 10:41:56 a.m.
- Watch
- Re: Bill C-9
Madam Speaker, the courts have not struck down minimum sentences across the board. Mandatory jail times have always been a part of our Criminal Code, or have been for many decades, and continue to be. In fact, none of the provisions, I believe, in Bill C-5 were struck down by the courts, certainly not by the Supreme Court.
It was a choice made by the government to remove those mandatory jail times because, for the government, it is always about putting the rights of criminals ahead of those of victims. The Liberals provided little rationale on why they picked those specific provisions, which involve serious firearms offences and serious drug offences.
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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 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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