44th Parl. 1st Sess.
June 15, 2023 10:00AM
- Jun/15/23 4:25:41 p.m.
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Madam Speaker, I am surprised and shocked that the debate on something as fundamental as the way this House operates is now going to be cut off. If we are going to have a hybrid Parliament, we need to come to an agreement on how it is going to operate.
I recall many years ago that Chuck Cadman, a member of Parliament for Surrey, in my area, came here to vote even though he was undergoing cancer treatment. That is how important it was for him. Nowadays we see people voting on the app just because it is more convenient for them. Often when there is a vote right after question period, a whole lot of Liberal members of Parliament dash out of here because they are going to vote on the app.
This is worthy of a full debate, but debate is being cut off right now. I do not think that is appropriate.
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- Jun/15/23 7:11:16 p.m.
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Madam Speaker, my hon. colleague referenced Chuck Cadman, whom I knew. He was from my neck of the woods, and I know that when he was seriously ill, he came here to vote, but an alternative option would have been for the government side of the House to have paired somebody with him so that he would not have had to go through the trouble and pain and inconvenience of travelling.
Is that a way forward for exceptional cases that make it impossible, or nearly impossible, for somebody to travel here?
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- Jun/15/23 9:48:01 p.m.
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- Re: Bill C-9
Madam Speaker, we agree that it is high time that Bill C-9 becomes law.
I am disappointed to hear that the government is rejecting an amendment put forward by the other place that we think is very important, and that is the right to appeal to the Federal Court of Appeal.
Right now Bill C-9 says that there can be an appeal to the Supreme Court of Canada, but that is really just a right to apply for leave to appeal, and very few applications for leave to appeal are actually approved by the Supreme Court of Canada. It is something under 10%. Witnesses at committee have said that this is really just a faint hope for a judge who is perhaps going to lose his livelihood, reputation and legal profession. In the opinion of those experts in appeals, there should be one real appeal, and it should be to the Federal Court of Appeal.
I wonder what the minister would say.
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- Jun/15/23 9:57:39 p.m.
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- Re: Bill C-9
Madam Speaker, it is an honour for me to rise here this evening to engage in the debate on Bill C-9, a bill to update the Canadian Judicial Council review process for judges’ conduct.
The last time I spoke to Bill C-9 was in December 2022, when it was here for third reading. At that time, I used an example of a case that had gone through the court system. I think the Minister of Justice referred to it as well. I think we are talking about the same one.
It was an example of a judge who abused the process to his own advantage. In that case, there had been allegations of misconduct outside of the courtroom. There was nothing about the judge's abilities in the courtroom. Of course, the judge denied all that. Early in the review process, it became evident that his days as a judge were numbered and that he would soon be asked to resign. However, he used every trick in the book. He used every delay tactic, every appeal opportunity and every diversion, and he managed to drag the process on for years at great expense to the public, because taxpayers paid for his substantial legal fees throughout the process.
There is one more thing: Throughout the whole process, which went on for many years, this judge earned a full salary. On top of that, his pension continued to accrue. Mercifully, at some point, he resigned; he had a full pension by that point. The public became very cynical about judges judging judges.
I said at the time that the reforms that Bill C-9 sought to bring to the judicial review process were not about that one judge. That was just a good illustration of why reform is so necessary. The process must be simplified, shortened and clarified so that judges being reviewed know what they are up against, the Canadian Judicial Council knows what its responsibilities are and the confidence of the public in our judicial system is restored.
Judges judging judges can be a hard sell to the public, so let us not make it more difficult and more opaque than it has to be. The principle of judicial independence runs deep in our constitutional fabric, and its integrity must be retained. That is why Bill C-9 is so urgent.
My earlier speech was on December 9, 2022, at third reading. The House voted unanimously to send it to the other place, and it went through the chamber of sober second thought. Somewhat surprisingly, it met some resistance, and it has come back to this House with some amendments. There are six in total, and I will get to them.
Before I get into the merits of Bill C-9, as now proposed by the Senate as amended, I want to give an update on what has been happening in the world of judges in Canada. Six months ago, I raised the example of a case that had gone wrong and had gone badly.
Today, sadly, we have another good example of why reform is needed urgently, and that is the example of Mr. Justice Russell Brown of the Supreme Court of Canada, who just resigned.
In the earlier case, the very clever and capable judge abused the Canadian Judicial Council review process for his own advantage. In this latter case, I would submit that the judicial review process abused the judge.
I am not going to get into the details, but I will summarize what happened. During off-hours, the judge encountered a group of people, and security footage showed that they had consumed too much alcohol. Details of who said what, who pushed whom and all that were put before the Canadian Judicial Council. It should have been a speedy process, but it was not. Six months later, the initial review panel still had not completed its work; there was no light at the end of the tunnel as to when a final decision might be made. In the meantime, Justice Russell Brown was suspended from sitting with the other nine judges; there were only eight sitting. His life was on hold, as was his family's life.
As one legal academic described disciplinary hearings, the process itself is sometimes the punishment. Moreover, as another legal expert stated more recently, “Justice Brown’s retirement constitutes an honorable discharge of an honorable man in a dishonorable process.”
It does not need to be that way. If we are serious about maintaining judicial independence, the integrity of our justice system and public confidence, while upholding the dignity of judges, reform is urgent. That is why we need to expedite this bill through Parliament as soon as possible.
How would Bill C-9 improve things? It would simplify the system. It would clarify some of the rules. Bill C-9 establishes a two-stream process for complaints, first, that are serious enough to warrant removal from office, and second, for other complaints that would warrant less serious sanctions, such as orders for counselling, education, a reprimand or requesting an apology. There is a wide range of things that the council could order.
In that two-stream process, Bill C-9 now establishes a five-step streamlined process that should have the positive effect of speeding up the process to final resolution. First, there is an initial screening by a council official to decide whether the complaint has any merit at all. For example, the complainant might be a disgruntled litigant who is unhappy with the judge’s decision. That would be a complaint without merit. The draft legislation also clarifies the criteria to guide the screening officer in their work. There is more predictability, the rules are clearer and there is less fishing for irrelevant facts.
Any case not dismissed by the screening officer then proceeds to a review by an official to decide whether the complaint merits further investigation. The reviewing member is guided by the same criteria as the screening officer. The reviewing member can dismiss the case altogether or refer the matter to a review panel.
Once it gets to the review panel, the panel could either dismiss the case or make orders, short of a recommendation to the minister for removal. If the panel forms the opinion that the judge should be removed, it directs the case to a full hearing panel. In all other cases, it is has significant power to order lesser remedies or sanctions. I have already mentioned the remedies. These powers would be much broader, at this level, than they are under current legislation. That is what makes this new process so unique and so important. In theory, this allows the Canadian Judicial Council to directly address all types of judicial misconduct and enables prompt resolution of less-serious cases without a full hearing.
If the judge is unhappy with the order that has been made, he or she could appeal the review panel's decision to a reduced appeal panel. Appeals relating to remedies or orders short of removal go to a reduced hearing. Those related to removal recommendations would go to a full hearing.
The panel can hear evidence, take sworn testimony and, hopefully, settle the case. However, if the judge is unsatisfied with that, they could then have a final appeal within the system.
This internal appeal mechanism has no equivalent under the current system. Appeal panels replace, as the minister has said, the current right to judicial review through the superior courts, where cases are subject to court rules of evidence, potentially greater delays and substantially higher costs. Let us think of the earlier case, where the judge dragged the process out for many years through the superior courts using judicial review procedures that were available to him. It was an abuse of the system. This legislation would put a stop to that.
The whole process would stay within the four walls of the Canadian Judicial Council review process. There are no appeals from a decision of the appeal panel, with one very important exception. Under clause 137 of the legislation, either the judge or the presenting counsel, which is like the Crown prosecutor, could apply for leave to appeal to the Supreme Court of Canada. This is a party’s only opportunity to appeal to the courts under the new process.
The purpose behind this restriction, of course, is to reduce opportunities for endless delays by appealing into the court system. There is one appeal to one court at the end of the internal process, and that is it. Purportedly, according to the government, this limitation balances the right to fairness with a need for expediency; in fact, it is just a faint hope, because a right to appeal to the Supreme Court is only a right to seek leave to appeal, to ask for permission. The Supreme Court is very busy, and it receives many appeal applications in any given year; however, it grants very few of them. As a matter of fact, it grants fewer than 10%.
We had experts come to the Standing Committee on Justice and Human Rights and testify that, in their opinion, this is just not sufficient, and that a judge should have at least one real right of appeal into the court system. Conservative members of the committee supported that, and for that reason, we put forward a motion to amend Bill C-9 to give one more right of appeal, and that is to the Federal Court of Appeal.
In searching for the right balance between expediency and fairness, Conservative members of the committee felt that this was the right place to land. However, the chair of the committee disagreed, calling the motion “out of scope”. Bill C-9 came back to the House without amendment, and it was that unamended bill that came before the House for third reading in December 2022. The House approved it unanimously. It went to the other place, and surprise, it has now come back with six amendments, including the one the Conservative members put forward. It was a remake of our amendment, so we support that amendment, of course.
Incidentally, we also support the other amendments concerning more technical matters, such as the structure and composition of hearing panels, reporting and transparency requirements and the collecting of data. We looked at those, and they all make sense.
I want to turn back to the Russell Brown issue, which has been in the news recently. At a press conference held earlier this week, Chief Justice Wagner had this to say: “Since I became Chief Justice in 2018, I realized that there was something to be corrected at the Judicial Conduct Committee. The judicial conduct process was...opaque. It was too long, too costly and...it was not possible...for the public to have trust.... I was happy to see that government has decided to legislate on that issue, to be more transparent, less costly.”
He went on to point out that this process of reform started several years ago, but because of a number of delays, the bill fell off the order table. We all know what those delays were. They were caused by the Prime Minister's decision for prorogation of Parliament and then later to ask the Governor General to dissolve Parliament and force an election in the middle of the pandemic. It was an election that nobody wanted, and the results after are exactly what they were before.
The bill fell off the order table, and that was the cause of the delay. Parliament had to start over, and now the bill is once again before us in the form of Bill C-9. It should have received royal assent by now, and if the Liberals had agreed to the Conservative members’ common-sense amendment concerning the Federal Court of Appeal, the bill likely would have been law by now already. However, let us get it done now.
As I wrap things up here, I want to reflect on Russell Brown's legacy. I will quote several legal scholars, whose words were picked up by a publication.
Joanna Baron, executive director of the Canadian Constitution Foundation, said, “[Justice Brown's] track record in just under eight years on the SCC is extraordinary. It's sad to consider the counter-history of what his judicial career might've been otherwise.”
Ms. Baron goes on to cite Justice Brown in the Greenhouse Gas Pollution Pricing Act case of 2021. We should remember that Justice Brown was writing in dissent; he was on the minority side of this. Ms. Baron says, “He was skeptical of the move by the majority to accept that Parliament could wade into provincial jurisdiction to legislate reduction of carbon emissions under the ‘national concern’ doctrine, noting that such a move would permanently vest exclusive jurisdiction in Parliament over any matter said to be of the vaguely defined ‘national concern’."
Sean Speer, editor of The Hub, writes about the distinction between judges and scholars who are “living tree” proponents when it comes to constitutional litigation, and those like Justice Brown who pay deference to laws and regulations passed by Parliament and by legislative assemblies.
Asher Honickman and Gerard Kennedy of the Advocates for the Rule of Law had this to say about the vacancy created by Mr. Justice Brown’s departure creates at the SCC:
Justice Brown’s departure robs this country of one of the greatest judicial minds and legal writers to have presided over the Court in recent decades. We urgently recommend that the Prime Minister appoint a successor from Western Canada [where Justice Brown is from] who exhibits a similar legal brilliance and commitment to foundational principles.
I have another quote, from Howard Anglin, a doctoral student at Oxford University, who had this to say about Justice Brown’s departure:
His departure leaves a yawning intellectual hole on the Court. The Supreme Court today is a more jurisprudentially diverse body than it was eight years ago when he joined it, but it is always a threat to resume its old ways of lazy collegiality. If it does, at least future justices and scholars [and I would add law students] will have Brown’s trove of fine writing and clear thinking to challenge, inspire, and shake them out of that all-too-Canadian tendency to complacency.
I just want to have one more quote from Justice Brown read into the record. This is another dissent. It is a case that is important to me because it involves Trinity Western University when it was trying to establish a law school and was turned down by the Law Society of British Columbia. This is important to me because Trinity Western University is a very important institution, highly regarded and highly respected in my home community of Langley, and it is also my alma mater. It is where I did my undergraduate degree many years ago.
I am going to conclude with this quote from Justice Brown from that case, again writing a dissent. That decision went the wrong way, in my opinion, but Justice Brown's words, I think, are very important. Hopefully they will form the basis of judicial scholarship going forward. They read, “the public interest in fostering a liberal, pluralist society is served by accommodating religious freedom...which freedom allows religious communities to flourish and thereby promotes diversity and pluralism in the public life of our communities.”
I would like to thank Mr. Justice Russell Brown for the great service he has given to Canada, to the Supreme Court and to legal scholarship.
I am going to wrap this up, but I have a motion that I would like to read into the record. I move:
That the motion be amended by deleting all the words after the word “That” and substituting the following:
“the amendments made by the Senate to Bill C-9, An Act to amend the Judges Act, be now read a second time and concurred in.”
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- Jun/15/23 10:19:18 p.m.
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Madam Speaker, this is very important legislation, and it has been dragging on for a long time, so some of my colleagues want to speak to it. This is important legislation, and we have important things to say about it. As for the amendment I just put forward, it says to accept all the amendments put forward by the other place. We think they are important. One of them is actually our own, which the Senate has remade. As for the other amendments, we are saying we agree with them, and we think the legislation would be improved.
We are not trying to delay anything; we are just trying to make the legislation better.
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- Jun/15/23 10:20:46 p.m.
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Madam Speaker, some of the Senate amendments we would be approving speak to exactly that, so we are on record as saying we want to go forward with that.
As for there not being enough judges, that is another point I could have raised. I did not, but the shortage of judges is an issue Chief Justice Wagner raised as well in his press conference. There are 80 vacancies right now.
At the justice committee, we are studying bail reform, and some of the issues are that the trials are bogged down and bail hearings are not happening the way they should, so it is hitting a crisis point. We need the Minister of Justice and the Prime Minister to fill those vacancies as soon as possible.
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- Jun/15/23 10:23:06 p.m.
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Madam Speaker, once again we have a colleague saying we are delaying things. We are not.
On December 9, we passed this unanimously. It went to the other place, which came up with some amendments, and we think they make a lot of sense. One of the amendments is one of the amendments Conservative members put forward at the justice committee. If it had not been ruled out of scope, and if the Liberal members had voted with us on that, this likely would have received royal assent by now.
I am confused as to why the other members think we are delaying things. We are just trying to make the legislation better.
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- Jun/15/23 10:24:27 p.m.
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Madam Speaker, I would completely agree with that. As the Minister of Justice said, there was an appeal process built within the four walls of this legislation and likely that is the end. However, the experts who came to committee said there must be that one appeal into the court system that everybody recognizes as being fair, judicious and generally accepted by the Canadian public. I do not think it would bog things down at all.
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- Jun/15/23 10:25:54 p.m.
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Madam Speaker, I do not even know where to start with that.
Some hon. members: Oh, oh!
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- Jun/15/23 10:26:00 p.m.
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Madam Speaker, I am not going to speculate on that. This has come back from the Senate with amendments, and we think they are good. One of them is an amendment that the Conservatives put forward initially, and the Senate picked up on that.
I do not know why the member would impute bad motives to the senators. They are just trying to do their job to the best of their ability. After a reflection of sober second thought, this is what they think would improve the bill. We agree with them.
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- Jun/15/23 10:26:59 p.m.
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Madam Speaker, I completely agree that the appointment of judges and people to the Canadian Judicial Council should be non-partisan. One of the problems we have seen is that it has become too partisan, so I completely support that.
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- Jun/15/23 10:27:42 p.m.
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Madam Speaker, I have been asked this question a few times. We think these amendments make a lot of sense. They improve the legislation. That is exactly the way the process is supposed to work after the other place looks at it, and we think the House should accept those amendments.
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- Jun/15/23 10:46:12 p.m.
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Madam Speaker, I thank my colleague for her well-thought-out speech on this very important topic.
One of the amendments the Senate is recommending is that there be one more appeal to the Federal Court of Appeal because the appeal to the Supreme Court of Canada is really a faint hope, likely never to happen. One of the reasons the minister has given for there not to be an appeal to the Federal Court of Appeal is to stop the proliferation of appeal after appeal.
This is only one appeal, and I wonder what the member thinks about that. I get a sense that the Bloc is going to vote with the government on this, but just as an intellectual exercise, what does she think about one more appeal to the Federal Court of Appeal?
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- Jun/15/23 11:22:42 p.m.
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Madam Speaker, I just want to set the record straight.
The member for New Westminster—Burnaby was suggesting that my colleague from Cypress Hills—Grasslands was spreading misinformation. I want to read into the record a quote from his colleague, the member for Esquimalt—Saanich—Sooke, from December 9. This was after he came back from committee for third reading, when we voted unanimously. He said:
As for the appeal and the fact that the Bloc did not support my amendment to make it to the Federal Court of Appeal, I would just say again that the Supreme Court is likely never going to hear an appeal regarding a judge's disciplinary complaint, because of the very high standard....
At that time, the member was still supporting the motion of the member for Esquimalt—Saanich—Sooke, and we had a similar motion, to have one appeal to the Federal Court of Appeal. That is what his colleague stood for. We were expecting to have support from the NDP on this, because that is the way his colleague was speaking in December.
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