Hon. Denise Batters: Honourable senators, I rise today to speak to Bill C-9, An Act to amend the Judges Act. This bill modernizes the disciplinary process for Canada’s federal judiciary — a process that has not been updated since 1971. I’m not going to speak about how long ago that was, given that I was born the year before that, but suffice to say it was due for a refresh.

The current process for judicial discipline had some notable shortcomings that Bill C-9 aims to rectify. First, the process was cumbersome and inefficient: multiple opportunities for judicial review combined with the fact that a judge’s salary and pension earnings continued to accrue throughout the review process left it prone to delays and potential abuse. Second, the length of multiple judicial reviews, and their ensuing delays, increased costs to Canadian taxpayers who were left to pick up the tab for the entire process. Bill C-9 will institute provisions to address these significant problems. In addition, it will introduce greater public involvement to the disciplinary process with the inclusion of laypeople — or non-legal people — on hearing boards. While the government must always strive for even greater transparency, this bill is an important step forward in increasing public confidence in the judicial system.

At this point, honourable colleagues, it seems Bill C-9 is relatively uncontroversial: it passed unanimously in the House of Commons.

You may also recall that this is not the Senate’s first kick at this proverbial can. A similar version of this bill — almost completely unchanged — was introduced in the Senate as Bill S-5 in May 2021. At that time, I questioned the bill’s sponsor, Senator Dalphond, on why a bill such as this, which contained monetary provisions, was being introduced in the Senate of Canada.

The Trudeau government, of course, didn’t agree, and the bill remained on the Order Paper, unchanged, until the government called an unnecessary election in the summer of 2021. After that election, the government reintroduced the bill in the Senate, this time numbered Bill S-3. The Speaker of the House of Commons expressed the similar concern I had regarding the bill containing monetary provisions originating in the Senate Chamber.

Oddly enough, the Trudeau government seems to hear things a lot better from fellow Liberals than it does from Conservative senators.

The government did reintroduce this bill — properly, finally — in the House of Commons as Bill C-9 in December 2021. They then proceeded to let it wither for almost a year, until late 2022, when it was amended by the House committee, passed unanimously by the House of Commons and returned to the Senate just before we rose in December for our further debate. After this long journey, that is how we find it before us today.

To appreciate the changes made in the new process proposed in Bill C-9, it’s important to first start by reviewing how the judicial conduct disciplinary system currently operates. Presently, any member of the public can lodge a complaint against a federally appointed judge by contacting the Canadian Judicial Council, or CJC. I have been advised that, although the number of complaints varies by year, the CJC receives roughly 600 complaints per year — usually resulting in only a few moving forward for investigation, and only one or two reaching the inquiry committee stage. To date, no judge has ever been removed, although four have resigned once a recommendation for removal was made.

The Canadian Judicial Council receives the complaint, and one of its members screens the complaint to determine whether it is without merit. If so, the complaint is dismissed. If it seems serious enough to warrant removal of the judge, the complaint then proceeds to the review panel, consisting of three CJC members which include chief justices or associate chief justices and one puisne judge — which is a judge who is not a chief justice or associate chief justice — as well as one layperson who has never been a lawyer or judge before. That review panel determines if the complaint is serious enough to potentially warrant a judge’s removal. If yes, the review panel will send the complaint to an inquiry committee, comprised of a majority of CJC justices and a minority of lawyers designated by the Minister of Justice.

At the end of that inquiry committee’s hearing, it issues a report to the Council of the Whole, which is a group of at least 17 CJC members, but also as many as are available. The report from the Council of the Whole requires consensus by a majority of the CJC recommending removal of the judge to the Minister of Justice. The minister then recommends the judge’s removal to each federal house of Parliament for a vote.

Under the current system, the judge involved can appeal for judicial review of the inquiry committee’s decisions and recommendations for removal — first to the Federal Court, then to the Federal Court of Appeal and, ultimately, to the Supreme Court of Canada, with leave. Of course, each level of appeal delays resolution of the case and becomes increasingly expensive, as costs are borne by Canadian taxpayers for the entire process.

Cases of judicial discipline requiring removal from the bench are quite rare. In fact, no federal judge has ever actually been removed from the bench, with most opting, instead, to resign before reaching that point. Still, high-profile cases of abuse of the current judicial review process have prompted the government to institute changes to the appeal system.

One recent case was that of Quebec Superior Court Justice Michel Girouard. In 2012, Justice Girouard was the subject of complaints — some of which led to the recommendation that he should lose his job. He appealed his case through the judicial review process, through the Federal Court and the Court of Appeal, ultimately resigning in 2021 — when the Supreme Court denied leave for another appeal, and the Minister of Justice indicated his intent to seek parliamentary approval for Girouard’s removal. The entire process took nine years, and cost Canadian taxpayers an estimated $4 million. Throughout the appeals process, this judge continued to receive his salary and accrue his pensionable earnings.

The government changed the rules for judges’ pension accrual in 2022 under Bill C-30, the Budget Implementation Act, so that judges cannot continue to collect their pension while they are challenging a Canadian Judicial Council removal recommendation. It would make the end date be the day the CJC recommends the removal of a judge to the minister. This was a notable improvement which would help to avoid cases like Justice Girouard’s in the future.

Bill C-9 removes this provision, and replaces it with a new end date. Under this legislation, pension entitlement would cease on the day after a full hearing panel notifies a judge of its decision to recommend their removal from office. Of course, this new provision would not apply if the Supreme Court of Canada overturns the full hearing panel’s decision, the minister chooses not to remove the judge from office or either the House or the Senate votes against removing the judge from office.

Here is the new judicial conduct process, as outlined in Bill C-9: First, a screening officer at the Canadian Judicial Council determines whether a complaint is without merit. If so, the complaint is dismissed. If not, it proceeds to an initial review by one CJC member. That member determines whether the complaint should progress to a review panel, consisting of one CJC member, one puisne judge and one lawyer. If that panel determines that a judge warrants removal, the matter then goes to a public hearing panel, consisting of five members: two CJC members, one puisne judge, one lawyer and one layperson. If the complaint does not warrant removal, it is either dismissed or, if it warrants penalties less than removal, the review panel can issue a private or public expression of concern, a warning, a reprimand, ask for an apology, order a judge to take specific measures — including counselling or education — or, with the consent of the judge, take any other appropriate action. The judge in question can appeal the complaint to a reduced hearing panel.

The reduced hearing panel consists of three members: one CJC member, one puisne judge and one lawyer. If the reduced hearing panel determines that the judge’s removal from office could be justified, they then refer the complaint to the council for the establishment of a full hearing panel. That reduced hearing panel can also dismiss the complaint, or recommend other disciplinary measures. The reduced hearing panel’s decision — or as much of it as possible — is made public. The full hearing panel operates in much the same fashion. The outcome of the panel, whether of three or five members, can be appealed to an appeal panel, consisting of three CJC members and two puisne judges. That panel’s decision can ultimately be appealed, with leave, to the Supreme Court of Canada.

There was a national media article this morning that may have given the impression that the Minister of Justice does not have a role under the reformed process in Bill C-9. Let me assure you that this is not the case, and the article has now been corrected. If a full hearing panel recommends removal of a judge, they prepare a report and send it to the Minister of Justice. The Minister of Justice must respond publicly, and, if he decides to recommend removal of the judge, he will bring it to the House of Commons and the Senate for a vote before making a recommendation to the Governor General for removal. For those wondering about the recent report of a complaint against Supreme Court Justice Russell Brown, I’d like to note that his case would proceed under the current judicial conduct system, not the reformed system, since Bill C-9 is not yet law.

In any case, as I mentioned earlier, the House of Commons Justice Committee amended Bill C-9. These amendments give a complainant a written explanation for why their complaint is dismissed — from either a reviewing member or from the review panel, depending on the circumstance. These changes introduce greater transparency into the judicial complaint process, thereby increasing the public’s confidence in the fairness of the system.

The reformed judicial disciplinary process under Bill C-9 aims to address some significant shortcomings in the old system. First, it provides additional remedies for infractions that fall short of behaviour calling for a judge to be removed from the bench. This provides additional flexibility regarding discipline, while ensuring corrective measures can still be applied in less serious situations. Second, the reduction of multiple opportunities in the process for judicial review will prevent the lengthy and costly multi-year appeal scenarios we have witnessed in the past.

While I think this legislation is largely supportable, I do have a few questions and areas of concern where I think parliamentarians need to be vigilant. The new system replaces the Council of the Whole with a smaller appeal panel. While I understand that this step is meant to improve streamlining and efficiency, and I appreciate those goals, I submit that we need to proceed cautiously here. Removing a judge is a very serious step. It needs to be carefully considered. I will be interested to hear from witnesses at our Senate Legal Committee about whether they find this particular change to be a sufficient protection of the rights of judges undergoing this process.

I also have questions about the penalties that can be imposed in cases of judicial misconduct that do not meet the criteria for removal of a judge. Under this reformed process, these other penalties could include expressions of concern, warnings, reprimands, forced apologies, training, education or counselling — but Bill C-9 does not propose the option to either suspend a judge temporarily or dock their pay.

I have further reservations about the consultation process. It seems that the public consultations for these new changes to the judicial disciplinary system were conducted quite some time ago. In fact, they began in 2016 when the Department of Justice posted an online survey to its website, and then conducted a review of public correspondence received by the department regarding the judicial conduct process. This doesn’t appear to be a robust public consultation process.

The government also consulted with many players in the judicial system, including the Canadian Judicial Council, the Canadian Superior Court Judges Association, the Federation of Law Societies of Canada, the Council of Canadian Law Deans, the Canadian Bar Association and the provinces and territories, as well as lawyers previously involved on both sides of the judicial disciplinary process. The department also received submissions from the Barreau du Quebec and the Canadian Association for Legal Ethics. With respect to the provincial and territorial consultations, I would be interested to know when those occurred, as many of those governments have changed in the last several years.

Yet with all those consultations, I find it strange that the one stakeholder in the legal system the government didn’t think to consult for this bill was the Federal Ombudsperson for Victims of Crime, nor anyone else representing the concerns of victims of crime. In the past, we’ve seen public outcry about comments and attitudes of some judges toward victims of crime, especially complainants in sexual assault cases. You may recall such scenarios that led my former Conservative caucus colleague and interim Conservative Party leader Rona Ambrose to bring forward her bill to improve judicial training in that area, an initiative which I am now proud to say is the law in Canada.

Yet, we see in the consultations on Bill C-9 that the Trudeau government has once again omitted the voices of crime victims from the process. It should be an automatic reflex to include victims of crime in consultations on matters so impacting the criminal justice system. Clearly, for this government, it is not. How victims of crime are treated in the courtroom and throughout their interaction with the legal system has a direct and important impact on the public’s confidence in our justice system.

Of course, I simply can’t let the opportunity slide by to discuss another factor that undermines public faith in our legal system: the Trudeau government’s ongoing failure to appoint judges in a timely manner. This has a huge impact on delays in the criminal justice system, which, after the Supreme Court of Canada’s Jordan ruling in 2016, has led to serious criminal charges being thrown out in some cases of lengthy court delays.

Last October, I asked Justice Minister Lametti about the astonishing 89 judicial vacancies he had at that time. He tried to brush off the criticism, stating, “. . . we’re appointing judges at a faster pace, and there will be more appointments forthcoming soon.” But by March 1, five months after I asked him about this, the number is virtually unchanged. There are still 86 judicial vacancies across Canada.

Judicial appointments are the one factor of court delays over which the federal government has complete control. The Trudeau government’s utter negligence in this regard has very real impacts on the Canadian public. As I mentioned, we have seen serious criminal cases thrown out because of significant court delays. But without judges in courtrooms, there is also additional uncertainty created in the lives of Canadians dealing with legal matters in non-criminal courts — in family law custody cases, insurance disputes or any other legal conflicts where the circumstances of their lives — their families, their homes, their jobs and their health — may hang in the balance. Court delays increase costs and prevent Canadians involved with the legal system from moving forward with their lives. This Trudeau government’s failure to appoint judges undermines Canadians’ belief in a fair system of justice.

At the end of the day, honourable senators, Canadians need to have faith in our legal system. Canadian judges rightfully have a reputation as some of the best jurists in the world. We need to support them by modernizing our judicial conduct system, thereby ensuring a just, more accountable and more transparent process for all involved. I look forward to studying this bill further at committee so we can get that work under way and have important questions answered. Thank you.