Senator Batters: Did he say “no”?

Senator Batters: Would Senator Dalphond take a question about that intervention?

Hon. Denise Batters: Honourable senators, I rise today to speak on the third reading of Bill C-9, An Act to amend the Judges Act.

This is the Liberal government’s third attempt to pass this bill to update the judicial disciplinary process for federally appointed judges. The current process was implemented in 1971 — 52 years ago.

While provincial governments appoint judges at the lowest level courts, the federal government is responsible for appointing many other judges. These include judges at the Federal Court, the Federal Court of Appeal, provincial Courts of Appeal, the Supreme Court of Canada and a sizable number of lower level trial court judges, such as those at the Ontario Superior Court of Justice or, in my home province of Saskatchewan, judges of the Court of King’s Bench.

As I mentioned, Bill C-9 will apply to all judges appointed by the federal government. Provincial governments have their own judicial conduct regimes for the judges appointed under their jurisdiction.

The Trudeau government’s first attempt to update the federal judicial conduct process was in the form of Bill S-5, introduced in the Senate in May 2021. That legislation died on the Order Paper before the 2021 election and was reintroduced as Bill S-3 in December of that same year. Bill S-3 was withdrawn only a couple of weeks later, and reintroduced in the House of Commons as Bill C-9. Bill C-9, as it was introduced in the Senate, is almost identical to Bill S-3.

Bill C-9 passed unanimously in the House of Commons, as it was largely considered non-controversial. When the bill came to the Senate, I delivered a speech at second reading where I raised some questions about it that I, as the opposition critic of this bill, wanted to study at the Senate Legal Committee.

As we examined Bill C-9 at the Legal Committee, it became increasingly clear that this bill would require significant work. Where the House of Commons Justice Committee studied it for three meetings and held one clause-by-clause session, our Senate Legal Committee devoted seven full meetings to hearing from witnesses and then conducted three clause-by-clause sessions.

I’d just like to take a moment to thank all the witnesses who appeared before the Legal Committee so that we could conduct this thorough study as well as my committee colleagues for all their hard work and vigorous debate on this matter.

After 50 years without a legislative refresh, and on the third parliamentary attempt to pass a bill, it only made sense that our Senate committee should proceed deliberately and thoughtfully to ensure that we made this bill the best it could be.

The government’s consultations for the bill had gone a bit stale. Most of the consultation occurred seven years ago in 2016. Even then, the government’s public consultation was paltry. It was comprised of an online survey that garnered only 74 responses from Canadians plus a review of relevant letters received by the departmental correspondence unit. Further, many provincial governments that the Trudeau government originally consulted had changed affiliation since 2016.

One of the major purposes of this bill is to ensure public confidence in the justice system. This was a foremost concern for all Senate Legal Committee members while we deliberated this bill. The committee did good, intensive work, hearing testimony from notable stakeholders including the Canadian Bar Association, The Advocates’ Society and the Canadian Association for Legal Ethics. Several Legal Committee members proposed significant amendments based on the advice of these witnesses.

When it became clear that Bill C-9 had problems, independent senators started raising the prospect of the justice minister making his own amendments to fix it. We were later told that the government — undoubtedly aware of the committee’s concerns by that time — would not be proposing any amendments.

Our Senate Legal Committee then passed a motion asking Justice Minister Lametti to come back to testify and answer the committee’s outstanding questions. The justice minister refused, even though this would have been an opportunity to explain his government’s stance and the bill he has tried to pass in various iterations over the last few years. Without his further input, the committee then proceeded to pass six common sense amendments — some of them significant — to attempt to improve the bill.

We had a lengthy committee study on this issue, and produced thoughtful, reasoned amendments based on testimony from significant witnesses. The government should not dismiss the result of our committee’s sober second thought. I hope they will accept these amendments as further improvement to a judicial conduct system that hasn’t been significantly revised in five decades.

For honourable senators’ information and benefit, it is helpful to take a closer look at the amendments passed by the committee. Three of them were proposed by Senator Clement. Her first amendment corrected some poorly drafted language in the diversity section about the selection of judges and laypersons for filling the spots on the hearing panels in the new judicial discipline process. Bill C-9 contained a clause stating that, “As far as possible,” those individuals should reflect the diversity of Canada. Senator Clement’s amendment deleted this patronizing and imprecise language from the bill.

Another of Senator Clement’s amendments inserted the words “sexual misconduct and sexual harassment” where previously Bill C-9 referred only to “sexual harassment.” Of course, this is to encompass conduct beyond what falls into the narrower definition of sexual harassment.

Senator Clement’s third amendment added language to ensure more transparency in the judicial discipline process, particularly when complaints are rejected. It stipulates that reasons should be given to complainants in that scenario. This accountability is important to increase public confidence in the fairness of the system.

Senator Pate proposed an amendment through Senator Simons that would improve data collection on complaints brought against judges in the course of this new judicial conduct process.

In the words of Senator Pate:

The importance of disaggregated data is crucial for understanding what is and is not working within the criminal legal system. At the moment, we have very little data on whom the complainants are that are filing complaints and then most dissatisfied with the judiciary, outside of anecdotal evidence.

By giving this option, we are better able to understand who are the most displeased, who have the means to bring judicial complaints and who are disproportionately being impacted so that we can create better training for judges, lawyers and create a fair legal system.

And I also proposed three amendments to Bill C-9. Two of my amendments were passed at committee, with the third narrowly defeated by a single vote. The first of my amendments to pass incorporated “laypersons” — Canadians who are not lawyers or judges — into nearly every stage of the judicial conduct process. This dovetails with the legislative objective of increasing public confidence in the justice system and improving public accountability.

Our committee heard substantial evidence supporting this idea. Professor Richard Devlin of the Canadian Association for Legal Ethics agreed with the need for increased representation of laypersons, stating that the values of impartiality, independence and representation are compromised without sufficient lay representation.

He also raised the concern that the proposed section 115 of the act suggests that reduced hearing panels might not be public. Professor Devlin said a judge could potentially choose to avoid any lay engagement at that stage of the process and have it in private.

The Ontario Judicial Council Registrar, Alison Warner, told us about the advantage of having layperson involvement in their provincial judicial conduct system. She said laypersons offer “quite an invaluable perspective in the deliberation process.”

The representative from the Canadian Judicial Council did not agree, saying that she didn’t think:

. . . it’s necessary at every stage because you don’t see it anywhere else within an administrative tribunal, not at the screening stages, and not at others.

Responding to that, I pointed out that the federal process has more in common with similar systems at the provincial level, including the Ontario Judicial Council, than it does with different administrative tribunals. Given the degree to which judges hear very important cases dealing with the public and the ramifications of those cases, it’s important that Canadians feel like they are represented in and can trust these processes. Those are important reasons to involve lay people at every stage.

Some may question whether laypersons have the requisite legal training to sit on a quasi-appeal board. First, the lay people the council would have on their roster would be appropriate people and receive the necessary training to do the job they are required to do.

Second, contrary to the belief of some — and, colleagues, I say this as a lawyer — lawyers don’t actually know everything, and laypersons can a bring a valuable common-sense perspective to disciplinary matters.

And, third, if you are uncomfortable with a layperson dealing with matters involving the law, I would suggest that our Senate Legal and Constitutional Affairs Committee would be very different if only lawyers and judges were allowed to be members of that committee.

People who are not lawyers or judges bring a different lens to legal matters, and where issues of judicial discipline can so impact public confidence in that system, it is important that laypersons be involved in the process.

Senator Clement cited an example at committee from her own experience. She said:

When I appear in front of the Workplace Safety and Insurance Appeals Tribunal — I’m using an administrative law example — when they have three-person panels, the chair is a lawyer, and the employer community is represented, and the employee or union perspective is represented. In my experience, they are triers of fact, but they also render decisions that deal with the law. It’s considered quite a good tribunal in Ontario, quite an expert tribunal. It has an excellent reputation. . . .

The lay people on those panels have training, they have encadrement, as we say in French, and they have support. I would say the quality of those decisions is good.

Furthermore, after my later amendment passed at the Legal and Constituional Affairs Committee, Bill C-9 now contains the ability to appeal to the Federal Court of Appeal. This court could therefore handle judging the finer points of law if required. Ultimately, my amendment to include laypersons at every stage of the judicial disciplinary system passed soundly at committee, with eight members voting in favour, four against and one abstaining.

Several expert witnesses at the Legal and Constituional Affairs Committee called for the inclusion of the Federal Court of Appeal. These included the Canadian Bar Association, The Advocates’ Society and political science professor Caroline Dick. The Canadian Superior Courts Judges Association — 1,200 members strong, as Senator Dalphond stated today — also sent the members of our committee a letter, indicating that, by the end of the government’s consultation period, they were not in consensus with the position of the Canadian Judicial Council on the issue of external review. This judges association stated that they were:

. . . in favour of a judge’s ability, as of right, to seek a remedy at court at the issue of the conduct review process.

Notably, among the witnesses supporting inclusion of the Federal Court of Appeal was the Canadian Bar Association, CBA, which represents 37,000 lawyers and is Canada’s biggest legal association. During the 10 years I have been a member of the Senate Legal and Constitutional Affairs Committee, I can’t recall another time that we have had the president of the CBA testify before us. The CBA sometimes suggests amendments, but it’s uncommon for them to suggest major amends to government bills. But when CBA President Steeves Bujold appeared before us on Bill C-9, he provided two important reasons for including the Federal Court of Appeal as an option to appeal to an actual court before the Supreme Court of Canada:

First, as a matter of natural justice, it ensures that there is external oversight to the process. Second, the judiciary is so important to Canada’s democracy that the public must see that judicial discipline is carried out in an open and accountable manner with clear avenues of appeal and redress. Another benefit of a right of appeal is that the Federal Court of Appeal is likely to give detailed reasons so the judge accused of misconduct and the public will then know why an independent court concluded the way it did. This enhances the Canadian Judicial Council’s credibility by the transparent review of its process and decision making.

Mr. Bujold also said:

To conclude, the judicial branch is a pillar of our democracy and must be accountable to and accepted by the public. By creating a clear, open process for judicial discipline where the Canadian Judicial Council’s actions can be meaningfully appealed to an appeal court and by having review proceedings conducted in open court, the public retains confidence in the judicial discipline system’s integrity. Justice will be seen to have been rendered.

Even now, with the addition of the Federal Court of Appeal, the amended Bill C-9 would still be a major streamlining of the process. The current process can involve appeal of a panel decision to the Federal Court, then the Federal Court of Appeal and then to the Supreme Court of Canada, with leave, or permission. The bill as amended would still eliminate a full level of court, thereby saving both time and money, but it would retain the principles of fairness, transparency and accountability.

It is important to note that with this bill the Trudeau government made a conscious choice to extend the ability to appeal to the Supreme Court of Canada by leave rather than by right. As it is, the Supreme Court of Canada only grants appeals in 7% or 8% of the applications for leave it considers. Further, the Supreme Court must deem a matter to pass what it considers the national interest test. There is certainly no reason to be optimistic that an issue of judicial discipline would meet that criterion.

Even senior Department of Justice official Patrick Xavier admitted four times during his testimony that they do not know whether the Supreme Court of Canada would grant permission for this type of judicial disciplinary conduct appeal. As Mr. Xavier stated, “We don’t know yet what the court will do. It’s an open question.”

Where a judge facing investigation for misconduct is a Supreme Court of Canada justice, there is an extra layer of complexity. As CBA President Steeves Bujold testified:

The fact remains that if the complainant, if the judge under investigation is a Supreme Court justice, it’s a complex question of law. Can the rest of the court sit in judgment of an appeal by a colleague, and can enough judges who do not already have knowledge of the facts be assembled to have a quorum? It’s a pretty complex question, one that would perhaps be less of an issue in the Federal Court of Appeal, since there are enough judges to assemble a three-judge panel.

The Advocates’ Society also proposed adding the Federal Court of Appeal back into the judicial conduct process. Sheree Conlon, Executive Member of The Advocates’ Society, testified:

The Advocates’ Society is concerned that Bill C-9 creates a legislative scheme in which the Canadian Judicial Council is the investigator, the decision maker and the appellate authority with respect to allegations of judicial misconduct. In the end, external judicial oversight of the CJC’s decisions and actions is all but eliminated.

The proposed process is concerning because court oversight of administrative actions is fundamental to ensure their legality and fairness. The lack of court oversight of the CJC’s process undermines the security of tenure of the judiciary, which is a critical component of judicial independence. . . .

We must stress that we believe our proposed amendment will not reintroduce delays and costs we see in the current process, which the government is rightly trying to fix. The proposal ensures that only the CJC’s final decision will be subject to appeal directly to the Federal Court of Appeal. This will eliminate one layer of judicial review — the Federal Court . . . .

Ms. Conlon went on to say:

We believe this small change that we propose to Bill C-9 strikes the right balance between efficiency, public confidence in judicial accountability and fairness to all parties, all while maintaining judicial independence.

With these key considerations and significant testimony about this issue, I am pleased our Senate Legal Committee passed my amendment to reinstate the Federal Court of Appeal as a final level of appeal before seeking leave from the Supreme Court of Canada.

Reintroducing the Federal Court of Appeal into the disciplinary process could have another advantage. Having a court rather than a panel as the penultimate appeal level offers significant precedential value as well. Having an actual court — not just a panel, but an actual court — is an advantage for determining intricate matters of law that may arise from these matters.

In any case, my amendment to reinstate the Federal Court of Appeal into the process as an avenue of final appeal before applying for leave or permission to the Supreme Court passed at the Legal Committee by a vote of seven members in favour and six members against.

The third amendment I proposed to Bill C-9 was to add suspension with pay and suspension without pay to the list of potential sanctions available in the judicial disciplinary process. Unfortunately, this very reasonable amendment was defeated at the Legal Committee, but only by one single vote: five members in favour and six members against.

I will introduce a slightly reworked version of that amendment at the conclusion of my speech.

First, I think it would be helpful for senators to understand some of the testimony our committee heard regarding why these sanctions should be available in the judicial conduct process.

Under the provisions of Bill C-9, the review panel can recommend the very serious sanction of removing a judge, or choose from a list of lesser remedies, including issuing a private or public warning, reprimand or expression of concern; ordering a judge to give a private or public apology; and ordering other disciplinary measures, such as counselling or education.

There is a significant gap between some of these lesser consequences and the removal of a judge from the bench. Allowing the suspension of a judge, with or without pay, as a possible remedy would provide a reasonable option for addressing misconduct that is serious in nature but does not meet the high threshold for removal. Furthermore, if the only available penalty for serious misconduct is removal from the bench, a judge may be inclined to keep fighting against the sanction at taxpayers’ expense. Providing an intermediate-level sanction could be more appropriate for all: the accused judge, the complainant and the public at large.

When Justice Minister Lametti appeared before our Legal Committee, I asked him why the option for a suspension, with or without pay, was not included in Bill C-9. It seemed that he was not prepared to answer the question, which I found surprising, given that I had raised this issue in my second-reading speech a couple of weeks earlier. Without commenting on that, Minister Lametti passed the question to his departmental official to answer.

His official, Patrick Xavier, answered my question by saying:

The bar for judicial conduct is very high. The Supreme Court has made that very clear; judges really are expected to be a cut above in terms of how they conduct themselves, both inside and outside of the courtroom. If you are talking about something so serious that a docking of pay is warranted, you are probably into the realm of removal.

Minister Lametti sat at the table beside Mr. Xavier and did not contradict his answer, so I can only assume that he concurred with this reasoning. Although Mr. Xavier is very knowledgeable about the bill and the Judges Act, his answer didn’t seem particularly convincing to me.

Therefore, in the committee meetings that followed, I continued to ask other witnesses for their stance on whether suspensions, with or without pay, should be included as possible remedies. Most agreed that they could — and should — be included.

I noted that suspension was available as a sanction at the provincial level. I asked our Library of Parliament analysts for some research as to what the provinces across Canada do with provincially appointed judges. And when we’re looking at federally appointed judges, remember that also includes the Court of King’s Bench, which is the lower level of federal judicial appointments.

As it turns out, all provinces offer suspension of some sort as an option. British Columbia allows suspension of the judge or justice, with or without salary, for a further period of not longer than six months. Alberta allows the respondent to be suspended with pay for any period, or suspended without pay for a period of up to 90 days. Saskatchewan allows suspension of the judge, with or without salary, for a specified period, or until specified requirements are met, including the requirement that the judge obtain medical treatment or counselling. Manitoba allows suspension of the judge with pay for any period, or without pay for a period of up to 30 days. Ontario allows suspension of the judge with pay for any period, or without pay but with benefits for a period of up to 30 days. Quebec allows a condition if there’s a recommendation provided.

[Translation]

In Quebec, the council suspends the judge for a period of 30 days.

[English]

New Brunswick allows suspension of the judge — whose conduct is in question from the performance of the judge’s duties — without pay for a period of up to 90 days, or suspension of the judge — whose conduct is in question from the performance of the judge’s duties — with pay, and with or without conditions, for a period of time that it considers appropriate. Nova Scotia can require the judge to take a leave of absence with pay. Prince Edward Island allows an order recommending that the Lieutenant Governor in Council order a suspension of the appointment of the respondent for a specified period of time, or until the occurrence of a specified future event. Newfoundland allows suspension of the judge for a period that it considers appropriate until conditions which it may impose or fulfill, or until further order of the adjudication tribunal.

Our committee heard the testimony of Alison Warner, Registrar of the Ontario Judicial Council. As I mentioned, Ontario’s judicial conduct regime has a 30-day limit on suspensions without pay. Ms. Warner indicated that she was aware of two hearing panel cases in 2017 where provincial judges had been suspended for 30 days. She told us:

What the hearing panels in both cases were grappling with was serious misconduct, but on the other hand, the judges in both cases had exhibited remorse, insight, acknowledgement. They had filed many letters of support, not only from judges but from lawyers and members of the public. They had gone through some remedial training and ethical training.

She also stated that the panel:

. . . felt that in light of, as I say, these mitigating factors, a recommendation for removal would be unwarranted, and they combined the suspension without pay with a couple of the lesser sanctions, for example, a reprimand and apologies in one case. They felt that that would serve as a sharp rebuke for the conduct, but it would, as I say, take into consideration these mitigating circumstances.

During the first day of clause-by-clause consideration at the Legal Committee, we passed a few major amendments to the bill — one of which was my laypersons amendment. On the second day, I brought forward my amendment to include suspension with pay and suspension without pay for up to 30 days in the list of available sanctions.

Suddenly, we heard very different arguments from Department of Justice officials, opposing the idea that they had offered me during the minister’s appearance. At that eleventh hour, this is the reason that officials then gave: Before making any change to judicial pay or benefits — for example, suspension without pay — the measure would have to be reviewed by the Judicial Compensation and Benefits Commission. The officials estimated that the process would take about a year to complete.

Prior to this, the committee had not heard any testimony about this judicial compensation process requirement. No witness in the seven previous days of testimony had raised it as a potential impediment to including suspension as a remedy — not the justice minister, not the president of the Canadian Bar Association and not even those very same Department of Justice officials. Most importantly, we did not hear this from the Commissioner for Federal Judicial Affairs or the Canadian Judicial Council.

Senator Dalphond, the sponsor of the bill in the Senate, complained of the supposedly devastating impact that my amendment would have on the financial independence of judges, even though my amendment did cap the suspension without pay at 30 days. He said, “Why not 90 days? Why not a year? How does the judge manage to live?”

Given that the federal Job Bank estimate states that the median annual wage for a Canadian judge is $355,536.60, I’m assuming it’s probably doable.

Colleagues, I had proposed a 30-day cap for suspension without pay as a reasonable compromise, given the wide variance in limits in provincial judicial conduct regimes. It is long enough to matter, but short enough that it does not seriously threaten a judge’s livelihood or impinge upon their constitutional right to financial and judicial independence.

The Commissioner for Federal Judicial Affairs Marc Giroux suggested to our committee that existing jurisprudence on the judicial independence of judges could impact any amendment on suspension, but I reminded him that we had not heard such an argument from either Minister Lametti’s departmental officials or the Ontario Judicial Council. As such, I said that I assumed it did not exist.

Furthermore, Department of Justice officials confirmed that, to their knowledge, there were no cases in Canada of judges litigating against the penalty of judicial suspension without pay.

Let’s think about that for a second: Some provincial judicial disciplinary regimes using this sanction have been in place for decades; Ontario’s 30-year-old system is one such example. Given their legal expertise, judges are, perhaps, the most likely people to pursue litigation, and yet no judges have litigated this issue over decades. We could reasonably expect that those judges facing suspension without pay would litigate such a point if they thought they had a decent shot of winning on that issue. This tells me that this argument does not really hold water.

In fact, Mr. Xavier confirmed that a judge’s right to financial independence does not preclude the sanction of suspension without pay. He stated:

To be perfectly clear, the financial security component of judicial independence does not necessarily prohibit suspension without pay. What it prohibits is the enactment of any change to judicial compensation and benefits that has not first gone through a judicial compensation process.

As for the question of suspension with pay, Mr. Xavier said, “A suspension with pay could be enacted if this committee decides that is a good thing to do . . .”

We heard testimony from other witnesses that federally appointed judges already effectively receive suspension with pay as a sanction in some cases, and I then noted it’s just not a transparent process. Commissioner of Federal Judicial Affairs Marc A. Giroux said:

On a practical level, suspension with remuneration already occurs in that a Chief Justice who has a judge who is the subject of a complaint that is deemed to be serious can take steps to not assign that judge to hear matters until the complaint is resolved by the council or upon receiving more information about the complaint.

Obviously, this is not done at the council level now. Certainly, there is discretion for the Chief Justice to do that and we can advise that it is done. In the case of serious matters, it is done regularly.

Jacqueline Corado from the Canadian Judicial Council also confirmed that this was the case. Under the current process, the public would never know that a judge was suspended or why. They might just think that a judge is on holidays, sick leave or absent for some other reason. The public would never be aware that a judge is facing a disciplinary proceeding or a potential misconduct allegation that has led a Chief Justice to apply that sort of a sanction on them. Depending upon the circumstances, this could undermine the public’s trust in the system, given that justice not seen is justice denied. It is unfair that, effectively, suspension can be applied as a consequence if done behind closed doors but not if it is open and transparent.

Transparency and accountability of the judiciary should be paramount to ensure that Canadians can have confidence in the justice system. At the same time, we have to balance the constitutional obligation to protect the impartiality and independence of the judiciary. If we proceed carefully, it is possible to do both at the same time. By including the sanctions of suspension with and without pay for judicial misconduct, we enhance the efficiency of the revamped judicial discipline system in Bill C-9. It ensures judges guilty of serious misconduct receive an appropriate penalty. It precludes judges from dragging out litigation for years and years and costing taxpayers hundreds of thousands of dollars as they attempt to avoid a permanent removal procedure.

That is why I am once again moving an amendment to Bill C-9 today that will add the sanction of suspension with and without pay for a limit of 30 days to the list of possible consequences that can apply for judicial misconduct. While it is very similar to the amendment on suspension that I proposed at committee, this third reading version will have one significant addition: To address concerns about the impact on judicial compensation, my amendment delays the coming into force provision for suspension without pay by one year. This will give sufficient time to address any requirement that the measure first be reviewed by the Judicial Compensation and Benefits Commission. Given the testimony we heard at committee, this should be more than enough time to assess the impact of the change. Let us not forget that appeal courts routinely give the government a limit of one year to change an entire complex law. Therefore, I ask for your support for this common-sense amendment.

Hon. Denise Batters: Therefore, honourable senators, in amendment, I move:

That Bill C-9 be not now read a third time, but that it be amended,

(a) in clause 12, on page 8,

(i) by adding the following after line 22:

(ii) by replacing line 25 with the following:

“graphs (a) to (e.1);”;

(b) on page 23, by adding the following after line 26:

(c) on page 25, by adding the following after line 32: