Senator Batters: Would Senator Dalphond take a question?

Senator Batters: Thank you. I’m very sympathetic to your point of view on this. Perhaps one of the most egregious examples of how this government, several years ago, used a budget implementation act was to plug a 200-plus-page carbon tax into a budget implementation act, with no ability to really debate it or amend it or anything like that in that sort of fashion.

I’m part of the Legal Committee, and we were discussing this Canada Elections Act change and found that it was not a great way to do it, to say the least. Is that what your amendment precisely purports to do — simply remove that part of it? It wasn’t specific in the actual amendment, so I wanted to give you a chance to explain.

Hon. Denise Batters: Would Senator Tannas take a question?

Hon. Denise Batters: Senator Shugart, thank you for your remarks. Just recently here, in response to a question, I believe, you said this was a confidence measure; however, of course, the Senate is not a confidence chamber. In the event that Senator Tannas’ amendment on this issue passed, the government would not fall. This is something that then would be sent over to the House of Commons, which is still sitting as we speak right now. Would you acknowledge that though we’re dealing with a budget implementation act, it is within the power of the Senate to provide an amendment to that?

Hon. Denise Batters: Senator Woo, I think I may have missed a little bit here getting the translation, but I believe the exchange you were having with Senator Dasko was about how this issue of removing the Canada Elections Act — or that it’s not an appropriate place to have this provision in a budget implementation act — and I believe there was some discussion to indicate that this hasn’t been discussed in the chamber prior to today.

I just wanted to bring to your attention, Senator Woo, in case you didn’t realize that, actually, is not correct. Senator Loffreda mentioned it in passing in his second reading speech about how the Legal Committee presented a report from our chair, Senator Cotter, which referenced this and Criminal Code amendments that were included in the budget implementation act. We made observations indicating it was not appropriate.

Then, after Senator Loffreda made that remark, I brought that to his attention to say specifically that these Criminal Code provisions and the Canada Elections Act should not be in here.

Do you recognize that perhaps you missed that because this has been a matter that we have raised in debate in this chamber?

Hon. Denise Batters: Honourable senators, I rise to speak to the message from the House of Commons on Bill C-9, an act that will update the process of judicial discipline of federally appointed judges. Bill C-9 would significantly change this process for the first time in more than 50 years. Under the new process, complaints against federally appointed judges would be considered only by hearing panels established by the Canadian Judicial Council rather than a series of appeals to the Federal Court and Federal Court of Appeal. Ultimately, a judge undergoing this process could, as a last resort, apply for leave to appeal to the Supreme Court of Canada.

Recently, Chief Justice Richard Wagner of the Supreme Court of Canada stated his desire that Bill C-9 would pass quickly given that the bill has been before Parliament in several iterations. But the delay on this reform of the judicial disciplinary system rests with the Trudeau government. The first bill, Bill S-5, died on the Order Paper when the Liberal government called an unnecessary election. The Liberal government then introduced the bill again in the Senate as Bill S-3 — incorrectly, as it involved the expenditure of money. So it was then withdrawn and reintroduced as Bill C-9.

In any case, the Senate Legal Committee studied Bill C-9 for more than double the amount of time that the Justice Committee in the House of Commons did. The Senate Legal Committee senators passed six reasoned, well-formulated amendments based on the evidence we heard from expert witnesses at our committee. The Senate Chamber then passed the bill containing our committee amendments to the House of Commons. Casting aside both the Senate’s common sense and the overwhelming committee evidence supporting the amendments, Minister Lametti accepted only two minor amendments from the Senate and rejected all the rest.

It feels a bit like déjà vu, honourable senators. Once again, our Senate has invested considerable effort in studying important issues, and once again, the Trudeau government has effectively told the Senate to pipe down and fall in line. Do they want sober second thought or not? The Trudeau government is treating the Senate as a glorified rubber stamp. In fact, the Trudeau government’s whole dismissive attitude toward the Senate has been on display throughout this bill’s progression through Parliament.

As the critic of Bill C-9, I was surprised to learn through a media report that the Minister of Justice intended to reject some of the Senate’s amendments on this bill. The comments in this media story weren’t even from the minister himself, but from his press secretary. Of course, this was long before Minister Lametti tabled his response to the Senate amendments with the House of Commons. His press secretary gave no specific indication as to which amendments would be rejected or why.

Honourable senators, this is not how messages are supposed to be transmitted between the chambers. But it is in keeping with how Minister Lametti has dealt with the Senate on this bill.

During our Senate Legal Committee hearings on Bill C-9, Senator Dalphond seemed to indicate that government amendments would be coming on this bill, but then he walked it back at the next meeting. An Independent Senators Group member on the committee moved a motion calling for Minister Lametti to appear at our committee a second time to explain problems with the bill that had become evident after weeks of study, and the Legal Committee passed that motion. But Minister Lametti refused. That is virtually unheard of in the last 10 years I’ve been on the Senate Legal Committee.

So, we went to clause by clause, and some major amendments passed, which were fully supported by substantial witnesses and committee testimony. Since the judicial disciplinary provisions of the Judges Act haven’t been amended in 50 years, we wanted to make sure we did it right. Therefore, as senators, we exercised our sober second thought. That’s the Senate of Canada. That’s Parliament.

During the debate on the Senate’s message, Minister Lametti said he was “. . . disappointed to see the results of their second thoughts.” It’s unfortunate that the Minister didn’t exercise a little “sober second thought” of his own before he said later that night in the House of Commons:

. . . I have a healthy relationship with the Senate. I sometimes joke that I am there more often than some of its own members, but I will not say that in the other place.

Honourable senators, this Trudeau government’s disdain for the Senate is no laughing matter.

Even the manner in which Justice Minister Lametti referred to the Senate amendments was dismissive. Normally, the minister acknowledges that the amendments he accepts from the Senate are good and important. But his comments on those amendments in the House of Commons last week were lukewarm. Minister Lametti’s remarks weren’t exactly a ringing endorsement, even though those two amendments made his bill better.

I thought the minister was joking again when he stated this during his speech:

Bill C-9, as adopted unanimously in the chamber, is a balanced, carefully considered and meticulously crafted bill that was born of extensive consultations with judicial and legal stakeholders, as well as members of the general public.

“Meticulously crafted”? First, the two amendments Minister Lametti did accept were, in fact, correcting drafting errors that the government should have corrected itself with its own amendments, but refused. Those two Senate amendments could have been avoided altogether if the Trudeau government had done its job properly.

And about the government’s “extensive consultations” on this bill, the public consultation on this issue was done in 2016 — seven years ago — and consisted of an online survey with only 74 responses and reviewing some letters written to the justice minister on the issue. That’s hardly extensive. Most of the provincial governments the Trudeau government consulted with on this issue in 2016 have since been replaced by governments of a different affiliation.

We heard over the course of our study about a number of groups who were not directly consulted by the government on this process, including the Canadian Muslim Lawyers Association, The Advocates’ Society, the Roundtable of Diversity Associations and the Canadian Association for Legal Ethics. No doubt there are others.

Senate Legal Committee heard from many of these expert witnesses during our study of Bill C-9. They provided us with much valuable information and even proposed amendments to improve the bill. I proposed two significant amendments, which were passed by the Legal Committee and then subsequently passed by the Senate Chamber. One was to include laypersons in every stage of the disciplinary process, and the other was to reinstate the Federal Court of Appeal in this process before a judge can apply for leave to the Supreme Court of Canada, where this permission is granted very rarely — only in about 7% or 8% of cases. Both amendments were rejected by the Trudeau government.

Minister Lametti stated that he rejected some of the Senate’s amendments because they:

. . . run counter to the bill’s central objective of restoring public confidence in the judicial conduct process. As a result, these amendments, quite simply, would defeat the purpose of this bill. Bill C-9 is critical to ensuring nothing less than continued public confidence in the independence of our judiciary and, by extension, in our system of justice.

But the minister is entirely wrong on this point. The two amendments I passed will actually increase the confidence of the public in the judiciary and the justice system as a whole. Take, for example, my amendment to increase the participation of laypersons at every stage of the new judicial conduct process. Minister Lametti himself admitted at Senate Legal Committee that feedback from public consultations revealed strong support for greater public participation by laypersons. Having public representation at every stage of the process brings a different lens to the judicial misconduct process and its public impact. It would strengthen public oversight and bolster confidence in the justice system.

Contrary to the belief of some, lawyers don’t actually know everything, and, colleagues, I say that as a lawyer. But Minister Lametti’s and the Trudeau government’s dismissal of my laypersons amendment smacks of elitism and an out-of-touch government. In his response to the Senate message, Minister Lametti defined laypersons as “people who do not have the training required to address matters of law.”

He said:

. . . the Senate proposed to add laypersons where they should not bring their perspectives. This would undermine the effectiveness and fairness of the new process in the bill . . . .

The message is clear: This Trudeau government and this justice minister think that only lawyers’ opinions count. The fact is that laypersons bring a valuable and unique perspective. There are enough legal professionals on each of the panels in this process to be able to sift through finer points of law. The addition of a layperson to each will not upset that balance, as the minister puts it. It will only enhance the public’s confidence in the system to have laypersons present at every stage of the process. And the public must have confidence, since judges judge the public.

Many professional organizations involve laypersons in their disciplinary processes. The Ontario Judicial Council testified before our committee that they have lay people on all levels of their disciplinary panels. The Law Society of Saskatchewan has lay people on their disciplinary panels for lawyers. At committee, Senator Clement recounted an example from her past work with the Workplace Safety and Insurance Appeals Tribunal, which includes the participation of laypersons.

Several Senate Legal Committee witnesses testified about the need for this inclusion, among them professor Richard Devlin of the Canadian Association for Legal Ethics, who has published two books on judicial discipline. He said that “insufficient lay representation in the process” compromises “the principles of impartiality, independence and representation.”

Including laypersons at every stage of the judicial conduct process will bolster public confidence in the legal system, not diminish it. My amendment won handily at the Legal Committee by a vote of 8 to 4, with one abstention and with the support of a clear majority of groups in the Senate.

My second amendment — inserting the Federal Court of Appeal at the end of the judicial misconduct process, before applying for leave to appeal to the Supreme Court of Canada — would provide another major avenue through which points of law could be considered. For this reason, these two amendments pair very well together, and my amendment to include the Federal Court of Appeal would further augment public confidence in the judicial misconduct process. It is a mistake for Minister Lametti to equate disciplinary panels with an actual court. Including a court in the disciplinary system can provide precedential value of decisions — which is something that hearings do not.

Again, that would strengthen oversight of the process and provide public confidence in the system, while addressing the need for fairness for a judge facing dire consequences to appeal.

This amendment was suggested by The Advocates’ Society, which represents more than 6,000 lawyers, judges and advocates. It was supported by the largest lawyers’ association in Canada — the 37,000-member-strong Canadian Bar Association — whose president testified before our Senate Legal Committee, which is something that we rarely see. The Canadian Superior Court Judges Association — a body of 1,200-plus judges — also indicated its support for this. These associations and organizations recognize that including the Federal Court of Appeal would bolster confidence in the process, both for the public and for judges. The minister can’t summarily dismiss that kind of legal gravitas.

The Federal Court of Appeal would also provide valuable external judicial oversight. As Sheree Conlon, from The Advocates’ Society, told our Legal Committee:

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.

The inclusion of the Federal Court of Appeal would restore external judicial oversight to the process, and preserve judicial independence.

Minister Lametti has tried to claim that including the Federal Court of Appeal would undermine the efficiency of the judicial conduct system that Bill C-9 aims to streamline. But even if the Federal Court of Appeal is inserted at the end of the process, the first-level Federal Court stage that is currently in place would still be eliminated. That would significantly cut down on costs and delays. The government has already addressed the issue of judges continuing to accrue money toward their pensions while dragging out this process; that loophole was closed under previous legislation.

Thus, all of the government’s arguments for rejecting these amendments just don’t add up. My amendments will increase public confidence in the judicial misconduct process and the justice system; provide external oversight while assuring fairness to judges; and still allow for considerable streamlining of the current process by eliminating an entire level of court from the process.

Honourable senators, the Senate has brought — and must continue to bring — sober second thought on Bill C-9. How many more times will this Trudeau government reject our Senate amendments? Time after time, we conduct intensive studies and pre-studies at committee, calling upon expert witnesses who have taken the time to prepare important testimony on government bills. We prepare thoughtful amendments, supported by a majority of senators across groups. And all that hard work is for naught when the government rejects the important amendments that we passed.

Enough is enough.

Although I am proudly Conservative, as you know, I did not propose these amendments with partisan motivations. Our job, as senators, is to make legislation better. Since this judicial disciplinary process hasn’t been updated in more than 50 years, we — as senators — have an obligation to make it the best it can be. That is why I proposed my amendments: to have laypersons participate at every level of the judicial disciplinary process, and to include the Federal Court of Appeal in the system. These amendments, backed by expert witnesses and considerable testimony, will improve public confidence in Canada’s judicial and legal systems.

I hope you will join me in insisting upon my crucial amendments. This is the Senate’s opportunity to stand firm and make this legislation better for Canadians.

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

That the motion be amended:

1.by replacing the words “the Senate do not insist on its amendments” by the following:

“the Senate:

1.insist on its amendments 1(a), 1(b)(ii), 1(f), 1(g), 1(h), 1(i), 1(j), 1(k) and 2, with which the House of Commons disagrees; and

2.do not insist on its other amendments”; and

2.by replacing the last paragraph by the following:

“That, pursuant to rule 16-3, the Standing Senate Committee on Legal and Constitutional Affairs be charged with drawing up the reasons for the Senate’s insistence on its amendments; and

That, once the reasons for the insistence have been agreed to by the Senate, a message be sent to the House of Commons to acquaint that house accordingly.”.