44th Parl. 1st Sess.
June 22, 2023
- The Judges Act in Canada has been amended to provide a new process for reviewing misconduct allegations against federally appointed judges. This new process applies to judges whose alleged misconduct is not serious enough to warrant removal from office. The Canadian Judicial Council will now be responsible for reviewing the conduct of judges, and a new roster of judges and lay persons will be established to review complaints. The Council may designate a screening officer to assess complaints, and a reviewing member to review complaints that are not dismissed. The Council will establish policies for notifying complainants of any decisions made under the new process.
- Yea (355)
- Nay (55)
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- Oct/21/22 1:21:29 p.m.
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- Re: Bill C-9
Madam Speaker, the fact that we are looking at amending the Judges Act is a positive thing, because we see, certainly in the United States, where questions about the judiciary has really raised questions about the legitimacy and trust in the overall democratic process. We have an independent judiciary in Canada, and that is very important to maintain.
However, as I said, Rona Ambrose brought forward a bill to make education mandatory, because some judges just simply do not understand the dynamics that women face against the power of male sexual violence, and that is a massive disproportion. We cannot go into a courtroom and say that both sides are equal sometimes. We have to understand the larger dynamics, which was Rona Ambrose's push for change.
If we look at what happened at St. Anne's residential school, and I think it will be studied in law for years to come, we need to make sure that our system is there and that the judges know the appropriate grounds so that we get better judgments in the end.
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- Oct/21/22 10:26:50 a.m.
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- Re: Bill C-9
Madam Speaker, this bill would have been passed, had the Prime Minister not called an unnecessary election back in August 2021. Bill S-5 would have likely passed the Senate. I do not want to prejudge the work that it would have done, but it likely would have passed. Many of us had been looking at the bill beforehand, and I am sure it would have gotten due review in the House.
As the member knows, the Speaker can recognize any member who stands up and wants to speak to a bill on behalf of their constituents, just like I did. I would never want to stop members from speaking up on behalf of their constituents.
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Mr. Speaker, I move that notwithstanding any standing order, special order or usual practice of the House:
(a) on the last allotted day in the supply period ending June 23, 2023, the proceedings on the opposition day motion shall conclude no later than 10:30 p.m., the House shall then proceed to the putting of the question on the motion and then, if required, the taking of any division or divisions necessary to dispose of the motion, and the Speaker shall then put forthwith and successively, without further debate or amendment, every question necessary to dispose of the motions to concur in the Main Estimates for the fiscal year ending March 31, 2024, and to the Supplementary Estimates (A) for the fiscal year ending March 31, 2024, and for the passage at all stages of any bill based on the said estimates;
(b) notices of opposed items in relation to the Main Estimates for the fiscal year ending March 31, 2024, and to the Supplementary Estimates (A) for the fiscal year ending March 31, 2024, listed on the Notice Paper be deemed withdrawn;
(c) the recorded divisions on government legislation currently deferred to the expiry of the time provided for Oral Questions today be deemed further deferred to the conclusion of all proceedings in relation to the estimates tonight;
(d) the motion standing on the Order Paper in the name of the Leader of the Government in the House of Commons related to the appointment of Harriet Solloway as Public Sector Integrity Commissioner pursuant to Standing Order 111.1(2) be deemed moved, a recorded vote be deemed requested and deferred after the recorded division on the motion for third reading of Bill C-42, An Act to amend the Canada Business Corporations Act and to make consequential and related amendments to other Acts;
(e) in relation to Bill C-9, An Act to amend the Judges Act, the amendment to the motion respecting Senate amendments made to the bill be deemed withdrawn and the motion respecting Senate amendments made to the bill, standing on the Notice Paper, be deemed adopted;
(f) Bill S-8, An Act to amend the Immigration and Refugee Protection Act, to make consequential amendments to other Acts and to amend the Immigration and Refugee Protection Regulations, be deemed read a third time and passed;
(g) Bill C-40, An Act to amend the Criminal Code, to make consequential amendments to other Acts and to repeal a regulation (miscarriage of justice reviews), be deemed read a second time and referred to the Standing Committee on Justice and Human Rights;
(h) Ways and Means Motion No. 18, notice of which was tabled on June 16, 2023, be deemed concurred in, a bill based thereon standing on the Order Paper in the name of the Minister of Crown-Indigenous Relations, entitled “An Act respecting the recognition of certain Métis governments in Alberta, Ontario and Saskatchewan, to give effect to treaties with those governments and to make consequential amendments to other Acts”, be deemed to have been introduced and read a first time, deemed read a second time and referred to the Standing Committee on Indigenous and Northern Affairs; and
(i) the written questions dated June 20, 2023, standing on the Notice Paper, be deemed to have been transferred to the Order Paper on Wednesday, June 21, 2023, for the purposes of Standing Order 39.
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Mr. Speaker, I would just like to share my opinion on the gag orders, because judging by what the parliamentary secretary to the government House leader and the minister are saying, one would have to wonder whether gag orders are not the best thing since sliced bread. I consider gag orders to be a technique used to systematically muzzle the elected members of the House, which is unacceptable.
I believe that when the government invokes closure, it is because the government House leader has mismanaged the time spent on House business. All parties support Bill S‑8. We are now at third reading, the committee did a good job, everything is going well, and I do not think that there were many members who wanted to speak at this stage.
I will give an example. Last night, until midnight, we discussed Bill C‑9. We have discussed this several times before, even before the last election. Why has the government House leader not been able to say that this is important, that it enjoys a fairly broad consensus and that it will be implemented quickly? Instead, it takes years to be adopted and implemented.
I have two other examples. Closure was also invoked for Bill C‑47 , the budget implementation bill. It is hundreds of pages long and all the organizations that wanted to delve into it would have needed time to do so. Imposing closure on such a bill limits the amount of time available to go through it and the ability to correct the flaws in committee.
One last and extreme example dates back to the pandemic, when the government was not taking action. At one point, it came up with a bill that was to go through all stages immediately. We asked for a few weeks to study it. We wanted it to be introduced so that people could go through it and improve it. However, the government did not want to do that and said that everything had to be passed as soon as possible, without any study or review. Well, it then had to present other bills to fix the first one. That is an unacceptable and absolutely amateurish way of doing things.
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- Jun/15/23 11:49:00 p.m.
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- Re: Bill C-9
Madam Speaker, I know there has been a lot of discussion about the last-minute amendment brought forward by the good member for Langley—Aldergrove, who is a very constructive member of the justice committee.
I must say that I am quite disappointed that this is now being used as a tool to delay the passage of a very important bill. As we know, Justice Wagner, the chief justice of Canada, has asked for the expeditious passage of Bill C-9. Could my friend and colleague comment on why it is so important that we get this passed before we rise?
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- Jun/15/23 11:47:59 p.m.
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- Re: Bill C-9
Madam Speaker, really and truly, we just cannot make this stuff up. We have to see it to believe it. The member is right on.
Canadians need to know just what the Conservatives are actually up to. The idea that out of 106 people in the Conservative Party, when it came time to vote to get rid of the voting app, 77 of them actually used the voting app that they want to get rid of.
It may be that or saying that they support Bill C-9 and want it to pass, but then they move an amendment. Traditionally, when the Conservatives have done that, what they are really saying is they want to talk and talk, as the leader of the Conservative Party said last week about the budget. He said he was going to speak until the Prime Minister changed the budget implementation bill. We did not change it, and four hours later, it passed. It is a game.
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- Jun/15/23 11:47:15 p.m.
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- Re: Bill C-9
Madam Speaker, does my colleague believe that a party should do what it says it is going to do?
For example, with Bill C-9, if a party says we have to adopt this bill immediately, and then offers a delaying amendment, is that consistent? In the same way, if we have a hybrid Parliament and a party votes against the hybrid Parliament, but votes overwhelmingly using the hybrid tools that they were just saying needed to end, is that consistent? Are these contradictions by the Conservative Party that Canadians need to know about?
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- Jun/15/23 11:45:31 p.m.
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- Re: Bill C-9
Madam Speaker, the member's comments actually have no relevance with respect to Bill C-9.
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- Jun/15/23 11:24:16 p.m.
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- Re: Bill C-9
Madam Speaker, before I start my comments on the bill, I want to recognize a terrible and tragic traffic accident that members might have already heard about. It was in Manitoba on the Trans-Canada Highway by Highway 5. A semi collided with a bus.
I do not know all the details, but as a result of that accident, 15 seniors have died and another 10 are in hospital. Which hospitals I could not say; what we do know is that there will be a very high fatality rate. Hopefully, those who are in hospital are able to recover. I would like to express my best wishes and prayers to the family and friends of the deceased and to the family and friends of those who are being taking care of.
As well, I compliment the first responders for the truly amazing work they do. They were very quick to get to the scene, whether SARS, ambulances, police or firefighters, and no doubt have contributed to saving lives. I just want to recognize that. I am sure my colleagues here this evening, and in fact all members of Parliament, share in the families' grief and wish them all the very best.
Having said that, allow me to share some thoughts on a very important piece of legislation and issue that all of us are very much aware of. This is legislation that would amend the Judges Act and create a new process, and one would think that there would be eagerness to see this legislation pass.
I thought it started off so well. I might be a bit biased, but I think that what the Minister of Justice had to say was very clear. A number of amendments have been brought forward by the Senate, and he provided detailed comments on the suggestions the Senate has put forward. I can honestly say that generally speaking, at times the Senate contributes to making legislation that comes through the House that much stronger, and to that extent makes it better for Canadians. I think it is quite encouraging when we get these amendments coming forward.
The Minister of Justice made comments, as I said. He explained why we can accept a couple of amendments and why we cannot accept some others. Then he went on to talk about the importance of the legislation and why it was important that we attempt to see quick passage of the legislation.
Right after that, when the member for Langley—Aldergrove, the critic, began his speech, I started to feel pretty encouraged by his opening remarks. He talked about how the legislation was good, saying that the Conservatives support it and that they saw the value in it when it was in here earlier.
The legislation has already gone through a number of steps. It was introduced quite a while ago. Members were already familiar with the legislation. It went to committee, and yes, there were some healthy discussions that took place at committee stage. Then it went through report stage and third reading and was passed, and off to the Senate it went.
If one followed some of that debate and discussion, one might have been of the opinion that the legislation had virtually unanimous support of the House. It is always a good thing when we get that kind of support. Then the member got to the tail end of his speech, and at the tail end of his speech, what does he say? In fairness to the member, he might have been slipped the amendment; I do not know. Maybe he created the amendment. Maybe the House leadership told him to remember what the leader says: speak, speak, speak and hold things up wherever he can. That is the essence of what the modern Conservative far-right party says today.
The member then indicated very clearly that he does not like the legislation to such a degree that he wants to see some amendments, so he moved an amendment. In all honesty, I was not really surprised, because the member was putting in place a sequence that we have seen the Conservatives do on many different pieces of legislation. There is, however, a bit of a difference on this legislation, because ultimately the member made it somewhat clear that they support its passage.
I thought maybe there was a chance the bill would pass here this evening after listening to the beginning of the comments. When he moved the amendment, I think he surprised a lot of people. It surprised me to a certain degree. I was a bit disappointed, because after all, as I said, the bill amends the Judges Act. In essence, it streamlines the review and investigation process. Think about that. Not only does that ensure there is a higher sense of equality, justice and so forth, but it also makes the system a bit more efficient. There is even money to be saved. Moving this particular amendment sends a message that it is similar to other pieces of legislation, and I get the sense that the only way we are going to have a chance at passing this legislation is if it is time allocated.
Once again, as a government, we have to go to the Bloc or the New Democrats to try to explain the behaviour of the Conservatives, which is not that tough nowadays it seems, to ensure that we can pass this legislation. It is the type of thing that we really cannot make up. Think of the types of things we have witnessed, like how they move amendments, and the type of voting we have witnessed.
I am kind of losing context of time, but a few hours ago or two hours ago, we had a vote on the hybrid motion. I know the NDP House leader made quick reference to it. It is a hard thing to resist. It really and truly is. Think about it. We had a vote on something the Conservatives oppose. They do not like the voting app and the hybrid system, so they voted against it.
An hon. member: Until they have to use it.
Mr. Kevin Lamoureux: Madam Speaker, it is just as my colleague said: until they have to use it. They used it on the motion that I just finished talking about, the motion that says we want to enable members to vote by hybrid or vote using the voting application. Members would not believe that out of the 106 Conservatives who voted, 77 actually used the voting application to vote. I do not quite understand it. It is that Conservative logic. If we then fast-forward a couple of hours, what do we see? We see yet another amendment brought forward as a tactic to postpone the vote on this bill.
I asked the member for Langley—Aldergrove why he moved the amendment and I asked him how many Conservative members he would like to see speak now, and whether he could give us an indication. Members were here for the response from the member. He said his party had lots of members who want to be able to speak on the legislation.
How many more days do we have until the normal session would come to an end? It is somewhat limited, but I have told the House leader that, personally, I do not mind. I enjoy being inside the chamber. I enjoy the debates. Honest to God, with hand on heart, I will come back in July, I do not mind, if the members opposite want to have debate. Having said that, I think there might be a number of members who would like to see the Conservatives stop with the games and the filibustering and recognize that part of being a responsible official opposition means allowing legislation to pass without having to incorporate time allocation.
An hon. member: It helps Canadians.
Mr. Kevin Lamoureux: It does. It helps Canadians in a very real and tangible way.
An hon. member: This is the biggest audience you've had in a while.
Mr. Kevin Lamoureux: Yes, ever since the member from across the way walked back over. This legislation would help Canadians. In one of the questions I put across was the issue of public confidence.
The Minister of Justice and the parliamentary secretary on justice talk about the importance of public confidence in the system. It is important to recognize that, so when members say this legislation is in the best interest of Canadians, it is. It would make a real and tangible difference. Canadians want to see the independence of our whole judicial system, whether it is with policing, our courts or the process of our Crowns laying charges.
Around the world, Canada is recognized for our judicial system, and it is complemented by the fact that there are many checks in place to ensure that it is not politicized. We recognize that it is a joint responsibility, where we work with the provinces, territories and indigenous communities, to ensure we have a judicial system that has the confidence of the public.
I do not say that lightly, because there have been incidents where we have seen the need for reforms or changes. A good example of that is with the former leader of the Conservative Party, Rona Ambrose. God, I wish she came back.
Rona Ambrose had an idea to make changes that would impact our judicial system. It came about because of a number of judges who had made comments regarding gender discrimination, if I can put it that way. They offended a great number of people, and there was a genuine concern among the public and questions of confidence in the system. Rona Ambrose, the former leader of the Conservative Party, came up with the idea of instituting some sort of educational program. I cannot remember all the details, because this was a number of years ago, but government members, members of the Liberal caucus, saw the value in the principles of the legislation, and we actually embraced the idea.
When we did the consultations and canvassed our judicial system for its reflections on what was being proposed by the then leader of the Conservative Party, we found it had garnered wide support, much like Bill C-9. With that support, what did we eventually see? Yes, there was some frustration, but it was not coming from the government or the Liberal Party. In fact, caucus colleagues of mine often talked about how we could ensure that legislation saw the light of day. They wanted that legislation to pass.
We had the support of all members of the House, and it passed unanimously. There was no trickery or anything of that nature. No one said, “We'll pass this if you do this.” There was no trading or bargaining processes. We recognized the value of the legislation and agreed to get it passed through the system.
Interestingly enough, I believe a couple of provincial legislatures looked at this. My daughter raised the issue, and she is in the Manitoba legislature. They were looking at what we did here in Ottawa and how it could be potentially duplicated in provincial legislatures. That is how Ottawa can demonstrate leadership on an important issue.
If one understands and appreciates the sense of independence of our justice system, then factors in all of the work and effort that has gone into this piece of legislation getting to the point it is at today, one sees it has been a long journey, a journey that ultimately went through all forms of different stakeholders. The ones I emphasize are the courts, or those directly involved in courts, the judges.
There was consensus, a very broad consensus, that this is the type of legislation communities, including the judicial community, would accept and want to see passed. When the Minister of Justice talked about the legislation earlier, he made it very clear to everyone that this is legislation where there has been pressure coming from the outside, from the judicial community, suggesting that the legislation be passed as quickly as possible.
Interestingly enough, and it might have been at third reading, but I can recall talking about that previously. That is why I was encouraged, even back then, because the Conservatives did not seem to hesitate.
There are amendments and a number of things I am no doubt missing, but having said that, let me suggest to members opposite it is not written in stone. We could pass this legislation tonight, or at least get it to a stage at which it could be voted on. Let me put it that way because we cannot seek unanimous consent now, but we can at least get it to a stage where it could be voted on as early as tomorrow.
I would ask Conservatives to do what the Liberals did when Rona Ambrose brought forward a good idea, which was to recognize the idea for what it is and support our judicial system. Let us show the public we have confidence in the system, get behind the legislation and allow it to get to a point where we can pass it tomorrow. That can be done.
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- Jun/15/23 11:20:25 p.m.
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- Re: Bill C-9
Madam Speaker, I was troubled to hear the leader of the official opposition tell the national media that his party intends to use every opportunity to obstruct the work of the chamber and gum up the works of Canadian democracy. It makes it somewhat difficult to understand whether interventions in this place, at this late day in the session, are made in good faith or whether they are indeed part of this effort to slow down the work of our Parliament. Could my dear colleague reflect on Bill C-9 and offer his thoughts on what is going on here when it comes to the Conservatives' interventions?
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- Jun/15/23 11:14:05 p.m.
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- Re: Bill C-9
Madam Speaker, I am wondering if the member could expand on the issue of the importance of public confidence in the system. For me personally, that is one of the driving forces in terms of why Bill C-9 is of the utmost importance, among other things, and I hope to be able to expand on that shortly.
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- Jun/15/23 10:56:14 p.m.
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- Re: Bill C-9
Madam Speaker, I was just complimenting my colleague from Langley—Aldergrove by saying that he gave an excellent speech. He talked about the fact that the Conservatives support the bill and that they want it to be passed. After 50 years, it is time for us to make that change.
However, at the end of his speech, after spending 20 minutes talking about how important it is to pass the bill, he presented an amendment that is going to further delay the passage of the bill. I do not understand that contradiction at all.
What is more, earlier, the Conservatives voted against a motion to maintain the hybrid Parliament. However, today, they used the hybrid application 291 times to vote on the matter of a hybrid Parliament. I have to say that that includes the Bloc members as well. Together, they used the hybrid app 291 times to vote against the hybrid Parliament. That is another contradiction. I think that everyone can see that there is a problem here. Members are saying that they do not want a hybrid Parliament, but then they are using the hybrid application to vote against the hybrid Parliament. I will move on to another subject because Parliament already ruled on that.
Let us get back to Bill C‑9. An amendment has been tabled that will further delay the passage of the bill, and that is unfortunate. The process has been lacking for 50 years. The public does not support it and it is not particularly clear that justice will be served through this process. Furthermore, it does not allow people to have more confidence in our justice system.
It has been 50 years. First, there were the promises from the former Harper regime, which wanted to amend this process. It did nothing, and that is not surprising. There were a lot of broken promises.
I spent 10 years in the House during the Harper regime, and we saw that regime's lack of respect for Parliament. We saw broken promises, including the promise to set up a process for judges and for complaints about the judicial system. We saw that time and time again.
Then the Liberals came to power and promised to do the same thing. It was put off. I think that the member for Saint-Jean said it well earlier. We ended up with a bill passed by the Senate, but it took years to get to that point. This evening, we believed that the bill would finally pass. There was a consensus. However, the consensus has just been broken again by the Conservative Party amendment.
We certainly support this process to modify the entire complaints process for the judicial system. We believe it is important to put this in place as quickly as possible. This means that we must vote. It seems to me that, once again, because of this party that blocks everything, the government will have to resort to a time allocation motion to pass the bill and bring the legislative process to a successful conclusion. Instead of going round in circles, we must pass this bill.
As all parties have said, including my colleague from Langley—Aldergrove, this bill is necessary. However, the Conservatives moved an amendment to further delay passage of this bill.
There is no doubt that New Democrats support the modernization of the complaints process, no doubt at all. We also support aspects of the bill that allow for varied sanctions, such as counselling, continued education and other reprimands. With the current system, which is hopefully not going to continue for much longer, though with the delays that we are seeing provoked tonight, we will have to see about that, the current option is really only removal from the bench. That is why we believe that increasing public confidence in federal judges is absolutely essential, and we need a modernized complaints system.
We believe that this system could have been put into place already. We will recall that this was moving along and then, all of a sudden, the Prime Minister called what was, I think it is fair to say, an unnecessary election in the midst of COVID. At a time when Canadians were preoccupied with getting through COVID, the Liberals provoked an election. Canadians right across this country basically told parliamentarians to get back work, that they were going to give us the same Parliament we had before the Prime Minister called the unnecessary election.
That has caused further delays that have brought us to tonight, when we were hoping to see passage of the bill. That is obviously not to be because of the blocking amendment brought forward by the Conservatives. New Democrats believe there are many other aspects of the judicial system that we need to be tackling. My colleague, the NDP justice critic from Esquimalt—Saanich—Sooke, has been extraordinarily eloquent about this. Yes, he worked on Bill C-9, and yes, he worked to improve it. He brought forward a number of amendments, which I will come back to in just a moment.
The reality is the member from Esquimalt—Saanich—Sooke had a tremendous influence over this bill moving forward and the quality of the bill. He sought to improve it at a number of different stages, but he has said, and he is right, that we need to move on to other things. There are other pressing issues, such as the opioid crisis and systemic racism in the judicial system. These are all things that need to be tackled, yet we are still dealing with Bill C-9, hopefully with not too many more delays.
Because it has taken so long, because COVID delayed it and because finally, after 50 years of moving it forward, a completely unnecessary election derailed it, we have finally gotten to the point where Bill C-9 was sent to committee. This is where the member for Esquimalt—Saanich—Sooke had substantial impacts. I am going to talk about the amendments that he brought forward at the committee stage that are very relevant to the recommendation we have tonight, which is to accept two Senate amendments and reject the rest. That was prior to the Conservative amendment that would delay all of this discussion, but I think there was substantial consensus around the idea that two of the Senate amendments should be brought forward.
What NDP members brought forward at committee is the following. First, there was an amendment that would have expanded the definition of “discrimination” in clause 12 of Bill C-9 by adding “or improper conduct that is substantially similar to discrimination” to the grounds which would have prevented dismissal at the screening stage in paragraph 90(3) of the act.
This concern, as we know, was brought to committee by the National Council of Canadian Muslims, which appeared as a witness because, in both the current process and under new provisions in Bill C-9, complaints could be dismissed without proper investigation at the initial stage because the behaviour does not meet a narrow legal definition of discrimination.
This was an important amendment brought forward by the member. As members would have heard when I asked the Minister of Justice just a few minutes ago, ultimately Liberals and Conservatives voted against that amendment, so it failed. It would have made a difference. We are talking about looking beyond the issue of judicial conduct to the issue of discrimination, which is fundamentally important, as the member for Esquimalt—Saanich—Sooke has said on so many occasions, and as has our leader, the member for Burnaby South, yet that amendment was rejected.
The second amendment that was brought forward added a requirement that when there is a decision to dismiss a complaint at the initial stage, both the decision and the reasons for dismissing that complaint would be conveyed to the complainant, instead of just a summary of the reasons. The complainant would receive both the decision and the reasons for the dismissal of the complaint.
This amendment was brought forward by my old colleague Craig Scott, who was a member of Parliament. He was a fantastic member of Parliament for Toronto—Danforth who took over after Jack Layton passed away. He is a law professor at Osgoode Hall Law School and he appeared as a witness on this study. He detailed for the committee that no such information was provided to him when he was a complainant proceeding through the judicial review process. He had gone through the process and understood that information was not providing transparency. In other words, it was not leading to that growth in public confidence that is so critical in a democracy.
The amendment was aimed to provide openness and transparency and, as one of the high points of Parliament at the committee stage, all members of Parliament from all parties at the committee agreed to that amendment. It helped to improve the bill.
The third amendment that the member for Esquimalt—Saanich—Sooke tabled added a requirement that when a review panel made a decision on a complaint, both the decision and the full reasons would be given to the complainant. This added to what Craig Scott, the former NDP MP for Toronto—Danforth, brought forward.
Those two amendments, in series, helped to ensure that the bill would increase transparency, and this was important.
There was discussion around the right of appeal to the Federal Court of Appeal. The member for Langley—Aldergrove raised that idea in his speech. The reality is that we now have a twofold system of appeals, as the Minister of Justice described in discussing the Senate amendments. In a very real sense, that has helped to provide for the appeal process without making it an unduly long process.
Let us come now to the heart of the matter, which is the issue of the Senate amendments. There are two amendments that the government has proposed accepting from the Senate. The first is removing the words “as far as possible”. The member for Saint-Jean talked about this a number of times during her speech.
It is from the section requiring panels that convene to investigate complaints to reflect the diversity of Canada. We support this amendment, as well as the Senate amendment that adds sexual misconduct to the list of complaints that may not be dismissed without a formal investigation.
Those are two amendments that the Senate has put in place that the government is proposing be retained and that the NDP supports as well.
There were a number of other amendments, including the amendments regarding the Federal Court of Appeal. As I mentioned, we now have a two-stage process for appeals, so the rejection of those Senate amendments, to our mind, seems to be a fair-minded approach.
The most important thing is that we have been going back and forth for several years. There has been no change in the complaints process for 50 years. Improvements are obviously needed. However, we have been going around in circles for three years now. At committee, the member for Esquimalt—Saanich—Sooke managed to get the NDP amendments I just mentioned adopted to improve the original bill, which is extremely important. This contributed to the quality of the bill.
The bill was then referred to the Senate, which proposed a number of amendments that we can support.
As members know, supporting these two Senate amendments is a bitter pill for the NDP to swallow. Our official policy is actually to abolish the Senate, which is a second chamber made up of non-elected members, as New Zealand and a number of other countries have done. Senators have been appointed, and not elected, for years. I would say they do not have the same credibility as the members of the House of Commons.
Other countries have abolished their second chambers, but that is not just an international phenomenon. Some of these upper, unelected chambers have been abolished right here in Canada, including in Quebec, British Columbia, Manitoba and Ontario. It makes no sense for unelected people to make decisions that have consequences for a population without being accountable. As members of Parliament, we must be accountable.
When I make a decision, I have to be accountable to my electors in New Westminster—Burnaby. I hope that some of them are watching me this evening. Who are the senators accountable to? That is the big question. I know that this is concerning and I know that these questions are being reviewed. It is true that it is important.
Nonetheless, the NDP is voting in favour of these two amendments because they make sense, even though they originate from the Senate. The most important thing to the NDP is that the bill be adopted with the recommendations that the government proposed and that it be sent back to the Senate so that it can get the Senate's seal of approval. The process will then be complete and we will finally have an improved judicial complaints process.
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- Jun/15/23 10:54:01 p.m.
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- Re: Bill C-9
Madam Speaker, I am pleased to rise at this late hour in Ottawa, where it is almost 11 p.m., to speak to the Senate amendments to Bill C-9.
I would like to start by saying hello to my constituents in New Westminster and Burnaby. In British Columbia it is almost 8 p.m. and so the sun is still up. I know that is also the case in the ridings of the member for Langley—Aldergrove, the member for Kelowna—Lake Country and my colleague from Skeena—Bulkley Valley. For the people of British Columbia and for everyone listening to the debates in the House of Commons, we are in the thick of things. I know that there are some constituents listening and I applaud the fact that they are listening after supper to what is happening in the House of Commons.
The NDP will support Bill C-9 and the recommendation on the amendments. I will come back to that in more detail later. First of all, I am concerned that the Conservative Party is once again trying to block a bill. This has been going on in the House systematically for years. As I have said before, there are two blocks in the House: the Bloc Québécois and the block-all Conservative Party, which never misses a chance to block a bill, even the ones it says it supports.
We just heard an excellent speech by my colleague from Langley—Aldergrove who spoke about—
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- Jun/15/23 10:44:53 p.m.
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- Re: Bill C-9
Madam Speaker, one of the analyses I did in my first speech on Bill C‑9 was under section 99 of the Constitution, which addresses judges' security of tenure. Different jurists and analysts who worked on the bill mentioned that this principle of immovability was respected. The foundation of the analysis process for misconduct is that it is to be done by peers and a judge must not be removed for minor issues. It was balanced.
The fact that the number of courts in the analysis process is being reduced and that only a right of appeal to the Supreme Court is being retained was balanced in context to still allow for the right of defence for judges accused of misconduct. This is a bill that is balanced and respects the constitutional part on security of tenure.
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- Jun/15/23 10:28:12 p.m.
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- Re: Bill C-9
Madam Speaker, even though it is late, we are wrapping up our work and we may be a little jagged, it is a pleasure to speak to the return of Bill C‑9 as amended by the Senate.
This all feels a bit like groundhog day. I was rereading the notes from my last speech on Bill C‑9 and they begin with a reminder to wish everyone a merry Christmas.
In my notes, I was talking about the fact that I had spoken to Bill C‑9 or its equivalent, Bill S‑5, before the 2021 election. All that to say that I have spoken to Bill C‑9 many times now. I feel like I am repeating myself, unfortunately. It may be a feeling shared by my colleagues, either in their own speech or in having to listen to mine for the umpteenth time this evening.
This has been mentioned many times: There is a real urgency to look into the misconduct of federally appointed judges, as current events are reminding us. There is the case of Justice Brown, for instance, where there were unending delays in the probe of what seemed to be alleged misconduct.
In a context where, unfortunately, there is a shortage of judges, we are reminded that we need to streamline the process for studying misconduct and that we need to do so in two ways. First, Bill C‑9 provides for fewer judges to study a case of misconduct. Second, it provides fewer possibilities for using delaying tactics throughout the process to ensure that the work is done diligently and that the judges are assigned for a shorter period of time.
With respect to the amendments proposed by the Senate, only two were retained by the government and the rest were rejected. I will spend a little more time on one of the amendments, which prompted some questions that I have already asked my colleagues. It concerns an amendment to clause 84, which follows up on the clauses that provide for the creation of a list of judges and laypersons who can be involved in the different stages of the process for studying the misconduct. There is a diversity provision for this list. The initial clause read as follows:
84 As far as possible, the Council shall name persons who reflect the diversity of the Canadian population to the roster of judges and to the roster of lay persons.
The amendment suggested by the Senate and accepted by the government would delete “as far as possible”. As I mentioned, this points to a shift away from what seemed like an obligation of diligence to an obligation of result. To the extent possible, the aim was to incorporate diversity into the list of judges and laypersons for selection. However, by deleting “as far as possible”, I get a sense that we are creating more of an obligation of result, which raises a number of issues.
We are told that there is currently a shortage of judges. We cannot change the current number of judges simply by snapping our fingers. It would be nice if we could because we need them, but we have to work with what we have. If we absolutely had to start reflecting diversity now, with our very small pool of existing judges, we could run into certain problems by selecting judges concentrated in certain geographic areas, where there is better representation. We could end up relying more heavily on specific locations to find judges more representative of diversity. We could also run the risk of sidelining certain other necessary or useful criteria in selecting the judges we want to include on our lists. One example could be knowledge of both official languages. By making diversity an obligation rather than something we are striving for or want, we could be limiting our options at a time when resources are already scarce.
When I asked the minister whether it might not create obstacles that are more difficult to overcome if we make it an obligation of result rather than an obligation of diligence, I got the impression that he somewhat agreed that it was perhaps not the best amendment that the Senate could have suggested. He seemed to be saying that we can live with it, it is not so bad, but that, clearly, we could have done without it.
When it comes to this aspect of creating an obligation of result when drawing up a list, I think we could have done without this amendment. It creates an obligation that may be difficult to fulfill. I do not necessarily share the Minister of Justice's optimism when he says that the Canadian Judicial Council is of the impression that it will be able to fulfill this obligation.
The other amendment that was proposed and welcomed by the government is to add the term “sexual misconduct” to the list of complaints that cannot be systematically dismissed by a screening officer who receives complaints. It therefore says that “A screening officer shall not dismiss a complaint that alleges sexual misconduct [that is the term being added] or sexual harassment or that alleges discrimination on a prohibited ground of discrimination within the meaning of the Canadian Human Rights Act.”
In the complaints analysis process, a complaint can be dismissed from the outset if it is frivolous, vexatious or obviously unfounded because the grounds for complaint are not sufficiently substantiated. A complaint cannot be rejected if there is an element of sexual misconduct, sexual harassment or discrimination.
This amendment is timely in the context of the #MeToo movement, as we increasingly seek to eliminate everything to do with sexual misconduct. We do not want this to be such a specific criterion that we never reach it. We want to widen the scope. I think it is a good thing to add “sexual misconduct” to the list of criteria for not automatically dismissing a complaint.
In that regard, I believe that good work was done. In my opinion and in the Bloc Québécois's opinion, the minister clearly explained the reasons for which he supports these two amendments, although we do not entirely agree with one of them. However, this will not prevent us from voting in favour of the motion, because it will finally make it possible to implement Bill C-9. This is becoming increasingly urgent. We need to get this done as quickly as possible, so we can truly streamline the complaints analysis process.
The government rejected the rest of the Senate amendments in order to prevent the complaints analysis process from becoming more cumbersome, given that the original intent of the bill was to streamline it. In our opinion, it was warranted to reject the proposed amendments.
I want to come back to the fact that this bill was debated at length on multiple occasions and in various incarnations. The Standing Committee on Justice and Human Rights has done a lot of work on this, and it seemed as though we finally had a version that parliamentarians agreed on.
Bill C‑9 was unanimously passed at third reading. I think we could have done without the Senate deciding to get involved and adding its two cents. I will not get into the details of Bloc Québécois's position on the very existence of a second chamber. However, I would like to come back to the general purpose of the bill. It is important to remind members of that. The community, all jurists, have been asking for this bill for a long time.
What is more, as I mentioned recently, after the news broke about Justice Brown, the Right Hon. Richard Wagner once again emphasized the urgent need to take action and pass Bill C‑9. He also mentioned that it was too bad that the bill was still being examined by the House.
This allows me to add this little grain of salt: If not for the snap 2021 election, we would already have a bill in place. I mention the following purely as a hypothesis, since I do not have a crystal ball, but Justice Russell Brown's case might have gone differently had it been handled under the future version of Bill C‑9, which we will likely adopt, instead of under the old complaints process, which is several decades old.
This bill, which seeks to shorten the process and therefore lower the cost, is well balanced. It helps speed up the process and make it more efficient, while upholding the rights of any judge who may be the subject of complaints for misconduct of all kinds within or outside their practice.
The other thing we really liked about the bill is that it gets us out of a binary repression mode, a binary method for sanctioning complaints. In the first version, either the judge was cleared of the charges and remained in their position, or they were found guilty of the charges and had to be removed. There was no grey area between the two for less serious misconduct, for example. That is something that has been corrected in Bill C‑9.
I think it is still worth mentioning a few things that are now possible. I did this last time, and I think it is still relevant to repeat it again today. Clause 102 of the bill states: “If the review panel does not refer the complaint to the Council under section 101, it may dismiss the complaint or take one or more of the following actions if it considers it appropriate to do so in the circumstances”.
One of the things the panel can do is “issue a private or public expression of concern” about the judge's alleged conduct. It can “issue a private or public warning”. It can also “issue a private or public reprimand”. Once again, these measures may be more appropriate depending on the type of misconduct that may have occurred, rather than an all-or-nothing approach, in other words removal or no removal. The panel can also “order the judge to apologize, either privately or publicly, by whatever means the panel considers appropriate in the circumstances”. This means the judge can be supported through an apology process that would be tailored to the situation.
It can “order the judge to take specific measures, including attending counselling or a continuing education course”. There is a rehabilitation aspect. This is a much more positive approach that shows a desire to retrain judges, if they make honest mistakes, for example.
The panel can “take any action that the panel considers to be equivalent to any of the actions referred to in paragraphs (a) to (e)”. This provides the panel with a fair bit of latitude in the actions it can take. Finally, the panel can, “with the consent of the judge, take any other action that the panel considers appropriate in the circumstances”. The fact that the judge's consent is absolutely required for measures beyond the scope of those mentioned is perhaps the aspect of the bill that made us hesitate a little more.
Generally speaking, this is a bill that has long been awaited and desired by the judiciary and the bar associations. We are pleased to finally see it come to fruition, to completion. We hope that, despite the little game of ping-pong between the House of Commons and the Senate, no more obstacles will be thrown in the way. I would like to point out that the fact that another amendment has been proposed just this evening worries me a little. I hope that this will not prevent the bill from being passed before the summer, or before what could happen in the fall. Nobody here has a crystal ball. I hope this will not be the umpteenth bill to die on the Order Paper. We could fill a lot of shelves with all the bills that have died on the Order Paper. Unfortunately, we are making a lot of work for shelving manufacturers.
In general, we feel that the government's motion assessing the Senate amendments is balanced.
It prevents excessive amendments from undermining the bill's original substance and its original objective of streamlining the process and making it much more efficient. We still have some uncertainty about deleting the words “as far as possible” and imposing an obligation of result. However, we can live with that uncertainty. I think that voting in favour of the government's motion is worthwhile, because it will finally allow the bill to be implemented.
With that in mind, the Bloc Québécois has no problem in supporting the motion. Most of all, we hope that the next steps will be taken in a timely manner and will finally produce an acceptable bill.
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- Jun/15/23 10:26:38 p.m.
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- Re: Bill C-9
Madam Speaker, once Bill C‑9 is adopted, should the Minister of Justice finally become involved in the judicial appointment process in order to make it less partisan and more effective?
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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 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 9:33:46 p.m.
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- Re: Bill C-9
He said: Madam Speaker, I am pleased to rise today to speak to Bill C-9, an act to amend the Judges Act, which proposes reforms to the judicial conduct process. There is no doubt that these reforms are necessary. On Tuesday, the Chief Justice of Canada noted the importance of passing the bill quickly and I hope all members here take his advice to heart and that we proceed quickly.
Before moving to my prepared remarks, I would like to thank the Chief Justice of Canada as well as the Canadian Judicial Council and the Canadian Superior Court Judges Association for their work on this bill. I would also like to thank my very able parliamentary secretary, the member for Esquimalt—Saanich—Sooke; as well as the members for Fundy Royal and Rivière-du-Nord. Obviously, as well, I would like to thank the hon. senators who put a lot of work into this bill, including Senator Pierre Dalphond.
Before discussing the central elements of Bill C-9, I would like to remind the hon. members of the process that got us here. As members will recall, the current judicial conduct process originated in 1971 when Parliament amended the Judges Act to create the Canadian Judicial Council, which was vested with the authority to investigate allegations of misconduct against federally appointed judges.
More than 50 years later, Canada's judge-led model for overseeing the conduct of a federally appointed judiciary remains a forerunner in the world, but the main characteristics of Canada's process have remained unchanged. This is despite fundamental changes in the field of administrative law and changing social values and public expectations that help to inform norms of judicial conduct. As a result, the structures and processes currently in place under the Judges Act are outdated. Worse still, in some recent high-profile cases, they have proven ineffective, jeopardizing the public trust that they were meant to inspire.
The current process for reviewing allegations of misconduct against federally appointed judges is seriously flawed. If left unaddressed, those flaws risk undermining public trust in the process and, by extension, our judicial system.
That is where Bill C‑9 comes in. For the purposes of our consideration this evening, I would like to focus on the main objectives of the bill, namely, to make the judicial disciplinary process fairer, faster and more cost-effective, without compromising the rigour of the investigation, all with a view to ensuring greater accountability to the Canadian public. The bill meets these commendable objectives by proposing a set of reforms that take into account the many competing factors that come into play in a complaint process such as this one.
The bill, as passed by the House, will replace the current process with a streamlined one that includes an internal appeal mechanism that will ensure the fairness and integrity of findings against a judge, rather than allowing the judge to step out of the process and initiate multiple court challenges that can interrupt and delay the case for years, as we have previously seen. The decisions of the internal appeal panel will be final, subject to appeal to the Supreme Court of Canada, with leave.
The bill therefore strikes the right balance to ensure that the most serious and complex cases are not only reviewed as thoroughly as necessary, but that they are also completed in a timely manner. What is more, rather than treating all cases as though they could necessarily warrant the judge's removal, the new process will make a wider range of possible sanctions available. This will allow certain complaints to be resolved both quickly and fairly, avoiding, in many cases, the need for public hearings.
Finally, through the reform process, the bill involves members of the general public at key decision-making stages where appropriate and ensures transparency and accountability to Canadians, while balancing the interests of complainants and judges.
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.
It benefits from the support of cornerstone judicial institutions, most notably, the Canadian Judicial Council, which stands at the very heart of the judicial conduct process that the bill seeks to reform.
As Bill C-9 made its way through this chamber, I was delighted, but not surprised, to see it benefit from significant approval and ultimately receive unanimous support. Once again, I thank the critics from all parties in every part of the House. However, the other place has adopted several amendments to Bill C-9, the majority of which simply cannot be accepted. While I am grateful for the thorough deliberations of the other place with regard to this bill, I am disappointed to see the results of their second thoughts.
Allow me to begin my overview with the amendments from the other place on a positive note. I propose that we support the amendment that would strike the qualifier “As far as possible” from the current text of proposed section 84 in clause 12 of the bill. This provision requires that the Canadian Judicial Council make best efforts in ensuring that the roster of laypersons and puisne judges from which the decision-makers for various stages of the proposed new processes are drawn reflect the diversity of Canadians. The amendment helps to bolster the message sent through our legislative texts that our government, as well as all parliamentarians and, indeed, all Canadians, value the great diversity of our nation and are committed to ensuring that this diversity is reflected in our institutions, including the decision-making bodies of the new judicial conduct process.
We also welcome the amendment that would add complaints alleging sexual misconduct to the types of complaints that cannot be screened out by a screening officer and that must be reviewed by a member of the council. The two other types of such complaints are those that allege sexual harassment and those alleging discrimination within the meaning of the Canadian Human Rights Act. The spirit of this amendment aligns with the overall objectives of the bill and does not otherwise undermine the operation of the proposed new judicial conduct process. While it was unlikely these allegations would be screened out, it being clearly laid out in the text does not undermine the legislation or any ongoing process.
This brings me to the remaining amendments. We cannot support them because they substantially undermine the bill's excellent solution to chronic delays in the current process in two ways. First, it has been proposed to make the decisions of appeal panels reviewable as of right by the Federal Court of Appeal instead of by the Supreme Court of Canada with leave. I remind everyone that the appeal panels provided for by this bill are designed to be the equivalent of an intermediate appellate court to give the judge the same rights and the public the same level of transparency as a court like the Federal Court of Appeal. By making this change, the other place has added a second intermediate level of appeal to the process, giving a judge accused of serious misconduct a second kick at the can, as it were, at the intermediate appellate level before trying to do the same thing at the Supreme Court of Canada, something no other Canadian gets.
This change would reintroduce a substantial portion of the costs and the delays that plague the current process and that this bill was in fact intended to excise. It completely undermines the most central objective of this bill, making the process faster and less costly while maintaining its fairness. I would note that a similar effect was deemed out of scope by our own justice committee.
Secondly, 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, and it would particularly undermine the appeal mechanism. It is undeniable that laypersons can make a meaningful contribution and add great value to a process such as this.
That said, as with the other aspects of this bill, it was important to strike the right balance between factors conducive to the inclusion of laypersons and the inherent limits to their participation. Involving laypersons is certainly appropriate and useful for increasing public confidence in the fact-finding stages of the process. This is precisely where their involvement is provided for in Bill C‑9 as passed by the House.
The Senate's proposed changes jeopardize this carefully established balance by proposing to include laypersons in appeal panels while, in these processes, the appeal panels deal primarily with correcting errors in law. In the context of the judicial conduct process, laypersons are defined as people with no legal knowledge, such as people who do not have the training required to address matters of law.
The Senate is proposing to add laypersons to two other stages of the process where training will be required or considered an important asset. The Senate's proposed changes represent a fundamental redefining of the role of laypersons as set out in the bill adopted by the House at second reading. Accordingly, I believe that they are simply not consistent with the stated purpose and cannot be retained.
The amendments proposed by the other place also undermine the bill's sensitive balancing of confidentiality considerations with the need for transparency. Here again the amendments in this respect go so far as to be out of scope.
As it stands, Bill C-9 includes transparency guarantees that reflect the broader public interest in open proceedings. However, the bill rightly situates the public's interest in open proceedings by building in adequate confidentiality safeguards that protect the complainants and judges who are the subject of the disciplinary proceedings. The other place's amendments would unravel this delicate balance by requiring, for example, ongoing disclosure, even when proceedings have yet to conclude. Perhaps most significantly, the other place's amendments lack safeguards to ensure that the council can protect the identity of complainants who fear reprisals from the subject of a complaint.
In the same vein, the final set of amendments require the collection and public disclosure of an unwieldily amount of information that would be gathered for the purpose of informing the Minister of Justice in deciding whether or not to recommend to the Canadian Judicial Council that new judicial education seminars be established on this information. Since the minister can speak to the council at any time about judicial education opportunities, such amendments are quite literally unnecessary and, as amendments whose primary objective is the establishment of new judicial education opportunities, they are also out of scope.
Hon. members, we have reached a critical stage. As I have reiterated throughout my remarks, Bill C-9 is a bill about balance, balancing interests that are in tension with one another: confidentiality and transparency, fairness and efficiency, independence and accountability. Bill C-9, as adopted in this chamber by all parties, has struck the right balance, a balance these amendments would upset in arbitrary ways that 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.
I look forward to working together toward the common goal of ensuring that this important bill passes at the earliest opportunity. I will again note the urgency raised by the Chief Justice of Canada with regard to passing this legislation and I encourage all of my colleagues in this place to make this happen.
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Mr. Speaker, I am very glad to respond on behalf of the government.
This afternoon we will continue debate on Government Business No. 26, concerning amendments to the Standing Orders. When debate concludes later this evening, we will consider Bill C-35, respecting early learning and child care, followed by Senate amendments to Bill C-9, concerning the Judges Act.
Tomorrow we will consider Bill C-42, respecting the Canada Business Corporations Act, at report stage and third reading, and Bill S-8, respecting sanctions.
The priorities for next week shall include Bill S-8, on sanctions; Senate amendments to Bill C-18, respecting online news; Bill C-40, concerning the miscarriage of justice review commission act, also known as David and Joyce Milgaard's Law; and Bill C-33, which strengthens the port system and railway safety.
Thursday shall be an allotted day.
Finally, I request that the ordinary hour of daily adjournment for the next sitting be 12 midnight, pursuant to order made Tuesday, November 15, 2022.
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- C-9, An Act to amend the Judges Act
- C-35, An Act respecting early learning and child care in Canada
- C-40, An Act to amend the Criminal Code, to make consequential amendments to other Acts and to repeal a regulation (miscarriage of justice reviews)
- C-42, An Act to amend the Canada Business Corporations Act and to make consequential and related amendments to other Acts
- C-33, An Act to amend the Customs Act, the Railway Safety Act, the Transportation of Dangerous Goods Act, 1992, the Marine Transportation Security Act, the Canada Transportation Act and the Canada Mar
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