Hon. Brent Cotter: Honourable senators, I rise to speak as the critic on Bill C-280, An Act to amend the Bankruptcy and Insolvency Act and the Companies’ Creditors Arrangement Act (deemed trust — perishable fruits and vegetables).

I realize I have as much as 45 minutes today. I want to tell you that my speech is 21 pages long. I could call out the pages as I go, if you like.

I want to start on page 0. When I came to the Senate, I confess that I was surprised that I had, almost by accident and by experience in my career, bumped into many of the issues that we are addressing here, and I used to sit over in that corner in the nosebleed seats. I was there with former senator Judith Keating. We would compare notes on, remarkably, the kinds of things that we knew and perhaps didn’t even know that we knew.

One of the things I learned from former Senator Keating during those conversations was why she had asked Senator Percy Mockler to be her sponsor. I am sorry that he is not here at the moment. Some of you who are new to the Senate may know that former Senator Keating unfortunately passed away after only serving here for a couple of years. The temerity of the question was on my part, to ask her why she had asked Senator Percy Mockler to be her sponsor. She told me the reason was that, although she may not have agreed with everything that Senator Mockler stood for, she wanted to be a senator just like Percy Mockler.

Hon. Brent Cotter: Will you take a question, Senator Batters?

Senator Batters: Yes.

Senator Cotter: It’s a great initiative — and great research on your speech. Thanks from all of us for the work you did here. Your friend and colleague Frank Caputo is my former student; I feel bonded to this issue in a certain way. It reminds me of how old I am.

My question is as follows: I agree with you that words matter, but do you — or the sponsors of this bill in the House — have a view about their comfort level around the substance of the offence as well? You mentioned high levels of conviction in Saskatchewan in cases where charges are laid, but what’s your read on that, and whether that’s also a dimension of what might need to be considered here?

Senator Batters: Thank you very much, Senator Cotter. I was going to mention that not only is Frank Caputo a proud product of the University of Saskatchewan law school, but so is the judge, Greg Koturbash, whom I quoted in that case. I don’t know if you taught him as well — anyway, thank you. Kudos for U of S Law.

That’s the thing about private members’ bills. The most successful ones try to take a particular thing and make that change.

So perhaps there is something more to be done about the definition or what have you, but this is the particular part that Mr. Caputo and Mr. Arnold decided to go with, and I think that’s smart. Sometimes a private member’s bill can get a bit too all‑encompassing.

Perhaps that’s something to look at in the future, but this is what we’ve chosen to do right now. Thank you.

(On motion of Senator Patterson (Ontario), debate adjourned.)

Hon. Brent Cotter: Honourable senators, I rise to speak briefly about Bill C-9, An Act to amend the Judges Act. I support the bill and recommend its adoption in the Senate.

I should say at the outset of my remarks that I have benefited significantly from an opportunity to review a not-yet-published paper by my friend and colleague in the field of legal and judicial ethics, Professor Richard Devlin at the Schulich School of Law at Dalhousie University. Professor Devlin is one of the leading Canadian scholars in the field of legal and judicial ethics and has in a very short time produced a scholarly analysis of the bill, which I hope he will be in a position to share more broadly. He may not agree with my remarks today — I want to be clear on that — although I think that he and I have similar perspectives on the bill.

As the sponsor of Bill C-9, Senator Dalphond highlighted in his excellent speech last week that the bill seeks to modernize the process by which complaints of misconduct against senior judges in Canada are handled. To my mind, Bill C-9 is part of a continuing process of modernizing and strengthening our expectations of judges and putting in place improved processes to achieve judicial accountability.

One part of that process was, in 2021, the adoption by the Canadian Judicial Council of modernized Ethical Principles for Judges, which articulated, in my view, a rich statement about — as Professor Daniel Jutras, an adviser to the group, described it — the ethical identity of a judge.

That modern version articulated explicit new expectations of judges in relation to, among other things, competence, respect for participants in the judicial process, engagement with the public, expectations of judges and their offices with respect to harassment and so on.

With respect to judicial discipline, as Senator Dalphond noted, this topic has bedeviled the judiciary and the Canadian public for some decades. Bill C-9 embraces a number of principles in developing a modern discipline process by which complaints can be considered. I want to focus on four aspects of that in my remarks: judicial independence, accountability, efficiency and transparency.

Before I do so, I want to tell you two stories that, to my mind, humanize the questions of judicial conduct and accountability for lawyers, and especially for clients, and make the case for this very important bill.

When I was a young lawyer, for the grounds of divorce, even if uncontested, the person seeking the divorce was required to appear before a Superior Court judge and testify. I represented a woman who was seeking a divorce on the grounds of physical cruelty. She testified that when she was having a falling-out and decided to leave her spouse, she was putting on her coat to leave when he asked, “Where are you going?” She said, “I’m leaving you and I’m going out to look for an apartment.” The man punched her in the face and knocked her off her feet. After she testified, the judge asked me what the grounds were of the physical cruelty that I was alleging, and I said that it was the punch in the face and being knocked off her feet. The judge said, “That’s not physical cruelty. She deserved that.” He dismissed her application for a divorce.

I was a young lawyer — and I was mortified, quite frankly. The woman was crushed by this. There is an appeal process, but that drags out the process. We found a workaround — I didn’t know what to do. I spoke to the chief justice of the court. He said he would have a quiet conversation with the judge — and that was all.

I have a second example — somewhat more recent. I was representing a person who had won a $2,000 award in small claims court. For some reason, the people on the other side appealed the judgment. It then went to the former county court in Nova Scotia. The judge heard the case, required us to make a full presentation over this $2,000 and reserved judgment — that is, the judge took it under consideration. I worked at Dalhousie Legal Aid Service for a period of time. I left to work again at the law school at Dalhousie University. Three years later, I returned to the clinic, and the judge had still not issued his judgment on this $2,000 claim. I met with the chief justice of the province — I did not know what to do. His advice was to just keep quiet about it, and wait for the judgment. I waited. The judge died. I was very fond of that particular judge, but this was not helping my client. We had to then find a workaround, or relitigate the case.

These issues are frustrating to a lawyer. I lost a lot of cases — not too many quite like this. But it was unbelievably unfair to the client. The client’s job is only to receive justice in her case — not solve the problems of judicial accountability.

I think it is fair to say that previous processes have been respectful of judicial independence — which is important, as I will say in a moment — but have been much less successful with respect to judicial accountability, efficiency and transparency. In my view, Bill C-9 continues to respect the principle of judicial independence, but improves on each of those other fronts.

That said, and while I support the bill, it is helpful to note that it is not a complete success in some respects, and I will mention a couple of these in the closing part of my remarks. However, it is worthwhile to say a word or two about the importance of this bill, and the way in which it strikes, I think, a delicate balance: On the one hand, it respects judicial independence, and, on the other hand, it respects the public expectations of judicial accountability.

When the bill was being considered at committee in the other place, one member of Parliament commented that the complaints on the discipline system for judges are “pretty dry stuff.” I think that’s true. But it is extremely important — more important than meets the eye.

In Canada, we are blessed with, perhaps, the most competent and principled judiciary in the English-speaking world. While people — from time to time — disagree with judicial decisions, we have significant faith in the judiciary to render thoughtful, fair-minded, independent judgments — reached in an impartial way. We work hard to protect the independence of that decision-making process through principles and laws. This preservation and protection of judicial independence is not primarily — or even significantly — for the benefit of the judiciary. It is for our benefit because a fair, independent decision process is critical to our own confidence — not just in the judiciary, but in the administration of justice more generally and the rule of law.

At the same time, public confidence in the judiciary, and the administration of justice, can be jeopardized if the public perceptions are that members of the judiciary are not held accountable for conduct that falls below the standards expected, as well as articulated in other places, such as the ethical guidance for judges. Related to that, public confidence in the judiciary is jeopardized if those processes take too long — and many have done — or are far too expensive at the public purse’s expense or, particularly, if they are not transparent.

I think it is fair to say that, historically, the process to investigate and discipline judges for misconduct has underperformed on these three fronts. As Senator Dalphond has noted, and others have commented, the process has been gamed by judges in order to extract maximum personal benefits and, in the end, avoid official sanction.

Here are a few observations of how the bill has sought to remedy these problems:

The first observation is with respect to transparency. The bill creates opportunities for participation in aspects of the process by non-judges, while carefully preserving judicial independence. This is done by striking a delicate balance. It leaves the decision process related to discipline primarily in the hands of judges, and that can lead to a potential recommendation to the Minister of Justice — under section 99 of the Constitution — for the judge’s removal from office.

Lay people and lawyers play a role in some aspects of the discipline process at the review panel stage, as well as at two types of the hearing panel established under this legislation: the so-called reduced hearing panel and the full hearing panel. The latter takes place near the end of the process in cases of allegations of serious misconduct. The full hearing panel, for example, is composed of one lawyer and one layperson on a five‑member panel. In these cases, judges continue to make up a majority of the panel responsible for the decision making but, on balance, I think this is necessary to preserve judicial independence and, at the same time, build public confidence in an independent judiciary.

Once the matter reaches the stage of hearings, those hearings are presumptively public with limited exceptions, increasing transparency.

I would like to see more space for complainants in the process, as would my friend Professor Devlin, but these are definitely improvements in the existing process.

With respect to efficiency, the number of layers of review has been reduced, though only modestly. The legislation seeks to create an appeal process that will avoid burdensome, much delayed and highly expensive judicial review avenues that judges have pursued in the past. As well, in support of efficiency and reduced costs, judges’ pension and pay benefits may be able to end at a sooner point in the process, reducing the incentive for a judge — facing serious sanctions — to prolong the process once pay or pension entitlements become moderated.

I have some reservations, as does Professor Devlin, about whether the new regime will achieve significant goals related to efficiency, but I think we can be hopeful. One aspect of the amendments that will contribute to efficiency is that the roles of participants have been clarified. This lack of clarity — under the existing regime — has complicated hearings in the past, generating, in some cases, years of delay and enormous cost. The new process, in cases of serious matters, moves away from an inquisitorial process — with this confusion of roles — to a more adversarial process. Indeed, the legislation describes how the presenting counsel, which is the person who presents the case against the judge, is expected to conduct themselves in accordance with the standards and principles that govern the conduct of Crown prosecutors. You get the shape of it.

Lastly, I will speak on accountability. I attended a legal and judicial conference in Vancouver in 1980 when matters of judicial discipline were not much in the public eye. At the conference, a senior judge in British Columbia was asked about judicial accountability. The judge replied, “Accountability? To whom am I accountable? I am accountable to myself.”

The judge who provided the answer was among the most respected judges in this country, and I think what he was saying was, “I take my job seriously, and I live up to standards of ethics and professional conduct.” However, the statement did seem to emphasize an imperial approach, and a lack of public accountability. Much has changed from that time to now. Public expectations of discipline around judges have brought us to this point — a good point.

Indeed, a number of aspects of the bill, and the associated developments, will build public confidence, in my view.

Bill C-9 improves the process by which complainants will be considered. There is greater transparency in the process. The bill moderates the ability of judges to prolong the process and game the system. It could be better in some respects, but this delicate balance needs to be struck. I think it has been well struck in this bill.

In closing, I wish to identify two specific concerns that could be captured in observations if the committee reviewing the bill was so inclined.

First, there is room for more meaningful treatment of complainants through the development of Canadian Judicial Council policies. This is actually identified in the bill, and there is space for that, and I hope this message can be conveyed by us to the Canadian Judicial Council.

A second suggestion strikes a bit closer to home, even for us. As I understand it — and here I am indebted to Senator Dalphond — the way in which the honorific “Honourable” works for superior court judges is that on retirement they give up the honorific and then through some process, opaque to me, get it back again. I presume that this occurs through some federal judicial office. It strikes me as imperative that when a judge is removed from office or resigns in the face of judicial discipline, there is a policy in place to the effect that they do not get their “Honourable” back.

We likely need such a process in this house, which I hope, in time, we will develop.

In conclusion, then, while I have some modest reservations about the bill, I think that it is an excellent step forward and I urge you to support it when votes come for it. Thank you.

Senator Cotter: My short question is about the bijural nature of Canada, not specifically to this bill, but the question will get there.

As you may know, Senator Dalphond, Paul-André Crépeau, a distinguished Canadian, is sometimes described as the father of the modern Civil Code of Quebec. I’m mentioning him in particular because, as you may know, he was born in Gravelbourg, Saskatchewan, has received honorary doctorates from Dalhousie University and the University of Saskatchewan and has a doctorate of laws from Sorbonne University. My question is partly in terms of the constructive bijural nature of Canada, which is emphasized by his work. Would he have anticipated the need for the exercise we are now going about, and do you think he would have supported this as a corollary requirement of supporting the bijural nature you spoke of?

Hon. Brent Cotter: I’ll save my question for another time.

Hon. Brent Cotter: Honourable senators, I rise to speak to Bill S-231, as sponsored by Senator Carignan. I speak in support of the bill with two significant reservations that I hope will be studied at committee.

I see this bill as a contribution to the improvement of the administration of criminal justice in Canada and a contribution to public confidence in law. You all know the challenges: wrongful convictions, wrongful acquittals, et cetera. My remarks are divided into five parts for two reasons: first, to keep me on track; and second, more important, so you can know, perhaps with relief, when I’m getting near the end.

First, an account of law in everyday life. Rod Macdonald, former dean of law at McGill University and now, sadly, deceased, a giant in legal education, wrote an insightful book a number of years ago entitled, Lessons of Everyday Law. He did not use the example I’m about to share with you, but I do want to give you an example of law in everyday life associated with me and my children and perhaps yours. The example is, in a roundabout way, associated with this bill.

When one of my children appeared to have done a bad thing, usually my son, I wanted to find out what happened and perhaps to impose a sanction. I didn’t let him “take the Fifth.” I didn’t require proof beyond a reasonable doubt. Law in everyday life in our household didn’t exactly follow the rules of the criminal law or the Charter of Rights and probably does not in your household either. Unlike that, the criminal law is not quite law in everyday life.

My second point is the criminal law and the frailty of evidence in criminal cases. As we know, in criminal proceedings, various procedural protections are made available to persons accused of crimes. As well, the admissibility of evidence is complicated. The standard of proof for a conviction is high: proof beyond a reasonable doubt. Given the consequences of the finding of guilt and the deprivation of liberty, it is a high standard, justifiably so, and it has been a standard in the criminal law for a very long time. It’s different from what happened in my household, but justifiable, I think.

Most commonly, evidence is introduced to establish a person’s guilt by viva voce evidence — people’s oral testimony based on people’s memories, recollections and veracity. Many research studies have shown the fallibility of people’s memories and how often, even without malice, they fail to observe or misremember the true story.

All of us have experienced this. Let me offer one embarrassing personal example — at least embarrassing to me.

I’m a golfer, but not a very good one. I played golf one time at a very nice golf course, and I had what I thought was, for me, a very good score. Over the years, I recollected that score, and the number got lower and lower as time went on, and I came to believe I had gotten that lower score. Some years later, I encountered the golf score card that you write your scores on, and I was shocked that I had gotten in reality a much higher score than I thought. Human fallibility, I hope.

As well, for the decision maker, the judge or jury in criminal law matters, our ability to detect veracity — whether a person is telling the truth or not — is remarkably fragile. The evidence regarding judges’ and others’ inability to distinguish liars from truth-tellers is striking.

Some years ago, I attended a major judicial conference in Victoria, organized by our colleague, Judge Arnot, as he was known then. One session was dedicated to simulations to identify liars from truth-tellers. I was terrible at it. But I took some consolation, ironic upon reflection, that the judges taking the exercise were just as bad as I was.

Indeed, I have another friend, a former judge, who cynically used to say, “Most criminal cases are decided on a balance of perjury; that is, whoever tells the best lies — and tells them best — wins.”

My point here is not to demean the criminal justice system or judicial decision makers but, rather, to underline the challenges the system presents in getting it right. Part of the fault is not in the stars, but in ourselves and in our own human fallibility.

My third point is David Milgaard and the argument for DNA science.

Most of us are aware of the story of the tragic, wrongful conviction of David Milgaard for murder, and the heroic life he led after he was exonerated. Here is a little bit about that story.

After Mr. Milgaard’s conviction was set aside, he remained in no man’s land: His conviction was overturned, but his name was not cleared. Even the then minister of justice opined during this time, unfortunately and unwisely, that he thought Mr. Milgaard was guilty.

A wide-ranging review was undertaken, but it did not move the needle on the guilt — or innocence — of Mr. Milgaard. In my opinion, we are liable to have been stuck there if not for DNA.

There was a small amount of badly degraded bodily fluid on the clothing of the deceased victim, Gail Miller, believed to be semen from a sexual assault committed upon her, prior to her brutal murder. At the time, it was believed that, given the degradation of the bodily fluid over some decades, there was, at best, a 20% chance of the DNA analysis definitively identifying the perpetrator.

I was the Deputy Attorney General of Saskatchewan at the time. The clothing with the bodily fluid was notionally in my possession. I was urged — strongly in some quarters — that, because of the high degree of likelihood of no result due to this degradation, I should not agree to the DNA testing. I ordered the material to be tested.

Science brought us a definitive answer. The DNA tests, and only the tests, definitively exonerated Mr. Milgaard and led to the conviction of the true perpetrator, Larry Fisher.

Colleagues, I’ve made some good decisions in my career, and I’ve made some bad ones. My decision, contrary to advice, to have that DNA testing done was, I think, the best professional decision I ever made.

I’ll direct our discussion to Bill S-231. While some Canadians may not be aware of this, presently judges are empowered to order the taking of DNA from an adult or youth, who is convicted of certain offences, and have that DNA placed in a data bank. The power to do this has been upheld in the courts.

Building on this process, Bill S-231 proposes to amend the Criminal Code, Criminal Records Act, National Defence Act and DNA Identification Act, with a view to increasing the number of DNA profiles in that bank.

Proponents of the bill argue that increasing the DNA samples available increases the chances that the police will find a match and, in turn, provide meaningful scientific evidence associated with a crime — essential evidence to identify perpetrators.

This legislation would significantly broaden our ability to collect DNA by broadening the list of offences, known as designated offences, for which DNA collection is allowed. It would automatically allow the collection of DNA from all adult offenders and youth offenders convicted of virtually all serious offences under the Criminal Code and other acts — offences punishable by imprisonment of five years or more.

The legislation would also restrict judicial discretion, limiting the circumstances in which judges could refuse to grant a collection order.

In the interests of improving outcomes in the administration of justice, with minimal impairment on the rights of offenders, I support this initiative. I believe it will make a contribution to the quality of investigations and decision making in the criminal justice process, and I believe it will use science — in a good way — to help us get things right more often.

I turn to my final point, which is a qualification, or reservation, I have about the bill — one of two reservations. One is collections on arrest, but I will speak here to familial searching.

While the legislation keeps anonymity safeguards in place under the code and the DNA Identification Act, this bill does go further. In certain circumstances, it allows use of the bank for what is called familial searching, which would allow Canadian police to identify suspects — by the DNA left at the crime — by comparing them with a biological relative whose material is in the DNA data bank. Concerns have been raised about this here, years ago, and, more recently, in papers that have been written.

I have reservations about familial searching. It’s a privacy issue. It has a Big Brother aspect, and that makes me uncomfortable. The Assistant Privacy Commissioner of Canada said in a precise, poignant quote about a dozen years ago: “. . . does being the relative of a convicted offender decrease a law abiding citizen’s right to privacy?” I don’t have a definitive answer on that, but I think it’s an important question for us to study.

I am hopeful that, when the bill is studied at committee, this aspect will also be scrutinized — and that my discomfort will either be laid to rest or confirmed.

The bottom line, for me, is that Senator Carignan’s work in this area, and this bill in particular, will be a positive contribution to the administration of justice. It deserves to be supported and studied at committee in a timely way.

Thank you.

(On motion of Senator Petitclerc, debate adjourned.)

On the Order:

Resuming debate on the motion of the Honourable Senator Klyne, seconded by the Honourable Senator Harder, P.C., for the second reading of Bill S-241, An Act to amend the Criminal Code and the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act (great apes, elephants and certain other animals).