Bill C-9

An Act to amend the Judges Act

This enactment amends the Judges Act to replace the process through which the conduct of federally appointed judges is reviewed by the Canadian Judicial Council. It establishes a new process for reviewing allegations of misconduct that are not serious enough to warrant a judge’s removal from office and makes changes to the process by which recommendations regarding removal from office can be made to the Minister of Justice. As with the provisions it replaces, this new process also applies to persons, other than judges, who are appointed under an Act of Parliament to hold office during good behaviour.

[The Chair, Liberal, Randeep Sarai]

I want to thank all the witnesses in this study for the time they've given us. It's very valuable testimony.

That concludes the testimony part of this meeting.

I have a few matters that I want to mention. Witnesses are free to leave if they want to, or they can sit around with us if they would like to see this.

Members, we will be proceeding to the study of the draft report on the government's obligation to the victims of crime. You should receive a confidential first draft tomorrow in order to prepare for Monday's meeting. Hopefully, that will give us enough time. That's what the analysts have told me.

We'll have to adopt a budget to reimburse our witnesses who appeared on Bill C-9 and adopt the revised budget for the trip in March 2023.

I also want to remind you that you have a deadline to submit amendments to Bill C-9: Monday, November 28 at 6 p.m.

Finally, yesterday we received Bill C-291, an act to amend the Criminal Code and to make consequential amendments to other acts regarding child sexual abuse material. We will have to find time to proceed to this study. It is Mr. Mel Arnold of North Okanagan—Shuswap who has presented this bill in the past. At the latest, we have to report the bill 60 sitting days after the date of the order of reference. That is April 26, 2023, so we have some time for that.

Go ahead, Mr. Garrison.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

Thank you, Ms. Devost.

Now I'm going to step away from Bill C‑9 a little to ask you if it would be useful to review the judicial appointment process based on the various criteria we're talking about today or other criteria.

Do you see any value in changing the way we appoint judges in Canada?

[Karine Devost]

Exactly.

The applicant who had been hired for the position had all the qualifications required to fill it. After the judge called the University of Toronto, everything fell apart for her. What the judge had done was exercise a form of lobbying.

When the complaint was made, the vice president determined that there might be suspected partiality and for that reason, the appointment process was to resume.

The lobbying by Justice Spiro was indirect, unlike the lobbying by Justice Donald McLeod, who met with ministers and members of Parliament on behalf of a non-profit organization. That's why we say that, however subtle, lobbying is still lobbying.

We want Bill C‑9 to take into account all forms of lobbying to avoid any differences in interpretation.

Does that answer your question?

[Yasir Naqvi, Liberal, Ottawa Centre, ON]

Thank you.

Ms. MacGregor, I will go to you now, and I'll come to your proposal on proposed section 84, which is the section you were speaking to. However, with the exception of that particular concern or that enhancement of the language that you want to see, I take it that you and your organization are supportive of Bill C-9 and the way it lays out the mechanism for judicial conduct.

[Yasir Naqvi, Liberal, Ottawa Centre, ON]

With the exception of these two suggestions, these two amendments that you are proposing, am I correct in assuming that, otherwise, NCCM supports Bill C-9 and feels that it enhances the process of reviewing matters of judicial conduct?

[Nneka MacGregor]

It was really to suggest that Bill C-9 incorporate something more substantive around cultural training for everybody who's going to be part of the process, not just on race, but also on gender.

I note that proposed section 84 talks about diversity, but the thrust of our argument is that just mentioning doing everything we can to ensure there is diversity doesn't do enough to uproot the systemic racism that is embedded in the judicial system.

[Christopher Budgell]

My concern, like anybody in my position, is what happens at the very beginning of the process.

You have what you call a “screening process” in the hands of the executive director and general counsel. I don't know how many complaints are dismissed at that point. I know mine was. Actually, it was the second one. I sent one in before that one. It's over for the majority of people right there.

There are two screening stages right now. I expect there will be, if Bill C-9 goes through. Those are—

[Larry Brock, Conservative, Brantford—Brant, ON]

Thank you, Chair.

Thank you to all the witnesses who are here in person and online. Your participation is noted and very valuable to us, so I thank you for that.

I'd like to inform all our panellists that this bill is going to pass. It is receiving consent and approval from everybody on this committee. I bring that to your attention because I want to start off by questioning you, Mr. Budgell, and I listened very carefully to your commentary.

You indicated that the justice system is in crisis, and that Bill C-9 can't be fixed and shouldn't be enacted. I did a little bit of research on your background, sir, and I understand that the National Post has proclaimed you “a self-appointed citizen watchdog” of the CJC.

I understand that, in one of your blog posts, you've opined that Parliament has a unique opportunity “to create an entity fully independent from both the judiciary and the executive branch to receive complaints and decide how to respond to them”. In your opinion, “this is the right solution. It always has been.” In your view, the fundamental problem with the CJC is that “[j]udges judging judges doesn't work.”

I take it, sir, that you still stand by that position.

[Karine Devost, Senior Legal Counsel, National Council of Canadian Muslims]

Thank you, Mr. Chair.

Good afternoon to the committee members.

My name is Karine Devost.

I am the senior legal counsel for the National Council of Canadian Muslims. We want to thank you for giving us an opportunity to be here today to provide our recommendations regarding Bill C‑9, an act to amend the Judges Act.

We want to be clear at the outset that we are supportive of the goals of this legislation and of the legislation broadly. The proposed reforms to the Judges Act aim to enhance the Canadian Judicial Council's capacity to effectively respond to all allegations of judicial misconduct against federally appointed judges, not just highly serious instances potentially warranting removal from office.

We are supportive of the passage of Bill C‑9 but have two targeted amendments we want to raise that we submit will improve this legislation.

We are here to make two specific recommendations. The first one pertains to lobbying. The second amendment broadens the wording that is found at proposed subsection 90(3). I will explain that later.

First, we're recommending to amend proposed section 80 to add a proposed paragraph 80(c) to include “lobbying, directly or indirectly;” and for the current proposed paragraphs (c) and (d) to become (d) and (e).

We're recommending this amendment so that the motives or intentions of a judge in their lobbying efforts are not left to interpretation, which very often leads to different results. I can give you two examples.

For example, in a recent decision from the Federal Court involving Justice David Spiro from the Tax Court, the complaints alleged that Justice Spiro was actively engaged with a lobby group attempting to interfere with the appointment of a professor at the University of Toronto whose views were at odds with those of the lobby group. The Honourable Madam Justice Kane of the Federal Court agreed with the review panel of the CJC, which determined that Justice Spiro engaged in improper conduct but his conduct was not serious enough to impose the ultimate penalty for judicial misconduct. This matter did not go to a full hearing.

Conversely, we have the case of Justice McLeod, here in Ottawa, in which he was involved with a non-profit organization and was advocating for social and legal reform for a certain group. In this case, the review panel determined that Justice McLeod engaged in “impermissible advocacy and lobbying” and his matter proceeded to a full hearing on the complaints.

Our amendment attempts to provide uniformity in the law and gives no room to interpretation, so whether you are actively lobbying or subtlety sharing emails that contain a position on a political issue like the one in Justice Spiro's case, the complaint will automatically go to a hearing. This will avoid different readings of the same law, which, as we have seen from the cases I've illustrated, resulted in different outcomes.

As I mentioned earlier, we also seek to amend proposed subsection 90(3) by broadening the scope of impermissible misconduct that would restrict the screening officer from dismissing a complaint. As the provision stands, serious misconduct that may warrant a hearing but does not meet the threshold of discrimination or sexual harassment may be dismissed.

We appreciate and, like most lawyers, applaud the CJC decision in the past to remove former Justice Robin Camp; however, our concern is that misconduct like his will be dismissed because it does not necessarily equate to sexual harassment or discrimination. Justice Spiro's case is a good example that further outlines our concern: A screening officer may dismiss a legitimate complaint because it does not appear to be discriminatory on its face.

That is why it's necessary, at least in the initial screening stage, to apply a broader language that captures misconduct that is not directly discriminatory but can still erode the public confidence in the judiciary and bring into question a judge's impartiality.

Thank you.

[Christopher Budgell, As an Individual]

I'm just going to read my opening statement. I hope it is short enough to leave me with a little additional time.

From the record that I've been able to review so far, it appears that I'm the first witness, and maybe the only witness, the committee has heard from who is not a system insider. I note that you've heard from a couple of them, Professor Craig Scott and Professor Richard Devlin, who are telling you things you haven't heard from Justice Minister Lametti and his Department of Justice staff.

I am here solely because of my determination to be here. Where are the other voices speaking for the public?

I know that you haven't heard from any of the judges who are, or were before they retired, subject to the Judges Act.

My immediate purpose in speaking to Bill C-9 is to argue that it should not be enacted because it cannot be fixed.

I can go beyond that. You, the members of this committee, have a golden opportunity. The legal establishment's own dialogue, a good deal of which is accessible to the public, attests to the fact that Canada's justice system is in crisis. Perhaps that is “justice systems in crises” because there are many components and many issues.

If you proceed now to recommend to the House of Commons that it pass Bill C-9 and send it on to the Senate, you'll have missed a precious opportunity. The CJC perfectly illustrates the crisis or crises that the legal establishment is facing. The ship that is crewed by the legal establishment needs to be turned around to face the bow into the wind. This is an opportunity to start turning that ship around.

The publicly accessible record of the legal establishment's dialogue with itself shows that a principal concern, if not the principal concern, is the impact of these crises on lawyers, including judges themselves. Two sources I can note are The Lawyer's Daily, which is an excellent publication that has served the legal profession for years, and the blog slaw.ca. There have been many articles and posts about the stresses that lawyers and judges are facing—stresses that result in a good many of them suffering depression and even what they concede is mental illness.

There has been far less concern expressed about the impact of those systemic problems on litigants, especially those of us who are compelled to be self-represented.

On that note, I want to specifically mention two members of the legal establishment. They are Justice Yves-Marie Morissette of Quebec's Court of Appeal and Donald J. Netolitzky, who, as an employee of the Alberta superior courts, has the curious title of “complex litigant management counsel”. I would characterize what they have been doing as building a thesis about what they like to call “querulous litigants”—the most extreme kind of what are conventionally called vexatious litigants.

Justice Morissette did not coin the term “querulous litigants”. He attended an international conference held in Prato, Italy in 2006. Subsequently, he addressed a meeting of the Canadian Association of Counsel to Employers with a speech entitled “Querulous and Vexatious Litigants as a Disorder of a Modern Legal System”.

The CACE posted a copy of that speech on their website. After I found it there and began commenting publicly about it, they removed that copy. There's a copy currently on the website of an entity called ProQuest. I have had some success accessing it there, but not consistently, as it appears to be a subscription website. I have attached a copy that I saved.

Donald Netolitzky has built on Justice Morissette's original thesis and is continuing to do so. They don't, of course, claim that all self-represented litigants are querulous or even vexatious, but those are the ones on whom they have focused their attention.

One reason this interests me is that my own history of litigation matches their description of the classic querulous litigant, so I can see what they are doing.

I've just found a program of a meeting held last May in which Mr. Netolizky contributed another version of his thesis: “The Responsibility of the Tribunal to Accommodate Users with Mental Health Issues”. To access it, you can go to a link to Donald Netolizky's....

Am I done? Okay. That's it.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

Thank you very much, Mr. Chair.

There was another issue raised in our first session on this bill, about the disclosure of the reasons for referral to a review committee and the legal reasoning that was used to reach a conclusion in the review panel.

In the current practice—and it seems it would be the same under Bill C-9—the complainants are only given a summary of reasons. They're not actually given the legal reasoning. The argument was made that you only get to see those once you file, as a complainant, an action for judicial review. That is costly, but it also results in the automatic release of those to the person.

The suggestion was made that we, perhaps, should amend Bill C-9 to ensure that those reasons are released at an earlier stage. That might, in fact, prevent people from deciding to ask for judicial review. In order to see the reasons now, they actually have to ask for a judicial review.

I wonder if the Canadian Bar Association has any comment on that kind of paradox—I don't know what I would call it—that gets created there: that if you want a review, you can't see the reasons until you ask for the review.

[Indra Maharaj]

Thank you.

Alternative dispute resolution is not included as an obligation in Bill C-9. As a preliminary step, there doesn't appear to be, in my mind, anything that would preclude a conversation towards an alternative dispute resolution or a mediation-style resolution, particularly with respect to the screening level of complaint.

With respect to serious misconduct that could result in removal, I don't know that mediation would be something that would be valued by all of the parties involved, so I can't comment on that.

I don't see in the bill that there is a requirement or an opportunity for mandatory mediation, but that doesn't preclude it from being a practice or a procedure at a more administrative level.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

Thank you, Mr. Chair.

Ms. Maharaj, I'd like to return to the question of mediation, which we didn't really have enough time to discuss in the first round of questions.

Although, of course, there can still be discussions about the rules, the disciplinary process does not provide a mediation mechanism. Would it have been a good idea to consider formal mediation meetings between the judge against whom there has been a complaint and the representatives of the Canadian Judicial Council to try and find a negotiated outcome?

I think that the new provisions in Bill C‑9 might encourage judges to try and avoid a trial or a hearing before the Canadian Judicial Council.

Do you feel it would have been a good idea to provide for a mediation mechanism like that?

[Yasir Naqvi, Liberal, Ottawa Centre, ON]

Thank you.

As we are deliberating on this particular bill, I'm of the view—and I've presented the position before in this committee—that a process around judicial conduct is a bit unique, unlike other administrative, tribunal dispute resolution processes, especially given that we're dealing with the judiciary.

There is a very important principle around maintaining and protecting the independence of our judiciary. Any system that is crafted must instill, enhance and foster the public's confidence in an independent judicial process.

Do you think, in CBA's assessment, that Bill C-9 as presented accomplishes that important goal?

[Indra Maharaj]

That's an interesting question. I think the change to include lay members on the hearing panels adds a significant amount of transparency to the process. The fact that we will have the point of view of the public is valuable in that regard. Certainly, public hearings are public hearings, so that creates an amount of transparency as well.

I do believe that Bill C-9 has tried to seek and establish that balance between those matters that are smaller and may not require being made public because they can be addressed through the screening process versus those matters of more significance where we start to see a more formalized administrative process and hearing process. I think the involvement of the public in particular—the lay members—is a valuable addition.