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.

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

Thank you, Mr. Chair.

Thank you to the both of you for being here today. This is indeed an important bill, so the Canadian Judicial Council's view is obviously of the utmost importance. I'm glad that you're both here.

The case involving Judge Girouard came up earlier. It's one that can't be ignored. It would be nice if we didn't have to talk about it, but it has captured the attention of the media and the entire judiciary in recent years.

Far be it from me to say that judges should not be allowed to appeal or challenge the council's decisions. That's probably true for everyone. Nevertheless, the process has to have some limits, and I think that's what Bill C‑9 seeks to do. However, it does not set any limits on something that keeps coming up in the public space, legal costs.

I don't want to get into the specifics of the case I just mentioned, but abuse of process not only delays the proceeding, which has costly salary and other implications, but also results in considerable legal fees. One question keeps coming up. If the judge is found guilty and the decision is warranted, why wouldn't the lawyers' fees have to be repaid, at least for the judicial process? It might be possible. It might not. Could the judge be made to repay all or some of the legal fees if proceedings were found to be unnecessary or frivolous? I don't know.

Have you explored that possibility?

I'd like to hear from Mr. Giroux and, then, Ms. Corado.

[Jacqueline Corado]

As per the values, the ethical principles were reviewed very recently to adapt to the evolution of times and the landscape of the law. All those values are included in our ethical principles. Bill C-9 is more about remedies and tools when there is a case that deserves the attention of council.

I will bring you back to my initial comments that security of tenure is protected by the Constitution. For something that is so protected and important in our society for the democracy of this country, the reasons for removal have to be very serious.

The process now needs to be streamlined, and this is what Bill C-9 is intended to do. As for other comments that were brought—

[Jacqueline Corado]

I'd also add that the proposal would add another layer, and this is what Bill C-9 is trying to cut—all the delays that are, basically, relitigating and rebringing forward those comments from the judge or those procedures from the judge.

Again, I respect the proposal, but it would add another layer, which is counterproductive to what Bill C-9 is trying to do.

[Tako Van Popta, Conservative, Langley—Aldergrove, BC]

Thank you.

An earlier witness today, Ms. Conlon from The Advocates' Society, on the one hand is applauding Bill C-9, saying it is definitely an improvement, but on the other hand says that building in these efficiencies of no appeals or only internal appeals was an overreaction. Their organization is recommending an amendment to Bill C‑9 to include the ability over the right to appeal to the Federal Court of Appeal, not to the trial court but to the Court of Appeal.

What are your comments on that? Would that be an improvement that we should consider?

That's for either one of you.

[Jacqueline Corado]

With the case of Girouard, now it's done. He has resigned. He lost the application for appeal to the Supreme Court, but it was indeed a case that dragged on. There were multiple judicial reviews. This created costs and delays. This is what Bill C-9 aims to correct, that no more judicial reviews of this kind will drag on forever.

Right now the process, and what was done in Girouard, is that every decision of council is brought to the Federal Court for judicial review. That creates a very long delay.

With Bill C-9, there's going to be an appeal mechanism. There's a part of a clause that doesn't allow for those judicial reviews anymore. In that context, it provides the balance of procedural fairness for the judge to contest a decision of council. It also provides for council to streamline.... I think Minister Lametti gave a good example: that the process keeps going up instead of going sideways, with multiple judicial reviews that create undue delays.

[Tako Van Popta, Conservative, Langley—Aldergrove, BC]

Thank you, Chair, and thank you, witnesses, for being here. This is a very important study. We're studying judges judging judges.

At this committee we've heard testimony on previous studies, one on the victims of crime and another on the defence of extreme intoxication. We are hearing from witnesses who feel the justice system isn't very just to them.

We heard one executive director of an abused women's centre say that if this defence of extreme intoxication becomes permanent, as women, they receive the message loud and clear that they are not safe in Canada. Now, whether or not that position is justified, it is a commonly held understanding or perception of the justice system.

I'm moving on to the functionality of Bill C-9 and the functionality of the Canadian judicial system.

There is the case of Quebec Superior Court Justice Michel Girouard, who is fighting the Canadian Judicial Council's recommendation that he be removed. It went through appeal and appeal and appeal. It's dragged on for years. Again, this puts the Canadian judicial system in a bad light in the eyes of the public.

This is for you, Ms. Corado.

How does Bill C‑9 improve the public perception of how justice is administered in Canada?

[Jacqueline Corado, Senior Counsel, Canadian Judicial Council]

Thank you, Commissioner, and thank you again, honourable members of Parliament, for your invitation to speak on Bill C-9.

This is something the Canadian Judicial Council has indeed been looking forward to. You will know that the Chief Justice of Canada, as chair of the council, has spoken publicly on a few occasions on the need to bring this reform in order to bring more efficiency and transparency to the judicial conduct process for the benefit of all Canadians.

As already indicated, the council has also worked on the proposed reform with the Department of Justice and the Canadian Superior Courts Judges Association. We look forward to the adoption of Bill C-9.

As you know, section 99 of the Constitution Act, 1867, provides for the security of tenure of judges, which is a key element of judicial independence. A judge of a superior court can be removed from office only by the Governor General on address of the Senate and House of Commons.

Judicial independence means that judges must be free to decide independently from any form of direct or indirect coercion. However, judicial independence does not require that the conduct of judges be immune from inquiry. On the contrary, as stated by section 99 of the Constitution Act, 1867, a superior court judge shall remain in office “during good behaviour”. Therefore, an appropriate system for the review of judicial conduct is crucial to maintain public confidence in the judiciary.

It is from this standpoint that the Canadian Judicial Council was created.

The council is the only body mandated to determine when the obligation of good behaviour under section 99 of the Constitution has been violated, as well as which type of misconduct is serious enough to merit the removal of a judge.

Of course, not all complaints warrant a recommendation fo removal from the bench. In fact, the vast majority of complaints received by the council either do not fall under its authority or have no basis—often because they are related not to judicial conduct, but to the judge's decision or because they are frivolous.

That brings me to the current process and how Bill C‑9 would improve it.

Currently, a full judicial conduct review process is composed of five stages within council. The first two stages have been qualified by the courts as a screening stage. The third stage of the process is a review panel that will decide whether an inquiry panel needs to be created, if the complaint is serious enough to merit the removal of a judge.

Under Bill C-9, the review panel will also have other tools. It will be able to impose other types of remedy for misconduct, such as private or public apologies, counselling or continuing education for the complaints that fall short of removal.

The fourth level of the process is an inquiry panel that makes findings of fact and may recommend the removal of the judge. If the inquiry panel recommends removal, then we move to the last stage of process, where a minimum of 17 members of council must consider the inquiry report and recommendation for removal.

Under Bill C-9, if a review panel refers the complaint to a hearing panel, and if the hearing panel recommends removal, the judge will be able to appeal that decision within the council. Bill C-9 provides for this appeal mechanism so that the council will deal with any appeal application in a more expeditious manner and as the appropriate authority and guardian of judicial conduct.

One obvious improvement that Bill C-9 brings is efficiency of the whole process. Over the past years, we have witnessed how the current process may allow for lengthy delays due to multiple judicial reviews.

Overall, we agree that Bill C-9 aims to strike the right balance of fairness for both judges and complainants in order to maintain public confidence in the conduct review process. We also agree that it aims to strike the right balance between accountability and judicial independence.

The council hopes that Bill C‑9 will be passed without delay. We believe these changes will have a significant and positive impact on the judicial conduct process, which will benefit all Canadians.

We thank you for the opportunity to express the council's views and for your excellent work.

[Marc Giroux, Commissioner, Office of the Commissioner for Federal Judicial Affairs]

Thank you, Mr. Chair.

I'm very pleased and honoured to be here today. I'm joined by Jacqueline Corado, senior counsel in the secretariat of the Canadian Judicial Council.

From the outset, allow me to say that the Office of the Commissioner for Federal Judicial Affairs, the Canadian Judicial Council and the Canadian Superior Courts Judges Association are pleased that this judicial conduct reform bill is making its way through Parliament and is being studied by your committee. We all look forward to its receiving royal assent.

You will already know that the council and the association have worked with Justice in order to bring this bill to fruition. In our opinion, Bill C-9 will provide for much-needed efficiency in the judicial conduct process and will reinforce public confidence in the regime.

With respect to the Office of the Commissioner for Federal Judicial Affairs, it was created under the Judges Act and is independent of the Department of Justice, and its mission is to safeguard the independence of the judiciary.

Among other things, we administer the Judges Act on behalf of the Minister of Justice, administer the appointments process for the Supreme Court of Canada as well as for superior courts across the country, publish information relevant to the judiciary such as statistics on judicial expenses and diversity on the bench, and provide other services. We provide services to approximately 1,200 federally appointed judges.

The Judges Act also provides for the office of the commissioner to provide corporate services to the Canadian Judicial Council. Such services include obtaining necessary funding from the Department of Finance and the Treasury Board for the council’s operations, for its needs with respect to investigations into judicial conduct, as well as for the legal costs of judges who are the subject of a complaint.

In accordance with the Judges Act, the commissioner must also provide council with the necessary personnel for its operations and its secretariat. The secretariat includes a small team of about 10 employees, ordinarily led by an executive director. At the current time, in the absence of an executive director, I as commissioner am performing those duties myself.

Ms. Corado's role as senior counsel in the secretariat is focused on the judicial conduct process. She or I will be pleased to provide answers to your questions later.

Mr. Chair, before I turn it over to Ms. Corado, allow me to make a few observations about the Canadian Judicial Council.

The council is chaired by the Chief Justice of Canada and is composed of all chief justices and associate chief justices in the country, that is, those of the courts of appeal and superior trial courts. At present, there are 44 such positions of federally appointed chief justices and associate chief justices.

Under section 60 of the Judges Act, the council’s mandate is to promote efficiency and uniformity, and to improve the quality of judicial service, in superior courts. As you know, the main functions of the council are focused on judicial conduct and judicial education. That being said, the council has several committees working on various topics.

Over the past two years, the council has been active on a variety of fronts, including, for example, ensuring court services during the COVID pandemic through, amongst other things, the action committee on court operations in response to COVID-19, co-chaired by the chief justice and the Minister of Justice. The council has signed MOUs with the government on judicial education and the council's governance, has [Technical difficulty—Editor] self-represented litigants, and has ensured more communications and publications in order to increase the transparency of its work.

One last example of the council's recent work is the new and revised ethical principles for judges that the council adopted and has published on its website. These revised principles are founded in the concepts of integrity, independence, equality, diligence and impartiality. They recognize that ethical considerations evolve and need to keep pace with society's expectations.

Mr. Chair, I feel this may be a good segue to pass it over to Ms. Corado, if you agree.

[Lena Metlege Diab, Liberal, Halifax West, NS]

You were born in Windsor? Well, a hundred per cent: This could not be a better morning for me.

Welcome.

Professor Devlin, I'm glad the audio is working for you. You seem to be a bit of a celebrity here. A number of the panellists and people in the room here have said that you taught them. I know you started at Dalhousie the year before I left. It's nice to see you.

I want to go back to a really simple question. Maybe I'll start with you, Ms. Conlon.

What is it that the government is trying to address by bringing in Bill C-9?

I hear that you pretty much support the recommendations, with the exception of the one issue of having it go to Federal Court. Can you take me back to what it is, in your opinion, that we are trying to address? Is there anything else? I suppose you're limited in your testimony because you've only looked at it so far, but is there anything else you would like to share with us for our benefit in our review?

[Sheree Conlon]

Just to clarify, it obviously varies by jurisdiction, but in Nova Scotia it depends on whether it gives rise to professional misconduct or professional incompetence and charges are laid. At that point, it becomes public.

There can be breaches that from an ethical perspective do not give rise to professional misconduct or professional incompetence. Those are not made public, including the disposition.

That is why I said that I feel that Bill C-9 is consistent with that approach, because a similar approach is being taken.

[Frank Caputo, Conservative, Kamloops—Thompson—Cariboo, BC]

That's interesting.

In British Columbia, I believe, once the complaint is found to be non-frivolous, then it is made public, but my understanding is that Bill C-9 wouldn't make it public at that point. I may be mistaken.

[Sheree Conlon]

I can weigh in simply from the perspective of the law society.

I can speak to the Nova Scotia law society, and Bill C-9 is actually quite consistent in that complaints that are filed are not made public. It's only when the matter is referred for a hearing and charges are laid that it becomes public. Everything up to that level, from a lawyer's perspective and the complainant's perspective, is kept private. I would see Bill C-9 as being consistent with that process.

[Frank Caputo, Conservative, Kamloops—Thompson—Cariboo, BC]

Thank you, Mr. Chair. I appreciate everybody's being here. This is a really interesting topic.

I open this up to all of our witnesses.

Through you, Mr. Chair, I was speaking to Professor Scott earlier, and we were talking about transparency. Throughout this process I've been thinking about it, as in, what happens on the provincial level with law societies when a lawyer is getting sanctioned? I'm mindful of the fact that we are federal and these are provincial, but certainly an analogy can be drawn.

I believe that in British Columbia—and likely in most jurisdictions—when a complaint is made and that complaint is deemed not to be frivolous or spurious, then that complaint is automatically made public.

Professor Scott, and any of the other witnesses, can you comment on Bill C-9 and the analogy, or lack there of, in this legislation, to that transparency?

[Craig Scott]

I double-checked the structure. It's definitely.... What we're talking about are a judge and possibly the pleading officer in terms of going up out of the system.

The right of judicial review is not taken away from complainants. It already exists as part of the broader system. It certainly is not ousted by Bill C-9. If anybody thought it was, then you put in a clause saying that it's not ousted. Otherwise, complainants are made even worse off than ever.

Judicial review is a separate thing from an appeal. When it usually happens is when a matter is dismissed. The reasons do not appear adequate in the letters that complainants receive, and they want to challenge that. That currently happens rarely, but it's possible. That isn't touched by this legislation. I hope, again. I'm looking at Mr. Anandasangaree.

The other thing is that the lay point is extremely important. It also goes to the second kick at the can. The judge gets to say that if the review panel doesn't like it, then within 30 days they want a reduced full hearing. Part of that is they get to swap out a lay person for a lawyer. The lay person's role is there, but then can be stripped out at the instance of the judge.

[Sheree Conlon]

No, we don't have any comment beyond what's already contained in our submissions. As I indicated, The Advocates' Society supports the entirety of Bill C-9, including the restrictions on reasonings.

The public aspect and the involvement of lay participants at the hearing panel, we think addresses some of the concern in terms of public confidence. Beyond that, we don't have any recommended changes to the proposed legislation.