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.

Judges Act

[Francesco Sorbara, Liberal, Vaughan—Woodbridge, ON]

Mr. Speaker, the hon. member comes from a beautiful part of British Columbia.

I wholeheartedly agree with the member that we need to tackle Bill C-9, get it through and get it done. At the same time, there is the death toll that opioids have cast on this country, and how many thousands of people have died from opioids. Our government is seized with it. All Canadians are seized with it. All parliamentarians need to be seized with it. I agree we need to tackle those issues.

On systemic racism, obviously I was very disappointed to see the story come out from the Toronto Police Service on systemic racism against the Black community in Toronto, but I was also happy to see that an apology was issued. We need to work on that issue as well. Much work remains to be done to break down barriers, walls, whatever stands in the way of beating back systemic racism against any Canadian from any group in this country that we live in today.

[Sylvie Bérubé, Bloc, Abitibi—Baie-James—Nunavik—Eeyou, QC]

Mr. Speaker, we know very well that there are currently problems with the process for appointing judges and that some judges have abused their power. There was a case in my riding. A judge who was appointed used all the provisions until the end of his so-called process, then retired without facing any consequences.

Will Bill C‑9 give more power to the Canadian Judicial Council to take action against a judge guilty of a serious or less serious offence?

[Francesco Sorbara, Liberal, Vaughan—Woodbridge, ON]

Mr. Speaker, I thank my colleague from Abitibi—Baie-James—Nunavik—Eeyou for her question. It is very important for the system that Bill C‑9 be very effective.

It has to be very efficient. It has to be timely. It cannot land in a very long, bureaucratic standpoint. That is why I am so happy to see that in the 50 years this system has been in place, there is a revamp going on that takes it in that direction.

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

Mr. Speaker, I will be sharing my time with the member for South Surrey—White Rock.

It is an honour for me to be here today to engage in the debate on a very important topic, the reform of the Judges Act.

Bill C-9 introduces comprehensive reforms to the Judges Act. It introduces comprehensive reforms to the process through which judicial conduct is reviewed and sanctioned. 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. It is not necessarily highly contentious instances, but also instances of lower measure.

The proposed measures seek to promote procedural fairness in an independent, effective and efficient judicial conduct review process designed to minimize delays and to contain costs. The Canadian Judicial Council, under this new set of rules, this new legislation, will be able to respond to all allegations of misconduct. The process of the investigation and review will be streamlined. There will be new tools for procedural fairness. There will be fewer delays. Importantly, there will be funding to make sure that all of this is done in a cost-effective and efficient way.

Importantly, there is also procedural fairness for judges in their pensions in the event they are dismissed for misconduct, if that is ultimately what the finding is. Of course, we all want to be fair to our judges.

There will be new powers for the Canadian Judicial Council to make orders such as ordering a judge to make an apology publicly, or require that a judge undergo counselling, if that is the right response.

There will also be a capability for the Canadian Judicial Council to order that the judge undergo continuing professional development, something that we all agree with, something that judges and all professionals should engage in, as we all have to do. There are a number of members of the bar here. They have to undergo continuing professional development every year.

There will also importantly be a right of appeal for judges. My colleague, the member for Northumberland—Peterborough South, went into some detail as to what all the new processes and procedures are. I will not read them into the record.

What is important here is that we want to be fair to judges, but we also want to be fair to complainants, people who feel they have been wronged by the conduct of a judge.

Very importantly also is that Canadian society wants judicial independence. This is so important to help Canada operate as a country. Judicial independence is a cornerstone of our judicial system and indeed of our whole democratic system. We are a society that believes in the rule of law. Everybody is subject to the law. Everybody is equal before the law, including the judges who make the law and including politicians who make laws.

It is important that judges be free from political interference, that the whole justice system be free from political interference. Unfortunately, we have seen some bad situations, for example, with the SNC-Lavalin scandal a couple of years ago, where politicians tried to interfere with the judicial process, rather than allow it to operate the way it is supposed to under judicial independence rules. It is inappropriate for politicians to get involved in that.

It is also important to understand that judges must be free from political pressures. The superior courts are masters of their own scheduling, of their own operations. That is fundamental to the way we operate.

Courts are self-governing when it comes to judges' professionalism, competence, ability and conduct. This came up in the previous Parliament under Bill C-3. This was new legislation that was brought in requiring judges to undergo sexual assault training. At that time it was a deep concern to many members in this Parliament and previous Parliaments and to many Canadian citizens that not all judges were properly trained for sexual assault cases. We deemed it important that judges understand how sexual assault cases are different from other kinds of criminal cases.

The reason I raise that here is that judicial independence became an issue then. That was another bill where everybody was in agreement. We deemed it important that it be debated because the issues surrounding that were so important to Canadian citizens. There were, at that time, academics and jurists who said that Bill C-3 was going in the wrong direction and undermining judicial independence. Here again, it was Parliament telling judges what they had to do and saying that they needed to take a course in this and they needed upgrading in that.

After a lengthy debate, Parliament came to the conclusion that there is a balance to be found between integrity of the judicial system and allowing judicial independence. That bill, I submit, found that right balance. After a lot of debate, it went to committee. We heard from experts and we deemed that to be the right way to go with the right balance between judicial independence and ensuring that judges have proper training. The same is true here. It is so important for us to find that right balance.

I said earlier that one of the key cornerstones for judicial independence is that judges be free from political pressures and from outside pressures as well. Sometimes it is difficult for citizens who are not trained in the law to understand how judges operate and how they make decisions that are perhaps controversial.

One example comes to mind. It is going back a lot of years, but it is the O. J. Simpson trial in the United States. Mr. Simpson was charged criminally, but the jury found him to be not guilty, yet he was sued on the same set of facts in a civil court and was found to be liable. People did not understand how that worked and why one court could find him not guilty and the other one could find him civilly liable. That is the difference between the criminal benchmark for finding somebody guilty beyond a reasonable doubt and the civil courts where a judge or jury find that someone is liable on the balance of probabilities. That is just one of the important points of judicial independence.

That said, judges are also human beings. They are Canadian citizens. They know what is going on in the world, so we require them to be sensitive to community standards. Sadly, that is not always the case, as we saw recently in the decision of the Supreme Court of Canada in R. v. Bissonnette, where the Supreme Court of Canada found that consecutive sentences were unconstitutional. Many Canadians are having a hard time understanding that. This Parliament needs to look into that to ensure there is fairness according to common-law conditions, and also so that the citizens of this country know that the courts are operating in a way that values and understands community values.

In another case, R. v. Brown, just very recently, a person was found to be not guilty by reason of extreme intoxication and therefore he could not form mens rea, as we call it, which is the guilty intention to commit a crime. Again, Canadian citizens have a hard time understanding that. It needs to be reviewed as well by this Parliament, and I hope that happens soon.

[Mark Gerretsen, Liberal, Parliamentary Secretary to the Leader of the Government in the House of Commons (Senate)]

Mr. Speaker, just circling back to the comment made by the House leader of the official opposition, I want to say that he made my week. I am flattered that the House leader of the opposition was sitting on the third floor of this building in his office, caught word of what I said in the House and came running down here to ask me a question. I had no idea that he hung on every word that came out of my mouth like that, so I thank him.

To this member, does he not agree that it is probably in the best interests of the House, Canadians and those who would be affected by this legislation to let this get to committee so that the committee can do its work and report back to the House, and we can move along with it?

We all agree on it. The question from every member of the House to the Conservatives, at least from the Liberals, NDP and Greens, has been why are we talking about this? Can we not talk about other more important things? It is not because this is not important, but because we know we are unanimous and want to move it forward.

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

Mr. Speaker, this is very important legislation. This goes to one of the cornerstones of our democratic society, and that is judicial independence and whether Canadians have confidence in their court system. This is one of the most important things that we are going to debate in this parliamentary session.

Even though we are all in agreement, it does not mean that we do not debate the issues. These issues have to be brought to the attention of people who are interested enough in this to be watching this or to be reading about this in the papers. Canadians want to know that these issues are being debated thoroughly in the House of Commons.

[Julie Vignola, Bloc, Beauport—Limoilou, QC]

Mr. Speaker, I thank my colleague from Langley—Aldergrove for his speech. He was one of the first people to say hello and welcome me here when I was first elected back in 2019.

I listened carefully and, from what I understand, Bill C‑9 is important to him and to everyone here, and we are debating it now because it is so important.

What will it take to finally get this bill sent to committee so it can be studied and amended if necessary?

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

Mr. Speaker, I would just underline that this is important legislation. This goes to the very foundation of what Canadian society is. We are a nation that is built on the rule of law. For us to feel that we need to hurry this very important piece of legislation through Parliament just because we are all in agreement is something I disagree with.

I was ready to speak to Bill C-14 today. I did not realize that this was so important to the Liberal government that it wanted to have it on the agenda today. It was introduced months ago. Why was it not here earlier? Why are the Liberals now suggesting that we are the ones who are stalling things? This is important legislation. I want it to be fully debated.

[Lori Idlout, NDP, Nunavut, NU]

Uqaqtittiji, the Canadian Judicial Council, which is comprised of chief and assistant chief justices, was doing consultations on this process as early as 2016. The Canadian Bar Association, responding to the council's consultations, in 2019 also talked about the importance of these processes being implemented.

In a sense, this is not necessarily new legislation that is being considered. There was a previous bill that was already discussed. In effect, this is not brand new and it does not sound like it is a new initiative. I read in the mandate letter given to the minister that this needs to be a priority.

Has the member read the mandate letter that initiates this process and that says having it completed is a priority?

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

Mr. Speaker, I agree that this is a priority and I would like to thank the member for Nunavut for pointing that out. The Conservative caucus fully agrees that this is an urgent matter that needs to be discussed. I wish the government had put it on the legislative agenda earlier so that we would not be rushing it just before the summer break.

[Kerry-Lynne Findlay, Conservative, South Surrey—White Rock, BC]

Mr. Speaker, like some others in the House and like my colleague who was just speaking, I am a lawyer, and the practice of law has been a large part of my life. My son and two of my daughters followed me into the legal profession, and it is a source of pride to me as they pursue their professional careers.

I continue to be grateful to have been appointed a Queen’s Counsel some 23 years ago, and to have been elected president of the B.C. branch of the Canadian Bar Association the year previous. I have a deep appreciation and passion for the law and its unbiased application.

In the plainest of terms, Bill C-9 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 streamlined process for reviewing allegations of misconduct that do not reach the threshold for a judge’s removal from office, and the process by which recommendations regarding removal from office can be made to the Minister of Justice.

These provisions also apply to persons other than judges who are appointed under an act of Parliament to hold office during good behaviour. This bill was previously tabled in the Senate as Bill S-5 on May 25, 2021. The legislation before us is the result of consultations conducted by the federal government in 2016 on reforming this process. That is six years ago.

It is incredibly important that the judicial system be just and fair, holding accountable those who are both behind and in front of the bench. Increasing public confidence in the judicial system, while ensuring the independence of the judiciary, is necessary for the foundations of our justice system to continue to function as intended.

Many will recall that in response to comments from Justice Robin Camp at a sexual assault trial in 2014, former interim Conservative leader Rona Ambrose introduced a bill to require seminars on sexual assault be taken by federally appointed justices

At the time, the Alberta Court of Appeal panel ruled that Justice Camp seemed not to understand laws on consent and an alleged rape victim’s sexual activity, and that his acquittal of the man may have been coloured by “sexual stereotypes and stereotypical myths, which have long since been discredited.” Justice Camp’s ruling was thrown out and a new trial date set. Justice Camp went on to resign from the bench in 2017, after the Canadian Judicial Council ruled he should be removed from office.

Before this case, there were volumes of case law and newspaper columns about jurists who misapprehended sexual consent or post-assault behaviour, who then went on to preside in court and rule again on other such cases.

An earlier version of the bill received royal assent on May 6, 2021. This bill can be viewed as an attempt to increase confidence in the judicial system, which had been shaken by the words and actions of Justice Camp and others.

Fairly representing victims' rights is an integral aspect of the proper functioning of the judicial system. One important aspect of the court process is the submission of victim impact statements: written statements from a victim or victims that describe the physical or emotional harm, property damage or economic loss that the victim of an offence has suffered. Our courts take these statements into account when an offender is sentenced. This gives victims of crime a voice in the criminal justice system.

The government has not been prioritizing victims' rights, and it is failing Canadians and the integrity of our judicial system as a result. Inexcusably, the role of the federal ombudsman for victims of crime has been vacant since October 1, 2021, with the justice minister’s office saying it will be filled “in due course.”

The ombudsperson has a critical role in highlighting and reviewing systemic issues that negatively affect victims and emerging issues. This vacancy is simply unacceptable, and sends a message to survivors and Canadians alike that they will not necessarily be represented fairly in the justice system. Adding to concerns that victims of crime are not being heard is Parliament’s failure to complete a review of the Canadian Victims Bill of Rights. The review was supposed to happen in 2020.

Canadians’ perspective of the judicial system reflects, in part, these failures. According to the Justice Canada studies, regardless of whether their cases did or did not go to trial, participants were asked to rate their level of confidence in the police, the court process and the criminal justice system in general.

Few stated that they were very confident. Indeed, approximately two-thirds of the responders stated that they were not confident in the administration of justice in general. This data is not coincidental. It is imperative that our judiciary system continues to adapt to effectively represent Canadians fairly.

A Department of Justice report stated that:

For the 2016/2017 fiscal year, 42% of all sexual assault case decisions (levels 1, 2, and 3) in adult criminal court resulted in a finding of guilt.

According to StatsCan, statistical evidence classified 14% of level 1 sexual assault incidents as unfounded in 2017. In comparison, the more serious levels of sexual and physical assault were classified as unfounded in only 9% of level 3 sexual assaults, 7% of level 2 sexual assaults, 3% of level 2 physical assaults and 1% of level 3 physical assaults. Why is there a difference?

This bill would modify the existing judicial review process and allow for sanctions such as counselling, continuing education and reprimands. Improvements in the administration of justice will result.

The bill states that the reasons a judge could be removed from office include:

(a) infirmity; (b) misconduct; (c) failure in the due execution of judicial office; (d) the judge is in a position that a reasonable, fair-minded and informed observer would consider to be incompatible with the due execution of judicial office.

In the case of a complaint that alleges sexual harassment or discrimination, it would not be dismissed. The full screening criteria would be published by the Canadian Judicial Council. The minister and Attorney General may request that the Canadian Judicial Council establish a full hearing panel to determine whether the removal of a judge from the office of a superior court is justified.

The council would submit a report within three months after the end of each calendar year with respect to the number of complaints received and actions taken. This is a prudent measure that would ensure transparency and accountability from a senior group of jurists exercising quasi-constitutional duties.

Such provisions in this bill would enhance and strengthen the Canadian legal system as a whole. As a former parliamentary secretary to the Minister of Justice, I welcome this legislation. Bill C-9 is a move in the right direction. It is not the end of the journey, but the start of the journey.

[Rob Moore, Conservative, Fundy Royal, NB]

Mr. Speaker, I thank my hon. colleague for her contribution to the Standing Committee on Justice and Human Rights, when I served there with her. She certainly brings a wealth of experience to the House, and I appreciate her perspective on this bill.

One of the things that has come up in the course of debate is why we are debating this bill today. I would like my hon. colleague's comment on two things. One, this bill was last introduced in October of last year, and my understanding is that the government controls the legislative agenda, so it was just brought forward for debate today. The other is whether she could comment on something I am concerned about, which is that the position for the ombudsman for victims of crime has been vacant for nine months. Does she think that should be addressed immediately?

[Kerry-Lynne Findlay, Conservative, South Surrey—White Rock, BC]

Mr. Speaker, I thank my hon. colleague for his vast contributions on the justice file in this place. He is very knowledgeable, and I certainly always appreciate our collaborations.

The vacancy of the ombudsperson for victims of crime is actually appalling. This is such a crucial aspect of our judicial system and of confidence in that system being fair and just. I am sure there are many worthy candidates, and I am sure there have been many worthy applicants, which means the government simply has chosen not to move forward with that appointment. It should be done. It should be done quickly. It should have been done a long time ago, but I would love to see it done quickly for all victims in Canada.

[Lisa Marie Barron, NDP, Nanaimo—Ladysmith, BC]

Mr. Speaker, I agree with much of what the member said in her intervention. Does the member agree we should be proceeding quickly with this relatively uncontroversial bill and getting it to committee to get the work going on this so the House can spend more time dealing with many other issues, such as the toxic drug supply that is seeing too many people dying every day, or the reforms to the justice system that would help eliminate systemic racism?

[Kerry-Lynne Findlay, Conservative, South Surrey—White Rock, BC]

Mr. Speaker, I always love getting a question from someone representing Nanaimo—Ladysmith because I was born in Ladysmith and raised in Nanaimo. I love hearing from people from Vancouver Island, and I thank the member for standing today in the House.

I agree that this bill seems to have widespread support, for which I am grateful. However, the management of the legislative calendar lies squarely with the government, and if the government felt this was as important a bill as I do, it should have been brought forward earlier for full debate and comment. Obviously, there are many people in the House who want to comment on this bill, give interventions and get the message out to the people they represent in Canada regarding why this bill and its passage will be beneficial to our administration of justice.

Here we are shortly before the summer recess debating a bill that I support, but I would like to see a whole debate on it. Then we can move forward in due course.