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]

Thank you, Mr. Caputo, and thank you, Mr. Naqvi.

I will remind all members to keep it in line with the study, which is Bill C-9.

I gave a lot of latitude on that. You had promised at the outset of your questioning that you were going to bring it back to Bill C-9, so I would ask that you bring it back to Bill C-9. This is an important and very timely meeting, so we should keep it focused on that.

I'll resume your time.

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

I did not interrupt you, Mr. Naqvi. I would appreciate the same courtesy. Thank you.

Secondly, I said that my follow-up question, which I am happy to disclose right now, relates to Bill C-9, and it relates to that factual matrix.

If I'm given the opportunity to do so, with the full time that I have, I am happy to ask that question.

[Yasir Naqvi, Liberal, Ottawa Centre, ON]

It was not related to Bill C-9.

[Yasir Naqvi, Liberal, Ottawa Centre, ON]

Chair, I'm really concerned. This is the second time now I've noticed that members of the Conservative Party are not asking the minister a question directly on Bill C-9, which deals with judicial misconduct. They continue to bring up very specific cases and ask the minister to opine on them when they have no relation whatsoever to the matters covered under Bill C-9.

I let Mr. Brock go. I was trying to give him a little bit of latitude to see if he could bring it back to the bill. He failed to do so. Mr. Caputo promised that he would do so in this instance. He has not done so.

Through you, Chair, I really urge members opposite to focus on the bill. We have an opportunity here, with the minister present, to give us responses on this particular bill. I think it is highly unfair that we are asking questions that are outside the purview of the work we are doing right now.

Thank you.

[Patrick Xavier]

It would be covered by that, and it would be addressed in the CJC's policies and procedures.

Currently, a member of the CJC has the ability to go back to the complainant and get further clarification and get further information if they feel they need it once they've seen the judge's comments, but that's what the policy currently states under the current process. What the policy will look like under Bill C‑9 once it becomes law will be for the council to determine.

Presumably, the council will have some consultations on what that policy will look like, but I can't speak for the council. The council will be able to speak to that when they appear before you.

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

In terms of complainants, one of the concerns that people have had is that once the complaint is launched, there's no more role for the complainant. As the complaint makes its way through the system, there's no ability for the complainant to respond to any of the intermediate decisions or steps.

Will there be any provision for this as a part of Bill C‑9?

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

There have been a lot of concerns expressed about a lack of transparency about the process for complainants. In other words, it's hard for them to know what's happened with a complaint, what's being done with a complaint and what stage a complaint is at. I think this contributes to a lack of confidence in the process as a whole.

Again, in your view, will Bill C-9 help make the procedures more transparent to the complainants?

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

Thank you very much, Mr. Chair.

Thank you to the minister for being available to the committee to talk about Bill C-9 today.

Obviously, there is a great deal of consensus that Bill C-9 will fix some of the major problems in the complaints process. I appreciate the minister stressing that it would fix the all-or-nothing problem and allow dealing effectively with lesser forms of judicial misconduct that might not involve removal from the bench. Of course, streamlining the timing is in the interest of everyone, as is reducing costs.

I have two further questions about Bill C-9 and the process in general. They revolve around transparency and the fairness of proceedings. I think right now there is a general feeling that there isn't a great deal of transparency about the outcomes of complaints against those who have committed misconduct on the bench. I wonder whether Bill C-9 will make any improvements or if there any other suggestions to improve the transparency of the outcomes of the process.

[David Lametti, Liberal, LaSalle—Émard—Verdun, QC]

Upon initial review, I think a slightly less official review panel could indeed conduct those kinds of discussions. It's the Judicial Council that initiated talks with our department to create Bill C‑9.

I'm going to give the floor to one of the people who took part in those discussions.

Mr. Xavier, would you please provide some details on the subject?

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

Thank you, Minister.

I don't think I have much time left, and I'd like to address a completely different topic.

The provisions of Bill C‑9 are interesting in the context of the current process.

Have you considered the possibility of introducing a mediation process prior to panel proceedings, for example, in the case of a complaint filed against a judge? Wouldn't it be appropriate to introduce a mediation process in which a representative of your department or of the Judicial Council could intervene?

An attempt could be made to determine whether an agreement can be reached with the judge concerned by the complaints on certain matters or on appropriate sanctions, which would preclude situations such as that in Justice Girouard's case.

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

Thank you, Mr. Chair.

Thank you for being with us today, Minister.

I'd like to ask you some questions on various topics, but I'll try to stick to today's subject, Bill C‑9.

First of all, I want to say that I think this is a good bill, and we of the Bloc Québécois intend to support it. However, shouldn't these complaints that the Canadian Judicial Council handles concerning judicial conduct, misconduct and alleged misconduct raise question marks in our minds? Shouldn't we question whether many of these situations can be avoided by paying more attention to the process and selection criteria?

As you know, the situation has improved over the years. We've discussed this on a number of occasions. We of the Bloc Québécois still condemn the partisan, political checks that are conducted before appointments are made. We should put an end to the practice. It should be given no consideration. Perhaps we should improve conditions and ensure that candidates have university training in the law, that they have a moral compass and that they know how to conduct themselves in any given situation in which litigants appear before them.

In short, shouldn't we improve the selection process so that fewer and fewer complaints are filed?

[Élisabeth Brière, Liberal, Sherbrooke, QC]

Thank you, Mr. Chair.

Thank you very much, Minister. It's always a pleasure to have you here in committee.

We know the decision in the Girouard case was a judicial saga that received extensive media coverage.

Further to your remarks, would you please tell us how the new Bill C‑9 would reduce delays and costs and make the complaints process for efficient.

[David Lametti, Liberal, Minister of Justice and Attorney General of Canada]

Thank you, Mr. Chair.

It's always a pleasure to be with you. Most of you are participating in the meeting in person. Mr. Garrison and Mr. McDonald are participating virtually.

I am accompanied by Nancy Othmer, Patrick Xavier and Anna Dekker, my colleagues from the Department of Justice, who will be helping me answer any technical questions.

As I said, Mr. Chair, it's an honour for me to be here today to speak to you about Bill C-9, an act to amend the Judges Act.

I will take this opportunity to thank all of you for the unanimous support for this bill at second reading.

As you know, this bill reforms the process used to address complaints against federally appointed judges. The soundness and effectiveness of the judicial conduct review process can have a significant impact on the independence of the judiciary. This legislation will make the judicial conduct review process more efficient and more cost-effective.

This legislation is the fruit of years of careful study and analysis, including consultations between the legal community and the general public, and extensive dialogue with the Canadian Judicial Council and the Canadian Superior Courts Judges Association. In my view, Bill C-9 sets out what would become a world-leading judicial conduct review process and one that will serve Canadians exceptionally well for years to come.

We need a judiciary that is strongly independent, one that is able to render judgments without fear of reprisal. At the same time, Canadians rightly demand to hold judges accountable to a high standard of professionalism.

In 1971, Parliament, through the Judges Act, assigned responsibility for handling complaints against judges to the Canadian Judicial Council, or the “CJC”. The Judges Act sets out the key elements of a process that served Canadians well for decades. However, shortcomings in the legislative framework have become more and more pronounced over the last few years, prompting growing calls for Parliament to act. This includes calls from the CJC itself.

In developing reforms, the government carefully considered feedback from the general public received through an online survey as well as from a number of key stakeholders, including the Canadian Bar Association, the Federation of Law Societies and provinces and territories.

We listened carefully. Our focus was to craft a process that the public would have confidence in, one that is rigorous and fair, yet timely and effective.

Constitutional principles dictate that a judge cannot be removed from office without having a judge-led hearing into their conduct. As I noted, Parliament has assigned this important task to the CJC. In light of this, my department's officials engaged in sustained discussions with the CJC to ensure that this legislative proposal could benefit from the council's 50-year experience running the judicial conduct review process. Departmental officials also engaged with the Canadian Superior Court Judges Association to understand its concerns regarding process reform.

I take this opportunity to thank both the CJC and the association for these discussions and their commitment to serving Canadians.

I wish here to highlight two main areas of particular concern. The first is efficiency. As it stands, the process takes too long and is too expensive. Of course, the Constitution demands rigour and sensitivity in the handling of complaints against judges. Yet, when the resolution of complaints at times stretches on for years on end, and at great expense to the taxpayer, Canadians rightly ask whether there is a better way.

This is perhaps best underscored by the multiplication of judicial reviews that we have witnessed over the last few years with respect to certain complaints, creating the perception that judges launch these proceedings to effect delay rather than to pursue legitimate legal interests. Bill C‑9 responds directly to these concerns by making the process much more efficient.

A second shortcoming involves the all-or-nothing nature of the existing process, which is designed to answer a single question: Does the complaint warrant the judge's removal from office? No other sanction is available. This fact colours every step in the process. This risks unfairness to judges subject to complaints, who may be subject to a full-scale inquiry and its proceedings for conduct that would more appropriately be addressed through lesser sanctions. Further, this risks undermining the public's trust in the process. Members of the public may be perplexed and rightly dissatisfied when complaints are dismissed despite problematic conduct because the conduct in question did not reach the high threshold of justifying removal from office.

Bill C-9 addresses this concern by introducing, for the first time, the ability to impose sanctions for misconduct that do not warrant removal from office but that nonetheless demand some form of remedy and accountability. These could include, for example, mandating training sessions.

I do not have time in these remarks to discuss all of the improvements proposed by the bill. In the time I have left, let me highlight three key improvements.

First, greater transparency through greater participation of lay members. The current process has a limited role for lay members, which, in this context, refers to individuals who are not judges or lawyers. There is currently one lay member on the five-member review panels.

Bill C‑9 changes this. There would continue to be one lay member on review panels, but these review panels would be more efficient—having only three members and being empowered to impose sanctions for any misconduct not serious enough to warrant removal from office. Second, hearing panels established to conduct public hearings on whether a judge should be removed from office would now include a lay member. These improvements directly address the system's current shortcomings, increase efficiency, and allow for more appropriate and targeted accountability.

The second point to highlight is how Bill C-9 streamlines the appeal process. The current process provides too many opportunities for judges subject to complaints to seek judicial review of decisions made by the council at different stages in the process. This is costly and results in excessive delay and undermines public confidence. Further, after the inquiry committee has issued its recommendation on whether a judge should be removed from office, the current process requires review of this decision by what is termed “council of the whole”, where quorum requires participation by at least 17 CJC members. This body's powers are unclear, and legal decision-making by a body of this size has proven challenging.

To address both of these concerns, Bill C-9 would introduce an appeal mechanism internal to the judicial conduct process. An appeal panel made up of three CJC members and two puisne judges would have broad powers to remedy any shortcomings in the process. The only recourse available to the judge wishing to challenge the decision of an appeal panel would be to seek leave to appeal directly to the Supreme Court of Canada. Entrusting process oversight to the Supreme Court will reinforce public confidence and avoid lengthy judicial review proceedings through several levels of court. This will save time and costs while still providing robust fairness for judges subject to complaints.

The third and final point to highlight relates to the costs associated with the process. The day‑to‑day costs of handling complaints are fairly consistent and predictable, and would continue to be so under the new process. However, the costs associated with inquiry committees are highly variable and unpredictable, given the significant year‑to‑year variability in the number of public inquiries conducted. As a result, administrators must rely on complex mechanisms to seek necessary funding on an ad hoc basis. This is a longstanding problem that Bill C‑9 would rectify by introducing a statutory appropriation to provide a stable funding mechanism for the highly variable portion of the process' costs associated with public hearings.

This is not only a sound practical solution, but is also justified by the fact that these public hearings are constitutionally required. To ensure sound stewardship of these funds, the bill would introduce several measures, including requiring that an independent review be completed every five years into all costs paid through the statutory appropriation. The findings and recommendations of this review would be made public.

I thank you for your time and attention today. I wholeheartedly recommend this bill, knowing that it will profoundly improve the judicial conduct review process to the benefit of Canadians.

I look forward to your questions after having had a glass of water.

[The Chair, Liberal, Randeep Sarai]

I call this meeting to order.

Welcome to meeting number 37 of the House of Commons Standing Committee on Justice and Human Rights.

Pursuant to the order of reference of October 31, the committee is meeting to begin its study of Bill C-9, an act to amend the Judges Act.

Today's meeting is taking place in a hybrid format pursuant to the House order of June 23, 2022. Members are attending in person in the room and remotely using the Zoom application.

I'd like to make a few comments for the benefit of witnesses and members.

Please wait until I recognize you by name before speaking. For those participating via video conference, click on the microphone icon to activate your mike and please mute yourself when you are not speaking.

For interpretation, for those on Zoom, you have the choice at the bottom of your screen of either floor, English or French. For those in the room, you can use the earpiece and select the desired channel.

I will remind you that all comments should be addressed to the chair. For members in the room, if you wish to speak, please raise your hand. For members on Zoom, please use the “raise hand” function. The clerk and I will manage the speaking order as best we can. We appreciate your patience.

I also use elementary cue cards to tell you when there are 30 seconds remaining and when you're out of time. I don't like interrupting. Hopefully, you'll keep your eye out for that. This committee is actually really good at keeping time.

I'd now like to welcome our first witness appearing today. We have the good pleasure—

Go ahead, Mr. Fortin.

Government Business No. 22

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

Madam Speaker, I will be sharing my time with the member for Trois-Rivières.

I will answer the question the Conservatives asked about having quorum in the House and it being in the Constitution. The unfortunate reality for the Conservative member who asked the question is that he should know that he has participated in unanimous consent motions in the House to waive that provision in the past. He has already set the precedent himself, so has the Conservative Party and, as a matter of fact, every single person in the House has set the precedent to waive the requirements for quorum.

We cannot be selective as to when we want to interpret the Constitution to our benefit, which is what the Conservatives are trying to do now. The reality is that there is been a long-standing precedent to waive the requirement for quorum under certain conditions, and that is exactly what we are seeing in this motion. There is the same consistency that comes with that.

However, I think what we really have to do with this motion is get to the heart of what is going on. At the heart is the Conservatives' partisan interest and allowing that to supersede the needs of Canadians. That is exactly what is going on here, and I will demonstrate in my speech today how they have routinely done that, not over the last seven years of my being in the House and watching it, although they have done it over the seven years, but five examples just in this fall session alone when they have done that. They have done it on multiple occasions using multiple different tools.

Any individual who has participated in or is well versed in how the Westminster parliamentary system works knows that the one tool the opposition has is to delay. That is its sole tool, and it is important for the opposition to exercise the use of that tool when it can to garner support, or whatever it might be, when they find those issues to be so important. When the opposition feels the issue is the hill it will die on, it will fight, delay and filibuster if it has to, because it feels something is not right.

That is the main tool opposition parties have in a parliamentary system like this. The problem is that Conservatives are using it all the time. They are using that tool for everything. They are saying absolutely every piece of legislation that comes before the House is a hill they will die on, and the problem is that this diminishes the value of the tool they have. It also affects directly, and this is what I do not understand, their credibility on the issue. When they stand up to delay things they are fully in support of, do they not understand that the public sees that? They are doing the same thing, and their partisan interest in seeing the government fail is more important to them than actually providing supports for Canadians.

Let us review some of the legislation from this fall alone. With Bill C-29, the truth and reconciliation bill, the Conservative Party blocked a motion to sit late to try to pass the bill at second reading before the National Day for Truth and Reconciliation, which is what the government, and I think all Canadians, would have loved to have seen. It was not until pressure was mounted on them by the public that they backed down from that position.

Another one was Bill C-30, the GST tax credit. This is a bill that needed to be passed in a timely manner to get real supports to Canadians. They were real supports for Canadians that needed to be done in a timely fashion to line up with when the GST payments were made. The Conservatives, again, blocked a motion to sit late on the second reading of that important piece of legislation. They only backed down again and changed their minds on how they would vote on that particular piece of legislation based on public criticism and the public holding them accountable for playing the games they are playing. That is the reality of what we are seeing.

Bill C-31 is the bill that afforded very important measures regarding dental care and housing supports. The Conservative Party, again, blocked the adoption of the legislation to help the most vulnerable, forcing the government, with the help of the NDP, to have a programming motion to get it passed, and this is what we see time after time.

The next is Bill C-9, which would amend the Judges Act, and I will remind members this is all happened during this fall session alone.

We had technical issues with interpretation with that bill. The Conservatives are always standing up and using the interpreters as one of their arguments for making sure we have the best quality of debate in the House. When there was a problem with interpretation, which delayed the debate of the bill, the Conservatives refused to support a motion to add time to the debate that day.

The Conservatives say that they want more time to debate. We literally said that we lost 30 minutes of time because of a problem and we had to temporarily suspend, so how about we add that 30 minutes onto the end of the day. The Conservatives said no. This is the group that is now sitting before us saying that they are in favour of doing absolutely everything to increase democracy and that they want more speakers on every issue.

The one glaring example of this happening in this fall session was with Bill S-5. The bill is on environmental protections, and it is a bill everybody in the House supported. It was unanimously adopted. Conservatives put up 27 speakers on it. I want to provide a comparison for those who might be watching. Compared to that number, Liberals put up six speakers, the NDP put up four speakers, the Bloc put up five speakers and the Green Party put up one speaker.

What is even more telling is that, if someone goes back to look at Hansard or watch the videos—