Madam Speaker, I will turn to the substance of Bill C-9 in a moment, but first I want to talk about how we got here, a process that for me illustrates disarray on the government's side in this 44th Parliament. Some days it still seems almost as if the Liberals really did not expect to have to govern after the last election.
Certainly, the bill was essentially ready to go well before the pandemic hit. For unknown reasons, the government decided to have it introduced in the Senate on May 25, 2020, as Bill S-5, and it died there when the unnecessary 2021 election was called. Then it was reintroduced by the government leader in the Senate as Bill S-3 on December 1, 2021. After a dispute over whether the bill could actually be introduced in the Senate as it would require a royal recommendation to allow expenditures by the Judicial Council under the bill, the bill was withdrawn from the Senate on December 15, 2021, and reintroduced as a government bill, Bill C-9, in the House on December 16, 2021, if members can follow that bouncing ball.
Despite the disarray on the government side, the bill still seemed to be a priority for the Liberal government as it was included in the December 2021 mandate letter for the Minister of Justice. There, the Prime Minister directed that the Minister of Justice, “Secure support for the swift passage of reforms to the judicial conduct process in the Judges Act to ensure the process is fair, effective and efficient so as to foster greater confidence in the judicial system.”
That's fair enough, and no doubt there is important work for us to do on improving the process by which complaints against federal judges are handled. However, here we come to the question of priorities of the Liberals and their effectiveness when it comes to addressing, in a timely manner, the pressing crises in our justice system and, of course, the question of the persistent obstructionism of the Conservatives, as the official opposition, in this sitting of Parliament.
While I remain disappointed that the government chose to ensure the defeat of private member's Bill C-216 from the member for Courtenay—Alberni, which would have decriminalized personal possession of small amounts of drugs, we have made some progress on the opioid crisis. Pushed into action by the impending vote on the private member's bill, the Liberals, after months of delay, finally granted an interim exemption to the provisions of the Controlled Drugs and Substances Act for British Columbia, in effect decriminalizing personal possession for small amounts of drugs for the next three years.
That's a good thing, yes, but it only raises the question of why wait another six months. This delay seems likely to ensure that 2022 will eclipse the appalling record set in 2021 in British Columbia for the greatest number of overdose deaths in B.C. Also, why only British Columbia? The epidemic of deaths from toxic drug supply continues unabated across the country and in all corners of the country, both urban and rural. Passing Bill C-216 would have allowed us to begin to apply the tools we know that work right now: decriminalizing the personal possession of small amounts of drugs and guaranteeing a safe supply of drugs for those suffering from addictions. Bill C-216 would have brought a permanent change to the law to guarantee that addiction is dealt with as a health matter and not a criminal matter.
The crisis that demands urgent action is, of course, systemic racism in our criminal justice system. The most prominent evidence of the reality of this crisis is the over-incarceration of indigenous and Black Canadians in this country. All members by now are familiar with the shocking facts that indigenous people are more than six times as likely as other Canadians to end up incarcerated and that Black Canadians are more than twice as likely. Most shocking I think to all of us is the fact that indigenous women make up 50% of women incarcerated in federal institutions when they are less than 5% of the population.
Of course, injustice does not end with incarceration, as there is the legacy of the resulting criminal record. Not only have indigenous and racialized Canadians been disproportionately targeted for investigation, prosecution, fining or imprisonment, the most marginalized among us then end up stuck with criminal records. These are criminal records that make getting a job almost impossible, criminal records that often restrict access to affordable housing or even ordinary rental housing because of criminal record checks, criminal records that make volunteering with kids and seniors impossible, criminal records that restrict travel and criminal records that even make it difficult to get a bank loan or a mortgage.
The good news is that we have taken some steps to address the systemic racism in our court system with the passage of Bill C-5 yesterday. As soon as the Senate acts, we will see the elimination of 20 mandatory minimum penalties, most importantly those in the Controlled Drugs and Substances Act, which fell very heavily on indigenous and racialized Canadians and have been a major contributor to over-incarceration.
Again, we would have liked to see bolder action here with the expansion of the existing Gladue principles to give judges discretion to waive all remaining mandatory minimums when it would be unjust to impose them on indigenous or racialized Canadians due to their circumstances. Unfortunately, this was not in the bill. One may ask why I am going on so long about this. It is judges' discretion that will make a big difference, so people have to have confidence in the judiciary.
Despite the public image that we never co-operate in Parliament, we had good co-operation in the justice committee. That co-operation allowed the passage of my amendment to Bill C-5, which will see the elimination of criminal records for personal possession of drugs within two years through a process called sequestration. What this means in practice is that these records will no longer show up in criminal record checks.
Today, we are moving on to debate Bill C-9 and finally, some members may say, I am coming to the substance of this bill. This is a bill to reform the process for handling complaints against federal judges. As I said, it is important in our system to maintain public confidence in those judges. Is this a crisis? Clearly it is not. Is it as urgent as decriminalizing drugs or removing systemic racism in our justice system? Clearly it is not. Is this as important? I would argue that in fact it is, because trust in the integrity of our justice system is integral to the fate of our democracy, especially in these trying times. We have to have faith in the integrity of the justice system and that means in the judges themselves, so we have to do better when it comes to holding the judiciary accountable, but we have to do so in ways that respect their fundamental independence and protect the system against government and political interference.
Bill C-9 suggests ways in which we can do this and, as I mentioned at the outset, measures have been ready to go on this for a very long time. Can we do better on holding judges accountable? Yes, we can, but it took well over two years for the government to get this bill before the House today and many of the ideas in it were first proposed in Canadian Bar Association reports as early as 2014. Some appeared in private members' bills tabled in the House as early as 2017, so it is past time to get to work on this bill.
Let me distinguish just for a moment what we are actually talking about. We are not talking about mistakes in law that occur from time to time in the federal courts. There is a clear remedy for these kinds of mistakes, and it is the appeal process. Instead, we are talking about the failure of federally appointed judges to meet the high standards that have been set for them and that we naturally should demand of them. That is either when it comes to personal conduct or to maintaining impartiality on the bench.
I should say from the outset that the Canadian record is remarkably good when it comes to cases of serious misconduct warranting removal from the bench. In the history of Canada, the Canadian Judicial Council has recommended removal for only five federally appointed judges. Four of those resigned before Parliament could deal with their cases, and the fifth before Parliament could act on the case. Whether these judges resigned before being removed solely to protect their pensions, which has been alleged, or simply to avoid the stigma of being the first federal judge ever removed by Parliament, I leave for others to judge.
Leaving the process in the hands of judges themselves is probably necessary, as this is both a key and crucial feature of our current system. It is the one that guarantees governments cannot influence the decisions of judges by threatening to remove them from office. Complaints about federally appointed judges are handled by the Canadian Judicial Council, which is made up of the 41 chief justices and associate chief justices of federally appointed courts.
The Canadian Judicial Council is chaired by the chief justice of the Supreme Court of Canada, who appoints a committee to examine complaints. If a complaint is initially found to have merit, a three-judge panel examines the complaint and either decides to dismiss it, to recommend no further action because the misconduct does not warrant removal from the bench, or to hold a public inquiry. Again, this is relatively rare, with only 14 inquiries held over the past 40 years.
If there was an inquiry, the committee would then forward its findings to the full Judicial Council, along with a recommendation on the possible removal. If removal is recommended, the judge has the right to appeal to an appeals panel and, if needed, further appeal beyond that. The Supreme Court of Canada can choose to hear the appeal directly, but the current process is that the case would be heard at the Federal Court and the Federal Court of Appeal before the Supreme Court of Canada could hear the case. This seems unnecessarily complicated and provoking of unnecessary delay. Bill C-9 would address the problem, but while the current system does work in the most serious cases of judicial behaviour, the process is long and drawn out.
Bill C-9 would also address the major gap in the current process, which is that it has proved largely ineffective in dealing with cases of misbehaviour that would not be serious enough to warrant removal from the bench. This is the fact: There is only one possible remedy in the current process, which is removal from the bench. Serious misbehaviour, though rare, is not hard to spot as it always involves law-breaking by the judge concerned or outright corruption.
Less serious complaints about misbehaviour are almost always about the question of impartiality. What would an example be of this less serious misbehaviour? A case in Saskatchewan in 2021 is a case in point. Five complaints were received about a judge who appeared in pictures with a group indirectly connected to a case on which, though he had finished hearings, he had not yet delivered judgment.
The judge in this case agreed this was a serious error on his part and that it could reflect negatively on perceptions about his impartiality in the case before him. The complaints did not proceed, as almost no one thought the judge should be removed and he had promised it would never happen again. Under the current provisions, no action could have been taken, if the judge had disputed the allegations, other than to recommend his removal from the bench for appearing in a photograph.
Bill C-9 would allow for additional remedial options other than the current sole option of recommending removal. The bill proposes the referral of complaints to a three-judge review panel, which might find removal to be warranted, and then the review panel could refer the complaint to a larger five-judge hearing panel. At the review stage, however, the review panel could still dismiss the complaint or impose remedies other than removal.
What would Canadians get out of these changes? Most importantly, they would get confidence in the judiciary that would be better maintained by having a process that was both more timely and could deal more effectively with less serious complaints. This should help prevent the judicial system from falling into disrepute and help preserve the very important trust in the impartiality of the judiciary.
Bill C-9 might actually save some taxpayer money on cases involving allegations of misconduct by federal judges, as the current process can stretch out for years. Cases involving serious misconduct now often take up to four years to resolve. Bill C-9 would expedite that process by removing the two levels of court appeals that I mentioned.
At the same time, there also may be an increase in costs for dealing with less serious allegations as there would be more options available that are currently dismissed early in the process. The benefit here is that less serious cases would no longer simply be dismissed, and instead sanctions for remedies would be possible.
In the end, and after hearing debate today, I believe Bill C-9 should prove to be relatively uncontentious. The Canadian Bar Association was part of the consultations that were held by the judicial council when Senate Bill S-5 was being drafted in the previous Parliament. There was a broader consultation that dealt with measures to clarify expectations on what constitutes “good behaviour” for federal judges that are largely set in regulations. Bill C-9 simply reforms the process for dealing with judges who fail to meet those standards.
Bill C-9 would also require more transparency with regard to how complaints are handled. The Canadian Judicial Council is responsible for administering this process, and Bill C-9 would require the council to include the number of complaints it received and how they were resolved in its annual public report.
In conclusion, New Democrats support modernizing the process for complaints against federally appointed judges, and we support adding alternative remedial options behind the current sole option of removal from the bench. The bill would allow for varied sanctions such as counselling, continuing education and other reprimands. New Democrats are supportive of streamlining and updating the process to handle complaints against federally appointed judges. This process has not been updated for 50 years. It is time for a modern complaint system for a modernized judiciary, and one that will help increase public confidence in federal judges.
The bill provides an opportunity for parties to work together to get an important reform in place, as it is yet another example of things that did not get done earlier because of the unnecessary 2021 election. We should get this done so that we can then turn our attention back to tackling the serious issues in our justice system that remain, and to confronting the opioid crisis that is better dealt with as a health matter than a judicial matter. I hope to see Bill C-9 advance quickly through the House and in the other place.
