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.

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

Thank you.

Can I ask you a question about transparency generally? Transparency is a really big issue. It's obviously central to the rule of law. We have an open court principle generally, and in my view transparency must be sacrosanct.

Do you view Bill C-9 as being appropriately transparent, not transparent enough or too transparent? Do you have any thoughts on that?

[Indra Maharaj]

Thank you for the clarification.

I appreciate that there is a difference. However, when the judges, and the members of that whole review panel, are sitting in that capacity—remember there are also lawyers and lay members there—there is a broad and diverse opportunity for there to be consideration of the merits of the case.

The CBA supports the process that has been set out in Bill C-9 because, in part, of the depth of consultation of the affected parties that it has undergone. While it's an interesting concept, the purpose of Bill C-9 is to remove levels of procedural duplication and to ensure that the core fundamentals of administrative fairness are met. We believe that that is the case with Bill C-9.

[Indra Maharaj]

I think everybody in the room would hope that the answer would be “never”, because hopefully we don't have judicial misconduct that needs to be considered at a level of national importance. The reality is that the Supreme Court of Canada has limited time available to it, and it is selective about the cases it must allocate that time to. That's why the leave process is there. One of the other panellists provided some information earlier about some statistics around the number of cases where leave is sought, and where leave is actually granted.

Having a very high bar at the Supreme Court of Canada does support the fairness of the process, because it creates that ultimate authority. The Supreme Court of Canada is that ultimate judicial authority where a case could end up, should it be justified, should it be of such substantial importance that the Supreme Court of Canada ought to contribute its wisdom to the case.

Prior to that being granted, the levels of reviews contained in the process set out in Bill C-9 provide a robust and significant opportunity for all issues to be heard and adjudicated fairly, in the position of the CBA.

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

Thank you very much, Mr. Chair.

Thank you, Ms. Maharaj, for being with us today representing the Canadian Bar Association. I think you captured very succinctly the challenge here that Bill C-9 is trying to meet, which is to balance the independence of judges with public confidence, but I would also add the rights of those judges who are being disciplined.

I want to return to the question of an effective appeal. We know the Supreme Court has set a very high bar for granting leave to hear cases and that these cases must in fact, in common language, be of national significance or national importance or constitutional importance before they'll actually be heard. I'm wondering, in that case, how often we could expect that the Supreme Court would actually hear appeals from this process, given that very high bar they've set.

[Indra Maharaj]

Thank you.

Let me see if I can be a bit more concise. The consultation that has occurred has not resulted in compensation of legal fees paid on behalf of a judge involved in a disciplinary process rising to the level of needing to be included in Bill C-9. That, to me, does not preclude an appeal panel's making of a decision that may be different. However, that being said, the CBA hasn't taken a position specifically with respect to this issue.

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

Thank you, Mr. Chair.

Ms. Maharaj, thank you for joining us this afternoon.

I would like to raise with you the issue of sanctions. As my colleague Mr. Moore said, the parties will probably support this bill in the House, but there are still some interesting issues to look at, including the economics of this. That is what is being criticized the most.

When a judge is found guilty of some kind of misconduct and a penalty is imposed, people will often respond by saying that it cost hundreds of thousands of dollars in court costs, in addition to the judge's increased pension and salary. I understand that there are provisions in Bill C‑9 that provide for some adjustments when the judge is convicted, but the issue of legal fees remains important to me.

In your view, would it not have been appropriate to adjust Bill C‑9 so that a judge found guilty of a breach would be required to reimburse all or a significant portion of legal fees, in order to stem the tide of challenges, which can often appear unnecessary and merely dilatory?

[Indra Maharaj]

Thank you.

We do feel that Bill C-9 meets the objectives set out in our recommendations. It provides a process that is responsive to the various types of complaints that could be made. It's also responsive to the complainants' involvement as well as the judges' entitlement to defend themselves should they be accused of misconduct. What Bill C-9 does is create a better balance than what we had before.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

In 2014, you made a submission to the Canadian Judicial Council, in which you made 16 recommendations.

One of them was to ensure that the complaints process for judges meets the objectives of balancing judicial independence and public confidence in the administration of justice.

Do you believe that Bill C‑9 achieves this objective?

[Élisabeth Brière, Liberal, Sherbrooke, QC]

Do you think that the sanctions that are listed and those that can be thought of under Bill C‑9 in response to complaints that are less serious are justified or worthwhile?

[Élisabeth Brière, Liberal, Sherbrooke, QC]

Thank you very much, Mr. Chair.

Good afternoon, Ms. Maharaj. It is a pleasure to have you here this afternoon.

Bill C‑9 introduces a process for reviewing allegations that are too insignificant to warrant the removal of a judge. In your letter to the committee chair, you wrote that the allegation screening process is a step in the right direction.

Is it a small or a big step?

In your view, is it right for a review panel to look at less serious complaints rather than having a member of the Canadian Judicial Council do the review?

[Rob Moore, Conservative, Fundy Royal, NB]

Okay. Thank you.

I only have 30 seconds left. Do you have any quick comment on the current system, in which there are undue delays?

What do you see as the key to Bill C-9? Is there on overarching feature that you feel, if there were to be amendments, we definitely want to stick with?

[Indra Maharaj, Chair, The Canadian Bar Association - Judicial Issues Subcommittee]

Thank you.

Good afternoon, Mr. Chair and members of the Standing Committee on Justice and Human Rights. Thank you for the invitation to appear before you today. It is both an honour and a privilege to be able to present the Canadian Bar Association's position with respect to the issues raised by the proposed amendment to the Judges Act, Bill C-9.

My name is Indra Maharaj, and I am the chair of the judicial issues subcommittee.

I would like to begin by recognizing that I am attending this meeting from the traditional territories of the Blackfoot Confederacy—Siksika, Kainai and Piikani—the Tsuut'ina and Stoney Nakoda nations, Métis Nation Region 3, and all people who make their homes in the Treaty 7 region of southern Alberta.

The CBA represents lawyers, law students, academics and judges across our entire country, where different first nations have made their homes and stewarded the lands that form our unique and beautiful Canada. I will pause for a few seconds of silence, so that each of us can acknowledge the treaty or traditional territory in our own location.

Thank you.

The Canadian Bar Association is a national association of 37,000 members, including judges, lawyers, academics and students across Canada, with a mandate to seek improvements in the law and the administration of justice. Specifically, with respect to Bill C-9—introduced on December 16, 2021—the Canadian Bar Association submitted commentary to this committee, on February 17, 2022, in support of the amendments proposed.

Among other things, the Judges Act establishes a discipline process for federally appointed judges in response to complaints filed about their conduct. Recent government consultations underscored concerns about the length of time required to investigate these complaints and the consequent costs of investigations, including the potential cost of a member of the bench being unable to fulfill their duties while defending a complaint for misconduct.

The CBA's recommendations are focused on ensuring that the objectives of protecting the independence of the judiciary and ensuring the public's confidence in the administration of justice are respected in the process.

Bill C-9 amends the process through which the conduct of federally appointed judges is reviewed by the CJC in three significant ways: It creates a process for reviewing allegations not serious enough to warrant removal from office; it improves the process by which recommendations for removal are made to the minister; and it ensures that the determination of pensionable service for judges ultimately removed from office reflects their time of service and does not include the time of review, all while ensuring that, if the judge is exonerated, they do not lose the time spent defending the claim made against them.

I have a little more detail.

First, the process for screening complaints that may not be serious enough to warrant removal from office is a positive development. It enhances the Canadian Judicial Council's capacity to respond quickly to allegations of misconduct and provides sanction options in these cases, such as counselling, continuing education and reprimands. This process saves the CJC time, ensures that judicial resources are well managed, and minimizes the amount of time a judge might potentially spend defending a frivolous complaint while not sitting on the bench.

Second, improving the discipline process ensures that meritorious claims are moved forward and department resources are used efficiently. It also promotes procedural fairness and is designed to minimize delays and control costs.

Third, it is critical that judges, like any other litigant, are able to defend their conduct in a fair, transparent process and be satisfied that, if they are ultimately exonerated, their pensionable service will be protected during the period of time dedicated to defending their case. However, it is equally important that time spent during that process does not contribute to pensionable service if the complaint results in removal of the judge from office.

Judicial independence and judicial accountability are both essential to ensuring the integrity of our judicial system, the primacy of the fair administration of justice and the support of the rule of law. If our judiciary is to be respected and trusted, the public must be confident that judges, through a fair and transparent process, are both independent of external influences and held accountable for their conduct on the bench.

Thank you. I'm happy to take any questions you may have.

[The Chair, Liberal, Randeep Sarai]

I call this meeting to order.

Welcome to meeting 39 of the House of Commons Standing Committee on Justice and Human Rights. Pursuant to the order of reference of October 31, the committee is continuing 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 would like to make a few comments for the benefit of the witnesses and members.

Please wait until I recognize you by name before speaking. For those participating by video conference, click on the microphone icon to activate your microphone, and please mute yourself when you are not speaking. For interpretation, those on Zoom have the choice, at the bottom of the screen, of floor, English or French. Those in the room can select the desired channel for their earpiece.

I'll remind you that all comments should be addressed through the chair. For members in the room, if you wish to speak, please raise your hand. If you're on Zoom, please use the “raise hand” function. The clerk and I will do our best to place you on the speaking order.

For your information, all tests have been successfully performed with our witnesses.

Now I would now like to welcome our witness for the first hour.

Appearing today we will have Indra Maharaj from the Canadian Bar Association judicial issues subcommittee. She is appearing by video conference.

You have five minutes, Ms. Maharaj. I will let you know that I use little cue cards. Watch for the cue card for when you have 30 seconds left. When you're out of time, I use this one. Just wrap up, so I don't have to interrupt your train of thought.

We'll go over to you for five minutes, Ms. Maharaj.

Public Complaints and Review Commission Act

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

Mr. Speaker, it is always a pleasure to rise on behalf of the people of Kamloops—Thompson—Cariboo. Today, we are here debating Bill C-20, an act that would establish the public complaints and review commission and amend certain acts and statutory instruments.

First, I want to recognize a first-year law student at Thompson Rivers University where I used to teach. I want to thank Najib Rahall, who is about to start contracts class, which I appreciate. He is now in Hansard. I thank him for turning in my wallet this weekend. He is taught by my friends Professor Craig Jones, K.C. and Professor Dr. Ryan Gauthier. I am sure he is also getting a first-class education.

I also want to recognize somebody else who is a constituent. He was also a colleague at the bar and at my work, maybe even taking my position as a Crown prosecutor. I want to recognize my friend, Anthony Varesi, on his new book on Bob Dylan. It is his second book. He wrote the first one in law school. I am not sure how he did that.

On the matter at hand, it seems the Liberals have been discussing this issue well before I arrived at Parliament. From what I can see, this matter has been discussed for about seven years. The bill was first tabled in the 42nd Parliament and died in the Senate. It was then tabled again during the 43rd Parliament. We all know what happened at that point. Despite Canadians clearly signalling they did not want to go to the polls and despite the fact there was a lot of work to be done, the Prime Minister coveted majority government and, with all candour, let that get in the way of the work of the House.

Having been here for a year, I am still learning, but what I can see is that there is a lot of work to be done. The work on this bill in the 43rd Parliament was interrupted by what amounted to a small seat change in hopes that the Prime Minister would get what he wanted. He was ultimately denied that, but there was a seat shuffle, and I am proud to stand here on behalf of the people of Kamloops—Thompson—Cariboo as part of that seat shuffle.

Now we have this bill tabled a year into the government's mandate. As I was preparing for this speech, I reflected on why it took the government a year to do this. The election was about 14 months ago. I am wondering whether this was a priority. In fact, I asked my Bloc colleague a question about this. This is an important matter to discuss.

Canada has what amounts to the longest undefended border in the world. I have had countless interactions with the RCMP and with CBSA officials, some of them in my personal capacity and others in my professional capacity. These interactions likely number into the hundreds, and all but one have generally been cordial or favourable professional interactions. That is why we are here, because not all interactions and not all things go as they should both personally and professionally.

I will take a moment to recognize the work of peace officers, civilian members and staff with the CBSA and with the RCMP. In my riding, there are detachments with the RCMP, like Clinton, 100 Mile House, Clearwater and Barriere. There are three detachments also in Kamloops, being Kamloops City, Tk'emlups rural, which is situated on the traditional land of the Tk’emlups te Secwepemc, and Kamloops traffic. All of these detachments cover 38,000 square kilometres of Kamloops—Thompson—Cariboo. I am grateful for the sacrifices of those who put on the uniform to keep us safe, with their backup officers often being an hour away through staffing or resource difficulties. They are there to keep people safe whenever they are in that area. These members see terrible things.

I was speaking to a bill I authored, Bill C-291, last week. I authored the bill and it was sponsored by the member for North Okanagan—Shuswap, and I thank him again for doing so. The bill proposes to change the definition of “child pornography” to “child sexual abuse material”, because what is occurring is not pornography, it is sexual abuse, and we should be calling it what it is.

One of the things I pointed out was that police doing this job were often at a constable level and they were reviewing horrendous images, images of unspeakable horrors. Usually, in my prior work, I did not have to view this sort of evidence, but police officers did, and they are not paid enough to do so, frankly, given the work they do. I thank them for that.

Let us face it, most peace officers, people and frontline workers doing the job just want to make it home. They do not want to hurt anybody. A lot of police officers I know would love to go through a shift without having to arrest anybody. That is often not something most police officers do. At the end of the day, people in the RCMP and CBSA have a mandate to keep us safe. They are expected to do more with less resources. While this is not always fair, it is the reality of our situation.

When it comes to our frontline officers and workers, we expect leadership. We expect them to engage professionally, to do their jobs, to be equipped and to be professional in all that they do. I wish I could see the same from the RCMP commissioner at this time. It seems to me that the commissioner is not always modelling that professionalism, being vulnerable to inappropriate influence from the former Minister of Public Safety. It is ironic that Bill C-20 talks about the overseeing of frontline officers, mainly constables, but I question whether senior Mounties or, in this case, the senior Mountie is herself immune from the oversight that is required.

I point to what the member for Kildonan—St. Paul said in committee in questioning the minister. I will do my best to paraphrase her, because I cannot be nearly as eloquent as the member. She noted that the commissioner was either influenced by the government or completely bungled the investigation into the mass shootings in Nova Scotia, a terrible incident, She asked why she had not been fired. This is the professionalism, oversight and leadership that Canadians want.

At the end of the day, we are here to talk about who oversees the overseers. This came up when we were debating Bill C-9 at committee in the past week or two. That bill proposes changes to the Judges Act that are long overdue.

Before I came to Parliament, I was unaware that there was no independent oversight for CBSA. Let us not forget that these are frontline peace officers. Oftentimes and typically, they will be people's first human point of contact once they get off the plane or at a land or sea border crossing. The provisions would require the RCMP commissioner and the CBSA president to respond to interim reports, reviews and recommendations within legislative timelines. This is quite important because we require, in my view, a consideration of some measure of independent oversight.

Most people here know that I come from a legal background. In my world view, the rule of law is obviously sacrosanct. Sometimes, we can have heated debates in this place, as we should, about how that should manifest itself. We may agree to disagree, but at the end of the day I think we can all agree that the rule of law is important. In fact, it is written into the preamble of the Charter of Rights and Freedoms.

In the courts, the rule of law is maintained in two ways, typically through an appellate function but also through ethical guidelines, for instance, the ethical guidelines that are being revised in Bill C-9. The overseers are overseen on legal matters by these two mechanisms.

The one question I do have when it comes to Bill C-20, and this came up in Bill C-9, is the question of consultations. I believe my colleague for the NDP raised this. I am not sure what, if any, consultations were done, but this obviously needs be explored at committee, if the legislation successfully passes on second reading. Let us face it that governments of all stripes often fail on these issues. We have seen it on the extreme intoxication bill. I call on the government to make this a priority.

CBSA has extraordinary powers, detention, arrest and search. These are sweeping powers where charter rights are often diminished. This bill would replace the existing Civilian Review and Complaints Commission for the RCMP with the complaints and review commission.

Let us examine the backdrop in which peace officers within the RCMP and CBSA are expected to do their job. It is important to evaluate that backdrop as we consider the independent oversight for peace officers doing their job.

My constituents frequently complain to me about what they have termed, and others have termed, catch and release. I hear about this from police officers from across the country. This is why I put forward Bill C-274, because our bail system must be reformed.

I have compassion for police officers doing their job and arresting the same person again and again, only to know that this person will be released shortly.

The government, though it is dealing with the oversight issue in Bill C-20, has not addressed key bail decisions in the last few years, which has led to a catch-and-release system. It is in the interest of all Canadians that the government do so.

There has been a 32% increase in violent crime since 2015. This is not lost on this side of the House. We have Bill C-5 and Bill C-21. The word “victim” is not in either piece of legislation.

It saddens me to say, and I am surprised to be saying this, that drive-by shootings can now result in a community-based sentence. That does not feel right in my heart, but, more important, from a legal perspective, it is not logical.

The Regina v. Nur decision struck down mandatory minimums for section 95 of the Criminal Code, possessing a restricted firearm with readily available ammunition, in this case a handgun. In that instance, the Supreme Court of Canada said that the appropriate sentence, as I recall, would be 40 months in jail.

That is what it said the appropriate sentence would be for a relatively young man. I believe the accused in that case was 19 or 20 years old. We are here debating, not long after Nur was struck down, whether that should actually result in a jail sentence when our highest court, which has frequently struck down these cases, said that this should have been 40 months in jail.

On the one hand, we have Conservatives who have often advocated for mandatory minimums. It was the Harper government that passed many of the mandatory minimums. On the other hand, we have, across the aisle, people who say that there should be no mandatory minimums.

I would advocate for a middle-ground approach, one that has mandatory minimums that operate in a constitutionally compliant manner. I have stated this to the Minister of Justice, that this is the appropriate middle ground. Unfortunately, he did not heed my exhortation to do so.

Police and CBSA officials are operating within an environment that has 124,000 more violent crimes than last year. This would make up almost my whole riding. Canadians are tired of this. Also, there were 789 homicides in Canada last year and 611 in 2015, which is a 29% increase.

Police and CBSA are in situations in which gun crime is a concern. I recall reading in the news a couple of years ago about a shooting of a teenager who was innocently driving with his parents. There was a person in my riding, a case of mistaken identity, who was shot down at a hotel. This is the situation our police are operating within. These were sons, brothers and friends.

There has been a 92% increase in gang-related homicides since 2015, yet when we come to the House to debate legislation on public safety, the debate is whether or not to relax these types of penalties rather than make them more stringent so that gang-related homicides would ultimately go down rather than up.

If members ask anyone in the system, I anticipate they will tell them that organized crime is so difficult to investigate. That is why they call it “organized”. There is intimidation, often a layer of distancing, money and organization.

If I were a police officer or a CBSA officer, I would be concerned with the proliferation of firearms. I remember one of the first cases I dealt with which involved now staff sergeant Kelly Butler, one of the best police officers I have encountered. She pulled a vehicle over and what was revealed inside the driver's jacket was a loaded sawed-off shotgun. I remember holding that firearm when it was in evidence. The firearm was illegal. The stock and the barrel had been cut off, so it was probably about 10 to 12 inches long. That is the environment our peace officers and CBSA officers are operating within.

Our border is porous, and there is a concern of what to do about it. The public safety minister has earmarked, as I recall, $5 billion to target law-abiding gun owners who are not accounting for crimes. Bill C-5 and Bill C-21 will be targeting that. Where could $5 billion be spent when it comes to our border and enforcement of illegal guns? I ask that question rhetorically because I have some pretty good ideas.

There has been a 61% increase in reporting sexual assaults since 2015. I have two bills on sexual offences. We obviously had the #MeToo movement in that time, which is always important. My wife was telling me that she saw a sign recently that said, “No means no”, but we have to go one step further and say, “Only yes means yes”. Only consent itself is consent.

To conclude, this proposed act would create an obligation for the RCMP commissioner and CBSA president to submit an annual report to the Minister of Public Safety. The report would inform the minister of actions that the RCMP and CBSA have taken within the year to respond to recommendations from the chairperson.

This is great, but one thing I learned in my first year in Parliament, while sitting on the veterans affairs committee is that, just because a recommendation is made, does not mean it will be acted upon. My hope is that, when these recommendations are made, they will actually be acted upon, otherwise they are worth nothing more than the piece of paper they are written upon. It is easy to use words, and we have frequently said that, but I call on the government to act.

[Marc Giroux]

You raise a specific issue that I think clearly illustrates why Bill C‑9 is needed. The multiple requests for judicial review meant that the process dragged on for nearly seven years, resulting in significant legal costs. There were also costs associated with the council's having to address those requests for judicial review.

I would point out that the bill does set some limits, for instance, when it comes to calculating the judge's annuity. The period used to calculate the annuity ends when the council recommends that the judge be removed from office in a report submitted to the Minister of Justice. That's one thing.

Obviously, Bill C‑9 does not provide for judicial review. It is stipulated, however, that the judge's legal fees will not be paid in cases in which a judicial review is requested. The Office of the Commissioner for Federal Judicial Affairs has a budget to cover the legal fees of judges, and the money is used only for that. Every year, we have to request that funding from the government, if necessary.

Bill C‑9 takes that into account so we don't have to go through that exercise every time. We are bound by the rates set by the Department of Justice for the retaining of legal services. Bill C‑9 also mentions the commissioner for federal judicial affairs, legal fees and the fact that we basically have to take into account what the government provides for in terms of legal fees. If we have to deviate from that, we are required to indicate why.