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.

[Patrick Xavier]

Currently, there isn't. The council does issue an annual report where it provides that kind of information, but there is no current requirement. Bill C-9 is going to change that.

I believe it's proposed section 160 at the end of clause 12. It imposes a requirement for an annual report where certain numbers are provided in terms of numbers of complaints and the breakdown of the complaints that the council deals with every year.

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

Thank you, Mr. Chair. I will be splitting my time with Mr. Van Popta, so I'll endeavour to be a couple of minutes here.

Thank you to the panel.

One question I have is this. When lawyers are subject to a citation that has been founded to be appropriate, the process is that somebody makes a report to the governing law society or organization. If it's frivolous or vexatious, it's dismissed, just like in the legislation. There is that gatekeeper function. But then it becomes public for everybody.

I'm trying to recall whether Bill C‑9 makes that same complaint public.

[Patrick Xavier]

Again, that is a question that the council would be better placed to answer. I can say that what we see are the judicial review applications. A complainant can always judicially review a council decision that they're not happy with in Federal Court. That is not going to change following Bill C‑9. Bill C‑9 is only doing away with judicial review by judges; complainants can still judicially review the council.

In these judicial review applications, in the ones that go to court, there is still a fair number where the question is whether this is judicial decision-making or whether this is really judicial conduct. That's the line it seems every judicial council has to walk. It's a difficult line to walk. A lot of the ones that go to court still turn on that question.

Where it's a trend or not, I'm afraid I can't say.

[Patrick Xavier]

The obligation flows from procedural fairness. The Federal Court has found that there is a procedural fairness obligation to notify the complainant adequately of the outcome of the process. That's a legal obligation that the CJC has, that the Federal Court has found that the CJC has.

It's not expressly stated in Bill C‑9, but it's not really necessary to say that it is. It is a legal obligation that the CJC has and that they're very keenly aware of. That's why the bill doesn't need to go into it in any detail. It's there, and the CJC is well aware of it.

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

Apart from the legal obligation of procedural fairness, is there anything in Bill C‑9 that specifies that information will be provided to the complainants at each stage of the process? I know you keep saying that this can be in the policies, but I'd like to know if Bill C‑9 creates an obligation to have policies that deliver adequate information on the process to the complainants.

[Patrick Xavier]

Thank you, Mr. Garrison.

As I said earlier, unfortunately those are difficult questions to answer based on Bill C-9 alone, because that will be part of what the CJC will have to provide for in its policies outlining how it will deal with complainants under Bill C-9.

Currently, when the CJC has carriage of a complaint and asks the judge for submissions on the complaint and receives submissions that indicate that maybe some clarification of the complaint is required, my understanding is that the CJC does absolutely go back to the complainant and ask for clarification and ask for more information. If the CJC has a sense that more information should be available, for whatever reason, it will go back to the complainant and ask for more information.

All of that is very much going to be regulated by that policy and procedure on how the CJC will discharge its duty of procedural fairness toward the complainant.

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

I quite agree with you. That's also my understanding, but I wonder if Bill C‑9 could have been an opportunity to clarify those issues.

Isn't it possible to include that? I don't mean an automatic measure but at least the possibility for the Canadian Judicial Council to require full or partial reimbursement when the judge is found guilty. The idea is to ensure that the judge doesn't get the impression in a mediation process that this is an all-you-can-eat buffet. It's pretty hard to convince someone to accept a settlement when he knows from the outset that he can drag the process out and won't have to pay fees because they'll be reimbursed by the government.

It seems to me we may be passing up an opportunity to acquire an instrument for encouraging parties to settle situations of this kind. Haven't you considered it?

As you said earlier, I know this isn't clear.

[Patrick Xavier]

Yes. What's proposed in Bill C-9 actually compares very favourably with what's available abroad in countries very similar to ours. I can't say there's a country out there whose judiciary functions along the same lines as ours whose process is better. If you were to map out all of these processes, whether it be England, Wales, New Zealand or U.S. federal courts, they broadly have the shape of a capital letter “Y”. The complaints come in, they get investigated in the same way initially, and then they go one of two ways. One way is if they're not serious enough to warrant removal. If they're serious enough to warrant removal, you have a more serious set of investigations. That ultimately gets you to a public hearing and then removal by the executive and/or legislative branches.

This does follow that same pattern, but Bill C-9 involves laypersons in the process at the very outset in terms of the review of complaints. That is not something you find anywhere else. Laypersons are involved in England and Wales and New Zealand, but only at the hearings stage, when it comes time to determine whether the judge should be removed. The list of sanctions is very, very limited. It really is. It's removal or it's a reprimand or expression of concern in these other countries. The ability to, for example, require a judge to pursue continuing education or counselling is not really there.

In those two respects, Bill C-9 actually really improves on what's out there internationally.

Thank you.

[Patrick Xavier]

No, no. I should have mentioned it.

I thought I would provide a very brief overview for the committee of some of the changes in Bill C-9 that are the most salient and that will help improve the effectiveness, the fairness and the transparency of the process.

It's important to appreciate that under the current process, most of the process takes place with a single member of the Canadian Judicial Council analyzing the complaint and then determining what to do about the misconduct in question. That member of the council doesn't have the ability to impose any kind of sanction. They can issue an expression of concern about the judge's conduct, but that's about all they can do for misconduct that is not serious enough to warrant removal, which is the majority of misconduct that comes to the attention of the council.

There is currently a body called a review panel, which performs a gatekeeping function. If the single member of the council who has the complaint thinks that it might be serious enough to warrant removal, they'll send it over to the review panel. That review panel is currently the only stage of the process where there is a layperson. In this context, that simply means someone who has never been a lawyer and, therefore, also never a judge. That panel has only one task, which is to decide whether a public hearing should be held by an inquiry committee on whether the judge should be removed.

If the review panel says yes, that's when we're in the public hearing phase that I'm sure most committee members will be more familiar with. When that public hearing phase takes place, the only members of the inquiry committee are judges and lawyers designated by the Minister of Justice. They hold public hearings, they issue a report to the council of the whole, made up of CJC members who are not conflicted and have not taken part in the prior stages of the process. They look at the report and they issue the final report to the Minister of Justice.

That, unfortunately, is when the opportunity for judicial review arises. The judge, at that point, can take the report to federal court if they disagree with it. From there, it can go to the Federal Court of Appeal and from there to the Supreme Court of Canada. That aspect of the process alone—the judicial review part—can take a good two years.

The new process makes several improvements to this current process.

The first improvement comes at the very start. Instead of a single member of the council reviewing the complaint, if the complaint raises concerns about a judge's conduct, it will automatically be reviewed by a review panel, which includes a lay representative. It will have three people on it: a member of the council, a judge who is not a member of the council and a lay representative. This review panel will have the ability to impose sanctions for misconduct short of removal, and those sanctions will not require the judge's consent. You'll find them, I believe, in proposed section 102 of clause 12.

They include things like having the judge pursue a course of continuing education. There was a question earlier about how this bill might help address systemic racism in the justice system. That's probably a key provision in that regard for Bill C-9. It's a way of having a judge, who has misstepped in a way that suggests they may be acting or harbouring certain stereotypes, pursue a course of continuing education to address that.

From the review panel stage, the process then becomes de facto public and it can go toward a hearing panel, which also includes a lay representative. That hearing panel issues a report, which will contain a decision on whether the judge should be removed or not. That is when the appeal stage begins.

Instead of waiting for the report to the minister and then having judicial review, the appeal stage immediately follows the full hearing panel. There is one appeal stage at the appeal panel and then the possibility of leave to appeal to the Supreme Court of Canada, and that's all. That's where a court review ends.

From there, once the appeal stage is complete, the report goes to the Minister of Justice and that's pretty much the end of the process.

I'll leave it at that and let the committee ask questions. I don't want to take up too much time.

Those are the principle improvements that Bill C-9 seeks to make to the process.

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

Thank you very much, Mr. Chair.

I'll resist the temptation that other members have indulged in, talking to the minister about a wide number of other things, because I want to stick to confidence in the judicial system and the contribution of Bill C‑9, but I can't resist saying that I know that the minister shares my concern with systemic racism and the impact on indigenous and black Canadians in particular of systemic racism in our justice system.

With Bill C‑5 apparently on the Order Paper at third reading in the Senate right now, I'd love to talk about that. But this is what I want to ask: Do you think Bill C‑9 will make a significant contribution to the problem of systemic racism within the Canadian justice system as a whole?

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

Thank you, Mr. Chair.

Minister, I would like to hear your comments on a matter we haven't addressed until now.

Have monetary penalties been considered as one of the possible sentences or consequences of an offending judge's conduct?

Going back to the example of Justice Girouard, we could consider the matter of salary paid during the hearing and proceedings. There's also the matter of the pension that's subsequently paid. Is there any way to adjust pension payments in accordance with the decision rendered?

What particularly interests me is the issue of court costs. I understand that Bill C‑9 would set a limit on the reimbursement of legal fees that a judge could pay.

However, has anyone considered the possibility, for example, of asking offending judges to pay court costs in the event they're found guilty of misconduct? The Judicial Council obviously decides whether a judge should be sanctioned.

However, if it's decided that a judge should be sanctioned for gross misconduct, do you think it would be appropriate to provide for the Judicial Council to have the option, without being compelled to exercise it, of requiring the offending judge to repay, in whole or in part, any fees that the government is required to pay for his or her defence?

[Yasir Naqvi, Liberal, Ottawa Centre, ON]

One of the concerns that I've heard from individuals, and I'm sure you have heard the same, is that the system seems too complex the way it exists right now, that cost is an issue and that it's inefficient, especially if you are a layperson, an ordinary citizen, trying to take on a judge. They feel that it's stacked against them to begin with.

How would you assure Canadians that this new process being proposed in Bill C-9 is a fairer system, less costly and more efficient?

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

Yes, you're absolutely right. It's not only our department but also the judges themselves who worked very hard on this bill.

One thing I have to point out, particularly in both the Girouard and Camp situations, is that some of the people who were the most outraged were judges, because they feel the reputational hit that these kinds of cases have, not only as individual judges but also as part of the judiciary as a whole, so they wanted reform. Believe me, the chief justice is watching what's happening and is constantly, in his formal way, telling me that he would like to see Bill C-9 pass. It's for precisely that reason: the reputation of the judiciary is very much at stake.

They participated in these decisions. They made sure that there was procedural fairness, but they wanted more efficiency. That's true both for chief justices across Canada, the CJC and the Superior Court Judges Association. They want a better process to police their ranks, if you will, because they realize that it's important for the reputation of the judiciary as a whole.

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

Thank you. I was waiting for the very good follow-up that came, so thank you.

We've begun to take that into account with Bill C-3. It was the old private member's bill originally proposed by Rona Ambrose, which we took on and, I think, we improved. In this, we can now require newly appointed judges, as part of their application, to agree to go through precisely this kind of training, largely as a result of another case in the Bill C-9 file with former Justice Camp. We're increasing from the get-go the sensitivities and the abilities to understand what victims have gone through on the part of judges.

Chief justices have told me that Bill C-3 and the work that the National Judicial Institute has done now in developing these kinds of courses will give them leverage over existing judges; because of the principle of judicial independence, we can't force existing judges to go through training. Chief justices are now saying that because we've done this with the incoming group of judges as a matter of requirement, they can now exert more moral authority on the part of sitting judges to go through these kinds of courses.

Mr. Caputo, I share your concerns. I want to do anything we can to better train judges for precisely these kinds of cases and precisely the kinds of facts you have brought forward, and I continue to be open to good ideas.

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

Thank you.

This is a horrific set of facts and a highly repugnant outcome, in my view. I know you can't comment on that.

However, victims—particularly victims of sexual offences—are often placed in a psychological prison with a psychological life sentence. That's something I came to learn in my work. I was trained in that.

We talk about training, we talk about Bill C-9 and we talk about doing the right thing.

Minister, where should we be going when it comes to the training of judges—and we are talking about that here with Bill C-9—and when it comes to informing them of what victims go through in these circumstances?