Bill S-4

An Act to amend the Criminal Code and the Identification of Criminals Act and to make related amendments to other Acts (COVID-19 response and other measures)

This enactment amends the Criminal Code to, among other things,
(a) allow for the use of electronic or other automated means for the purposes of the jury selection process;
(b) expand, for the accused and offenders, the availability of remote appearances by audioconference and videoconference in certain circumstances;
(c) provide for the participation of prospective jurors in the jury selection process by videoconference in certain circumstances;
(d) expand the power of courts to make case management rules permitting court personnel to deal with administrative matters for accused not represented by counsel;
(e) permit courts to order fingerprinting at the interim release stage and at any other stage of the criminal justice process if fingerprints could not previously have been taken for exceptional reasons; and
(f) replace the existing telewarrant provisions with a process that permits a wide variety of search warrants, authorizations and orders to be applied for and issued by a means of telecommunication.
The enactment makes amendments to the Criminal Code and the Identification of Criminals Act to correct minor technical errors and includes transitional provisions on the application of the amendments. It also makes related amendments to other Acts.
The enactment also provides for one or more independent reviews on the use of remote proceedings in criminal justice matters.
Lastly, the enactment also provides for a parliamentary review of the provisions enacted or amended by this enactment and of the use of remote proceedings in criminal justice matters to commence at the start of the fifth year following the day on which it receives royal assent.

Business of the House

[Kevin Lamoureux, Liberal, Parliamentary Secretary to the Leader of the Government in the House of Commons]

Madam Speaker, there have been discussions among the parties, and if you seek it, I believe you will find unanimous consent to adopt the following motion.

I move:

That, notwithstanding any standing order, special order or usual practices of the House:

(a) Bill C-278, An Act to prevent the imposition by the federal government of vaccination mandates for employment and travel, standing on the Order Paper in the name of the member for Carleton, shall now stand in the name of the member for Niagara West and be placed in the order of precedence at the same place and stage as Bill C-285, An Act to amend the Canadian Human Rights Act, the Canada Labour Code and the Employment Insurance Act, and be deemed to have been reported to the house pursuant to Standing Order 91.1 recommending it not be designated non-votable, and the order for the second reading of Bill C-285 shall be discharged and the bill withdrawn;

(b) Bill S-202, An Act to amend the Parliament of Canada Act (Parliamentary Visual Artist Laureate), standing in the name of the member for Bow River, shall now stand in the name of the member for Cloverdale—Langley City; and

(c) Bill S-4, An Act to amend the Criminal Code and the Identification of Criminals Act and to make related amendments to other Acts (COVID-19 response and other measures), be deemed adopted at report stage on division and be deemed adopted at the third reading stage on division.

Justice and Human Rights

[Randeep Sarai, Liberal, Surrey Centre, BC]

Mr. Speaker, I have the honour to present, in both official languages, the ninth report of the Standing Committee on Justice and Human Rights in relation to Bill S-4, an act to amend the Criminal Code and the Identification of Criminals Act and to make related amendments to other acts (COVID-19 response and other measures). The committee has studied the bill and has decided to report the bill back to the House without amendment.

I also have the honour to present, in both official languages, the 10th report, entitled “The Defence of Extreme Intoxication Akin to Automatism: A Study of the Legislative Response to the Supreme Court of Canada Decision R v. Brown”. Pursuant to Standing Order 109, the committee requests that the government table a comprehensive response to this report.

I would like to thank all of the clerks and the great legislative assistants and analysts who helped us with this report.

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

Thank you, Mr. Chair.

I thank Mr. Taylor for the reminder for all of us that the presumption in the Criminal Code is that appearances will be in person and that what we're dealing with are exceptions. I don't share the optimism that others have about either this or future pandemics.

I also have a great deal of pessimism about the impacts of climate change as it affects all of our systems. I think having the exceptional provisions in place in advance will serve us well as we head into the future. I'm convinced that the requirement of consent by both prosecutors and the accused provides sufficient protection.

Admittedly, there's one circumstance when that doesn't apply. However, I'm also reassured by the section on “appearance by audioconference or videoconference”, where it says, “the court must be of the opinion that the appearance by those means would be appropriate having regard to all the circumstances”.

Therefore generally, with regard to amendments to Bill S-4, I will be voting against them. I think the existing protections are simply being reinforced here, and we are creating some exceptional circumstances to deal with the world we live in today. I will be voting against the amendments.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you, Mr. Chair.

Not to answer Mr. Fortin's question, but discussion on these two provisions, clause 46 and then, by extension, clause 39.... We had a very abbreviated opportunity to study this bill, of course, but it has been in the Senate, so I looked at some interesting Senate testimony.

We did have the benefit of hearing from the Quebec bar this morning. For some of this, there was a long-standing need pre-COVID. Some of what we see in Bill S-4 is certainly a reflection of being in a pandemic time when there were major limitations on in-person meetings and a desire to be able to do things differently in every aspect of our lives, including the judicial.

I looked at the amendments being put forward by Mr. Fortin and at the CPC amendments. I know there's probably some conflict between the two. However, I look at that as maybe reflective of the fact that we are past the COVID pandemic lockdowns right now, and while there are many aspects that are very important in Bill S-4, there are aspects—certain presumptions that are included—that I think we may want to put the brakes on a little bit.

Today I have the unique opportunity, just because of an Air Canada flight cancelled for no apparent reason, to participate in this meeting virtually. Normally I'm there in person, so I can tell you that there are major limitations on the ability to understand what's happening in the room and get a perspective on how people are receiving what is or isn't being said, and all the non-verbal cues one might get.

That's lacking in any kind of virtual meeting. The most important proceeding, at the highest level, is going to be a judicial proceeding in which someone's life, and possibly his or her future, hangs in the balance, or one in which victims are being asked to participate in a system that all too often revictimizes them.

Without belabouring the point, I think there are some reasons that I'm very receptive to the comments made by the Barreau du Québec as well as the amendments that have been put forward, and I think I'm inclined to support them, for sure.

[Gary Anandasangaree, Liberal, Scarborough—Rouge Park, ON]

Thank you, Mr. Taylor, for that clarification.

I think, based on what you have said and on what the witnesses have said, that it's very clear that the scope of Bill S-4 is very important. It makes remote proceedings available in some circumstances when all parties agree to these proceedings.

Some of us have practised for some years in courtrooms, and we know that at some point, access to witnesses can be difficult. There were a number of examples cited. I think Ms. Brière brought one up as well.

I also think it's important to note that Criminal Code section 715.24 is not a new provision. It would merely re-enact a new part of the Criminal Code to clarify and consolidate the provisions on criminal proceedings.

It would also be preferable to have these existing powers located in the part on remote proceedings, because that will ensure that the court is required to take into consideration the factors set out in section 715.23. This recommendation would also undo long-standing court powers that I understand go back to 1999. In some cases, some are from the mid-2000s.

For this reason, we will not be supporting clause 46 and subsequently clause 39.

[Matthew Taylor, General Counsel and Director, Criminal Law Policy Section, Department of Justice]

Thank you.

Good morning.

I'm hoping that someone could provide me a copy of that motion, because I don't have the BQ motions. I gather it relates to section 650 of the code, but if I could have a copy, that would help.

I think I understand. To me, this looks like a consequential amendment to another substantive amendment that will come later, and specifically to remove reference to certain proposed sections in the bill.

If I understand correctly, the concern relates to the remote appearance provision, meaning this clause and clause 46 of the bill, and maybe I can start with some general information.

The first thing I would point out to the committee is that clause 45 of the bill re-enacts a provision that already exists in the Criminal Code—or would re-enact a provision that already exists in the Criminal Code—which states the principle that as a general matter, proceedings would be done in person. That's the starting point. Then, what clause 46 proposes to do is to consolidate and clarify a bunch of different rules that already exist in the Criminal Code with respect to remote appearances.

In effect, when I say “consolidate”, there are provisions, for example, as in clause 39, in section 650 of the Criminal Code. There are provisions in other clauses of the bill that are being opened, such as section 537 of the Criminal Code and section 800 of the Criminal Code, that all deal with the rules around remote appearances. Bill S-4 doesn't propose to change those rules, so to the extent that an individual can appear by video conference, Bill S-4 doesn't propose to change that.

If I understand as well the concern around proposed section 715.241 with the requirement of an accused to appear in in a situation where there isn't consent provided, that is simply a re-enactment of existing rules. It doesn't change the law in that respect.

The goal here is really to ensure that if an individual in custody is going to appear in a proceeding, the court ensures they have access to legal advice before they do so.

I know that's a lot of different pieces of information, but I think the main point to convey is that Bill S-4 really seeks to consolidate and clarify existing laws around remote appearances.

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

Thank you, Mr. Chair.

Amendments BQ-1 and BQ-2 go together.

In amendment BQ-2, we are proposing to delete lines 7 to 11 on page 22, to reflect the recommendations made by the Barreau du Québec relating to the problem associated with section 715.241, which deals with mandatory appearance by videoconference. That section seems to us to be a bit counterproductive. That is the idea behind recommendations BQ-1, BQ-2 and BQ-3.

I am not going to add to what was said earlier. The bâtonnière and the lawyer who accompanied her clearly described the problem associated with requiring someone in custody to appear by videoconference. It opens the door to possible appeals and undermines public confidence in the sound administration of justice. It also appears to me to be a major breach of the protections granted by the Canadian Charter of Rights and Freedoms.

If an individual who is in custody agrees to appear virtually, there is no problem. However, provisions as worded in section 715.241 open the door to anything at all if, for some reason, the judge then imposes it on an accused who is not represented by counsel. A lawyer can say, a month or a year later, that their client consented without being aware of the effects of their consent and without having an opportunity to meet with counsel because they were in custody. The lawyer can say that the court compelled an appearance by videoconference.

Bill S‑4 is a fine bill that proposes a modern way of proceeding and, overall, respects the parties' rights. I am going to agree to Bill S-4, but there is this one hitch that seems to me to pose a serious problem. I think we must protect ourselves from it.

In amendment BQ-1, we want to make an amendment by replacing, for consistency, line 19 on page 18, where it refers to sections 715.231 to 715.241. Because I am going to propose that section 715.241 be eliminated, an amendment has to be made there.

Thank you, Mr. Chair.

[The Chair, Liberal, Randeep Sarai]

We'll resume.

We'll be doing clause-by-clause consideration.

From the Department of Justice, we have Matthew Taylor, director and general counsel, criminal law policy section.

Do we have anyone online, Mr. Clerk?

We also have Normand Wong, senior counsel, criminal law policy section, by video conference.

I have some considerations. I'd like to provide members of the committee with some instructions and a few comments on how the committee will proceed with clause-by-clause consideration of Bill S-4.

As the name indicates, this is an examination of all the clauses in the order in which they appear in the bill. I will call each clause successively, and each clause is subject to debate and a vote.

If there are amendments to the clause in question, I will recognize the member proposing it, who may explain it. The amendment will then be open for debate. When no further members wish to intervene, the amendment will be voted on. Amendments will be considered in the order in which they appear in the bill and in the package each member received from the clerk.

Members should note that amendments must be submitted in writing to the clerk of the committee. The clerk has advised me that if you want an amendment resulting from the testimony we just heard, you can still send it to the clerk in writing and we shall consider it.

The chair will go slowly to allow members to follow the proceedings properly. Amendments have been given an alphanumeric number in the top right corner to indicate which party submitted them. There is no need for a seconder to move an amendment. Once moved, you will need unanimous consent to withdraw it.

During debate on amendments, members are permitted to move subamendments. These subamendments must be submitted in writing. They do not require the approval of the mover of the amendment.

Only one subamendment may be considered at a time, and that subamendment cannot be amended. When a subamendment to the amendment is moved, it is voted on first. Another subamendment may then be moved, or the committee may consider the main amendment and vote on it.

Once every clause has been voted on, the committee will vote on the short title, the title and the bill itself. If amendments are adopted, an order to reprint the bill may be required so that the House has a proper copy for use at report stage. That report contains only the text of any adopted amendments, as well as indications of any deleted clauses.

We'll begin the clause-by-clause study. Before I call clause 1, in the interest of time, and given that there are no amendments to most clauses, I seek the unanimous consent of the committee to regroup clauses for the purpose of voting, starting with clauses 1 to 38. We'd then debate the amendment on clause 39 and group subsequent clauses as we go along.

Is there unanimous consent?

[Nicolas Le Grand Alary]

We acknowledge that this procedure is conditional on consent. However, we have to recall that section 715.221 that is created in Bill S‑4 provides that the judge must give written reasons for denying video appearance and must include those reasons in the record. If the request is denied, there must be a justification. So this is the start of a move toward an application that is solely conditional on consent.

There is the case of parties who are not represented by counsel and who might sometimes agree to it without knowing the consequences.

Again, we are not opposed to video appearance. However, apart from that, the most important point we want to make is that we want to make sure the process is carried out in accordance with the rules and that all guarantees are provided, whether they be technological or under the Canadian Charter of Rights and Freedoms. We have to make sure that everything is respected.

What we are doing is codifying, making certain measures that we adopted temporarily during COVID-19 permanent. We may not have studied all the potential consequences and possibilities. It also calls for an effort to obtain data and statistics that might reassure the legal community.

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

Thank you, Mr. Chair.

Thank you for being here, Madam Bâtonnière and Mr. Le Grand Alary. I'm pleased that you are here this morning to testify.

As my colleague Ms. Diab pointed out, you appeared before the Senate previously, last spring, as part of the study of Bill S‑4. I am satisfied that the Senate has done a thorough job. However, the committee also has a job to do, and we have to do it just as thoroughly. I don't think we can rely solely on the work done by others.

You have raised important issues in relation to Bill S‑4. What I understand is that you have the same concern as Parliament and many justice system participants. We want to modernize the justice system to allow working by videoconference where it is useful. Videoconferencing is an excellent tool that should be used when the time is right, which is the key.

In your third recommendation, you raised the subject of section 715.241, which allows the court to require a videoconference hearing where the accused has not necessarily consented.

What would the consequences of a provision like that be if it were not amended?

[Nicolas Le Grand Alary]

Thank you for your question.

We are not aware of the positions taken by other law societies in Canada, but we have the same objective as the committee when it comes to Bill S‑4: to improve the justice system and adopt the positive lessons learned from the pandemic. As you said, there has been an ongoing effort to modernize the courts for several years now. It continued and accelerated during the pandemic because of public health requirements, for example, when hearings in person could not take place.

I would reiterate that we are not opposed to continuing that effort, but the bill provides for certain tools used during the pandemic to be implemented permanently for the future.

What the Barreau du Québec is proposing is that we step back a little and assess the effectiveness of these measures. Have they shown that they allowed for the procedural guarantees and rights guaranteed by the Canadian Charter of Rights and Freedoms to be respected? That is the reason we are here today.

We agree on the objective of the bill, in large part, but we still want to point out certain problems.

You said that it would remain an option. That's true: the judge must decide it, with the consent of the parties. However, the judge must justify the denial, if that is the case. There therefore seems to be an opening for video appearances to become the norm and not the exception. We wanted to draw your attention to that as well.

[Catherine Claveau, Bâtonnière du Québec, Barreau du Québec]

Mr. Chair, committee members, I will introduce myself again. My name is Catherine Claveau, and I am the Bâtonnière du Québec. I am joined by Nicolas Le Grand Alary, who is a lawyer with the Secretariat of the Order and Legal Affairs of the Barreau du Québec.

Thank you for inviting the representatives of the Barreau to testify before you concerning Bill S‑4.

For over two years, the COVID‑19 pandemic has created issues and imposed constraints on the criminal justice system. The courts have managed to adapt to the challenges that faced them while complying with the Canadian Charter of Rights and Freedoms.

The objective of Bill S‑4 is to modernize criminal procedure by giving the courts broader powers regarding the conduct of criminal proceedings and allowing them to make orders.

Like other legislative initiatives, Bill S‑4 aims to make the solutions relating to the administration of justice that were implemented in order to respond to the problems experienced during the COVID‑19 pandemic permanent. The impact of these amendments, and particularly the anticipated benefits, must therefore be evaluated well beyond the pandemic context. While the Barreau supports any measure that facilitates access to justice and the efficiency of criminal trials, the quality of the justice done must remain a priority.

One of the bill's provisions is the possibility of appearing by videoconference at various stages of the trial, whether the trial proceeds summarily or by indictment. That possibility is conditional on the consent of the prosecutor and the accused and the permission of the court, which must determine whether proceeding remotely is appropriate. Remote trials are therefore imposed as the rule rather than the exception.

While there are numerous advantages to using technological methods for holding a trial, we wonder about the impact of this new rule. More specifically, we are concerned by the effects of videoconferencing on assessing a witness's credibility. The assessment of testimonial evidence, particularly in emotionally charged cases, lies in the nuances and details. In our opinion, the virtual nature of testimony could affect the ability to do the assessment during an examination.

In an in-person trial, something as simple as a note passed to the lawyer, or a look aimed at a lawyer by the judge or a witness, can send cause the lawyer to veer off course and have a major impact on their strategy and the outcome of the trial. The fact that the parties and their representatives are in close proximity during the trial is not to be disregarded, from the perspective of lawyers who are carrying out their client's instructions. It can be hard to determine whether that proximity will be helpful or otherwise before the trial begins. We therefore recommend that the bill provide that all testimony be heard in person.

We are also concerned about lawyers' professional responsibility to their clients, for example when they are unable to communicate with the clients in real time in a way that preserves the confidentiality of their discussion.

Our last concern is that if the principle of trials by videoconference is incorporated into the bill it will be implemented at the expense of people who live in remote areas, for whom travel may be expensive and more complicated to undertake.

The measures introduced by the bill could therefore vary widely in their application in Quebec, where the availability of resources differs from one region to another. On that point, we would point to the issues associated with self-representation by accused persons who will be appearing virtually.

To summarize, we are afraid that the new status assigned to video appearance in the Code will institute a two-tier justice system, depending on the region, and compromise the lawyer-client relationship.

In addition, the new section of the Criminal Code states: — the court may allow or require an accused who is in custody and who has access to legal advice to appear by videoconference in any proceeding referred to in those sections, other than a part in which the evidence of a witness is taken.

The Barreau du Québec believes that this new section is problematic. We therefore recommend that this proposal be deleted. It is our opinion that the parties must always have the option of asking to proceed in person if they wish.

Denying accused persons who are in custody that option raises serious issues regarding the right to make full answer and defence and the right to a fair trial.

That is an overview of the main issues that the Barreau du Québec wanted to raise with the committee in its consultations on Bill S‑4. We hope that our presentation has contributed to your study, and we are now prepared to answer questions from committee members.

[The Chair, Liberal, Randeep Sarai]

I call this meeting to order.

Welcome to meeting number 44 of the House of Commons Standing Committee on Justice and Human Rights. Pursuant to the order of reference of November 24, 2022, the committee is meeting to begin its study on Bill S-4, an act to amend the Criminal Code and the Identification of Criminals Act and to make related amendments to other acts in relation to the COVID-19 response and other measures.

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 by using the Zoom application.

I would like to take a few moments for the benefit of the witnesses.

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're not speaking.

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

I remind everyone that all comments should be addressed through 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, and we appreciate your patience and understanding in this regard.

On our agenda today, we will proceed with Bill S-4. First we'll hear from the Barreau du Québec. Then, right afterward, per the motion adopted last Thursday, we'll do the clause-by-clause study. We also need to reserve a few minutes to complete our review, in camera, of the draft report on the subject matter of Bill C-28. As you all know, we have to report it before December 16.

Before Mr. Fortin asks me, I believe all the witnesses' mikes have been tested.

Judges Act

[Christine Normandin, Bloc, Saint-Jean, QC]

Madam Speaker, I understand that I have about 18 and a half minutes left. I will do my best, but I cannot promise that I will use up all of that time. I am just pointing that out for the benefit of the person who is speaking next.

Now that all the Christmas wishes and greetings have been sent, I want to come back to Bill C-9, which I spoke about in June, as I mentioned. It will come as no surprise to anyone that the Bloc Québécois will support this bill at third reading for a number of reasons. One of them is that the community has been calling for this bill for quite a long time. It has been calling for a review of the system for removing judges who engage in conduct unbecoming of the profession.

This bill will also help shorten the process and, incidentally, reduce the cost associated with assessing judicial misconduct, while still maintaining sufficient procedural equity that a judge who is facing sanctions can make their case and ultimately exercise their right to full answer and defence. In a way, this bill is streamlining a process that, in the past, was unfortunately inconsistently applied and abused, as in the case of Judge Girouard, who has been mentioned quite a bit in the House. It took nearly a decade to come to a final decision on the acts he was accused of.

It is worth mentioning that this bill introduces a mechanism to deal with less serious complaints that would not necessarily require removing a judge who has committed wrongdoing. This mechanism would still allow the judge to be punished for their actions. It is no longer a purely black-and-white system where there are only two possible outcomes to a sanction: either to reject the sanction outright or to remove the judge from office, which is the ultimate sanction for misconduct. Under the old law, there was no in-between. The new bill allows for a slightly fuller range of options, with different shades of grey—not that I am naming a particular book—in terms of the sanctions that can be imposed.

Realistically, we cannot expect Bill C‑9 to change much on a day-to-day basis, because not that many judges face possible sanctions, which is a good thing. My colleagues have said that about eight cases have come under the microscope. This is not something that happens very often.

However, the bill will affect the way people perceive the justice system. If a judge is put under the microscope, we can expect the process to elicit far less criticism and complaint from the public, because it will presumably be much more effective.

As I said, we will vote in favour of the bill. Based on what my colleagues have said, most if not all members of the House will do likewise. The only real criticism we heard during members' speeches had less to do with the content of the bill than with the timeline of its passage, which should take place in the coming days.

This is not our first time studying a bill like Bill C-9 in the House. We saw a previous version, Bill C-5, which ended up dying on the Order Paper because the government decided to call a basically useless election in August 2021, so again, this is not the first time we are indirectly talking about Bill C-9 in the House. However, there is so much consensus on it that, hopefully, this will be the last time.

Bill C-9 upholds a principle that is absolutely critical in our democracy, namely, the principle of security of tenure for judges. This principle is set out in section 99(1) of the Constitution. I think section 99(1) bears quoting.

It states:

...the judges of the superior courts shall hold office during good behaviour, but shall be removable by the Governor General on address of the Senate and House of Commons.

With respect to this aspect, Justice Dalphond, who is now a senator, spoke to Bill S‑5. He said the following:

By imposing a process that makes it the responsibility of judges, first and foremost, to deal with allegations of misconduct against a judge, the Judges Act protects judges from acts of intimidation or retaliation by the executive power or litigants. In addition, since the act provides for parliamentarians to exercise their constitutional power to remove a judge only after having received the report and recommendation of the council in this regard, Canadians can rest assured that this measure, intended to be exceptional, will only be taken when it is truly justified.

This essentially separates the different branches of democracy, namely the executive, legislative and judicial branches, by ensuring that if a judge is removed, it is not for purely political reasons, for example.

Although the current system for removing judges in cases of wrongdoing is recognized as one of the best in the world, there was room for improvement. I will name a few of the drawbacks that have been identified.

As I mentioned, the current process can be extremely long. Along the way, there is always the possibility of countless appeals and judicial reviews. Under the act, the review panel was seen as a sort of administrative tribunal that opened the door to using the regular court system, meaning filing an appeal, reviewing a decision or applying for a judicial review. As a result, some cases dragged on for over a decade.

One of the problems that was identified is that a judge who may be at fault could have a financial interest in dragging out the proceedings with stalling tactics, because the judge still gets paid while the process is underway. They can keep contributing to their retirement fund, so the benefits continue to add up. The judge therefore has an incentive to make sure the final decision on their alleged conduct does not come out too quickly.

That is something that has been corrected through proposed section 126 of the new bill. Proposed subsection 126(1) states:

For the purposes of calculating an annuity under Part I, if a full hearing panel decides that the removal from office of a judge who is the subject of a complaint is justified, the day after the day on which the judge is given notice of the full hearing panel's decision is the day to be used to determine the number of years the judge has been in judicial office and the salary annexed to the office held by the judge at the time of his or her resignation, removal or attaining the age of retirement unless

(a) the decision is set aside by a decision of the Supreme Court of Canada, or by the decision of an appeal panel if the appeal panel's decision is final;

(b) the Minister's response under subsection 140(1) provides that no action is to be taken to remove the judge from office; or

(c) the matter of removal of the judge from office is put to one or both Houses of Parliament and is rejected by either of them.

Should the complaint be rejected, the judge could retain all benefits associated with their office. From now on, pension and benefits accumulation ceases as of the day on which notice of the decision is given. That removes any incentive for a judge to draw out proceedings.

As I also mentioned, one of the benefits of the bill is that it now offers a wider range of sanctions than was available under the old act. The act did not, for example, allow for mandatory sanctions, so it made them seem like half-measures. The parties could make them mandatory by mutual agreement, but there was no real possibility of imposing anything. That is no longer the case. There is now a range of different measures.

Let me read some more of the bill. Proposed section 102 of the new bill provides as follows:

If the review panel does not refer the complaint to the Council under section 101, it may dismiss the complaint or take one or more of the following actions if it considers it appropriate to do so in the circumstances:

(a) issue a private or public expression of concern;

(b) issue a private or public warning;

(c) issue a private or public reprimand;

(d) order the judge to apologize, either privately or publicly, by whatever means the panel considers appropriate in the circumstances;

(e) order the judge to take specific measures, including attending counselling or a continuing education course;

(f) take any action that the panel considers to be equivalent to any of the actions referred to in paragraphs (a) to (e);

(g) with the consent of the judge, take any other action that the panel considers appropriate in the circumstances.

It uses the word “order”. That means it would be mandatory, and the panel has a lot of latitude.

There are plenty of measures that can be taken to improve the quality of a judge's work in the future, without having to resort to the extreme punishment of removing their right to sit on the bench. The bill improves what can be done within the system while also reducing the burden of what is required to make the review process work.

In the past, under the Judges Act, no fewer than 17 judges might be needed to convene a review panel to examine a case. There is currently a shortage of judges. The courts are operating at a slower pace. If a judge were to be accused of something, we cannot afford to take 17 judges out of the system when there is a shortage everywhere.

Under the new version of the act, a panel can be formed with slightly fewer judges than what was required in the past. The bill also creates an internal appeal process, which will limit reliance on external courts and therefore limit the possibility of invoking the legal system for disciplinary matters involving judges.

I am making an aside on this aspect because the issue of tying up courts and judges cannot be solved by Bill C‑9 alone. We had a discussion about Bill S‑4 and the possibility of making greater use of virtual tools to hear cases. This debate may continue in the days to come. That would help, but even if we add the option of virtual hearings, if there are no judges to hold these hearings, it does not matter that platforms like Zoom are available because the system will not work.

That is why, in addition to Bills C‑9 and S‑4, it is important that the Minister of Justice quickly appoint judges to fill vacancies. Currently, there are nine vacancies. The chief justice of the Quebec Superior Court is even recommending that a dozen judges be added to those currently sitting. This would increase the minimum number of justices that can sit on the Quebec Superior Court. Let us hope that this message will be heard by the Minister of Justice.

Basically, Bill C‑9 is about improving people's trust in the judicial system. However, as I said, it may be relatively limited in scope, because most people will not read the contents of Bill C‑9. If a judge were to commit a wrongful act, people might be interested in this new process that exists to reprimand judges.

Beyond the possibility of reprimanding a judge who has already been appointed, if we really want to improve public trust in the system, we must also address the issue of judicial appointments. Some work has been done. The Liberals have mentioned that they are going to abandon the infamous Liberalist, but that may not be enough. The process is still potentially partisan. The power to select and recommend who will be appointed as a judge is still in the hands of the executive branch of government.

That is why the Bloc Québécois recommends creating a truly all-party committee tasked with evaluating candidates for judicial positions in courts under federal jurisdiction, such as superior courts.

This is what Albania did in hopes of joining the EU. It had to change a lot of its judicial practices to meet EU standards and bolster public confidence in its institutions.

At present, Albania's justice minister has no power over judicial appointments. An independent committee is in charge. The justice minister's primary responsibility is to oversee sound administration of the courts. The minister monitors statistics to ensure that hearings are progressing without wait lists or undue delays, but is not actually responsible for appointing judges. That allows for true separation between the powers of the executive and the judiciary. The House may consider following suit as it develops a different judicial appointment system.

It is on this wish that I will end my speech. Bill C‑9 is a good thing. It is an improvement that has long been called for. It may have taken a long time for it to come to fruition, but we commend the initiative nonetheless. There is still work to be done on the judiciary. The Bloc Québécois will always be a very approachable partner when it comes to improving the legal system. I think that begins with a review of the judicial appointment system.

Business of the House

[Mark Holland, Liberal, Leader of the Government in the House of Commons]

Mr. Speaker, that is a good question. We will continue our discussions about when the House will adjourn for Christmas. This afternoon, we will continue debate on the Conservative Party's opposition day motion.

After that, we will vote on the adoption of the supply for the current period. Tomorrow, we will be begin debate at report stage of third reading of Bill C-9, the judges bill.

Next week priority will be given to Bill S-8, the sanctions legislation; Bill S-4, COVID-19 justice measures legislation; and Bill C-18, the online news act.