Justice Committee on Nov. 17th, 2022

[Élisabeth Brière, Liberal, Sherbrooke, QC]

Is my time up?

[The Chair, Liberal, Randeep Sarai]

Thank you, Madame Brière.

Next we'll go to Monsieur Fortin for six minutes.

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

Thank you, Mr. Chair.

Thank you for being with us today, Minister.

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

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

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

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

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

I'm firmly of that view. I think that's what we did when we made changes to the system. We do consider professional training and experience, and judgment as well. We look at these individuals' engagement in society, their careers and other necessary qualities, such as wisdom and maturity. These are qualities that we look for.

Furthermore, in the wake of former Bill C‑3, we look at judges' training. That's now a prerequisite for candidates. We did it through contracts. It should also improve the quality of decisions.

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

Thank you, Minister.

What can we do, specifically?

I think the selection committee has already resolved the academic qualifications issue. Someone who hasn't completed the required studies clearly can't be a candidate.

How can we actually identify a candidate's moral values and potential conduct in a given situation?

Have you considered the possibility of validating candidates' moral values, in a manner consistent with charter privacy provisions?

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

As far as possible, that's what we do, in a manner consistent with privacy legislation in Canada. The advisory committees ask questions and conduct research. We also speak regularly with other judges and lawyers who have a certain amount of experience. There's no set list, but we look at candidates' experience to see if some of them can discuss their moral values.

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

Thank you, Minister.

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

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

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

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

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

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

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

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

[Patrick Xavier, Acting Deputy Director and Senior Counsel, Judicial Affairs Section, Public Law and Legislative Services Sector, Department of Justice]

Yes, of course.

Could I ask you to repeat your question, Mr. Fortin?

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

I'll do it quickly because I barely have 30 seconds left.

Would it be a good idea to introduce a mediation process?

For example, if we request a trial in Superior Court or the Court of Quebec, we'll be asked, even before the hearing date's set, if we've gone through mediation or at least tried it.

To avoid endless proceedings, as in Justice Girouard's case, I wonder if the mediation process would have made it possible to agree with Justice Girouard on various sanctions or ways of resolving the matter.

[Patrick Xavier]

It's hard to say in Justice Girouard's case. Justice Girouard was accused of certain offences, and I don't know whether the charges laid against him could have been settled through mediation.

[The Chair, Liberal, Randeep Sarai]

Thank you, Mr. Xavier—

[Patrick Xavier]

As the minister indicated, the review panel, which is the first step in the process, can definitely perform a mediation function.

[The Chair, Liberal, Randeep Sarai]

Thank you. The time is up.

Thank you, Monsieur Fortin.

We'll go to Mr. Garrison for six minutes.

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

Thank you very much, Mr. Chair.

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

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

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

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

Thank you, Mr. Garrison, for that question.

The process will result in more published decisions, and certainly anything that the minister has to do at the end of it will also be public. I think that's a better process than exists right now. To my understanding, the proceedings themselves will remain confidential, but again, I think we're in a better place than we are currently.

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

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

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

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

I think the short answer to that is yes, particularly because there is a clear set of stages to the process. The complainant will know at every stage where the process is, and will receive more timely answers because of it.

There's a first vetting that takes place in order to make sure that frivolous or abusive complaints are not allowed into the system. There's an initial examination of the complaint, it moves to a committee if it gets past that, and then there's the formal process. At each stage, there will be a response available to the complainant. That, in and of itself, presents, I think, a much better set of transparent steps that allow for greater satisfaction on the part of complainants.

There's also the fact that, as you've pointed out, on more minor transgressions that I suppose are correctable in some sense, there isn't an all-or-nothing response anymore.

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

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

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

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

My understanding is that the complainant lodges a written complaint, but then the complainant, I believe, would have the opportunity to restate that, at least in writing, if there is a formal hearing on the case. I can also get back to you with a better answer, Mr. Garrison.

I'm sorry. I believe Patrick can answer that.

[Patrick Xavier]

I'll help a bit with that.

It's important to appreciate that the Canadian Judicial Council has a duty of procedural fairness toward the complainant, and the heart of that duty is precisely to communicate the outcome of proceedings to the complainant.

The bill does not address that head on, because the duty of procedural fairness is variable. It will vary depending on the context, who the complainant is and what the circumstances of the complaint are, so it will be for the council to set out how it will deal with complaints in policies and procedures. It's best to leave that for policies and procedures, because it may need to be amended from time to time. There is no one-size-fits-all rule that could easily be put into that act.

How to deal with complainants will be very much for the council to set out in its policies and procedures. I'm sure the council will be pleased to speak to that when it appears before you.

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

What I'm trying to get at, again, is that some complainants have felt that they might have additional things to say or additional information to provide once they've seen the initial determination or consideration of the complaint, and they feel there's currently no ability to do that.

I wonder whether that is covered by what you're talking about as the procedural fairness aspects.

[Patrick Xavier]

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

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

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

[The Chair, Liberal, Randeep Sarai]

Thank you, Mr. Xavier.

Thank you, Mr. Garrison.

We'll go to our next round, starting with Mr. Caputo for five minutes.

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

Thank you, Mr. Chair.

Thank you, Minister. It's always a pleasure to have you here before the committee.

I have to ask a bit of a selfish question, following up from the last time you were here. I asked about Bill C‑299, which would raise maximum sentences to life imprisonment for sexual offenders.

I'm wondering if you've had time to contemplate that and whether it's something you might be prepared to support.