Justice Committee on Nov. 17th, 2022

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

It's still under our contemplation.

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

I promise to keep asking you that every time you are here.

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

I suspect you will.

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

Minister, I'm going to take a little bit of a circuitous route, but I promise, if I could have the chair's indulgence, to bring this back to the bill. I'm going to give you a factual scenario that came up in case law in 2021. I want to get your comment on it. Then I will bring it back to this bill. It's a case that troubled me.

Minister, I know you can't comment on specific cases, but what I'm asking you to do is comment on the legislative framework that permitted the decision, in a case called P.R.J., by the supreme court in my home province of British Columbia. It was a case in which a mother offended against her daughter sexually. The daughter was seven or eight years old. There were two charges—invitation to sexual touching and sexual interference. The case went to trial, meaning that the seven- or eight-year-old had to testify. The mother was ultimately convicted. The sentence was a 23-month conditional sentence order after trial, with 12 months of house arrest, for a sexual offence against one's child.

Minister, do you have any comment on the legislative framework that permitted this?

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

Look, this is a horrific set of facts as you have described them. There is absolutely no question about that. I think we all share the horror of this kind of crime.

There are a number of different procedures and provisions in place. For example, I now have visited a number of child advocacy centres and have funded a number of child advocacy centres across Canada so that the children and families who go through this will be better supported as they do.

As to the sentence, if that's what you are referring to, in the common law system we best leave that up to the judge, with the sentencing guidelines and rules of thumb and seeing the people before them, which I think is the great advantage of our criminal justice system based on common law traditions. I won't comment on the sentence itself, but we are trying to build supports into the system so that people who are victims of these horrific acts are better supported as they go through the process. We'll continue to look for ways to improve that.

[Yasir Naqvi, Liberal, Ottawa Centre, ON]

I have a point of order, Chair.

[The Chair, Liberal, Randeep Sarai]

Yes, Mr. Naqvi.

[Yasir Naqvi, Liberal, Ottawa Centre, ON]

Chair, I'm really concerned. This is the second time now I've noticed that members of the Conservative Party are not asking the minister a question directly on Bill C-9, which deals with judicial misconduct. They continue to bring up very specific cases and ask the minister to opine on them when they have no relation whatsoever to the matters covered under Bill C-9.

I let Mr. Brock go. I was trying to give him a little bit of latitude to see if he could bring it back to the bill. He failed to do so. Mr. Caputo promised that he would do so in this instance. He has not done so.

Through you, Chair, I really urge members opposite to focus on the bill. We have an opportunity here, with the minister present, to give us responses on this particular bill. I think it is highly unfair that we are asking questions that are outside the purview of the work we are doing right now.

Thank you.

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

Mr. Chair, may I respond, please?

[The Chair, Liberal, Randeep Sarai]

Yes.

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

Thank you.

I didn't ask the minister to comment on the specific case. I asked him to comment on the legislative framework. But we won't split hairs about that—

[Yasir Naqvi, Liberal, Ottawa Centre, ON]

It was not related to Bill C-9.

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

I did not interrupt you, Mr. Naqvi. I would appreciate the same courtesy. Thank you.

Secondly, I said that my follow-up question, which I am happy to disclose right now, relates to Bill C-9, and it relates to that factual matrix.

If I'm given the opportunity to do so, with the full time that I have, I am happy to ask that question.

[The Chair, Liberal, Randeep Sarai]

Thank you, Mr. Caputo, and thank you, Mr. Naqvi.

I will remind all members to keep it in line with the study, which is Bill C-9.

I gave a lot of latitude on that. You had promised at the outset of your questioning that you were going to bring it back to Bill C-9, so I would ask that you bring it back to Bill C-9. This is an important and very timely meeting, so we should keep it focused on that.

I'll resume your time.

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

May I ask, Mr. Chair, how much time I have left, please?

[The Chair, Liberal, Randeep Sarai]

You have a minute and a half left.

[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?

[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.

[The Chair, Liberal, Randeep Sarai]

Thank you.

Thank you, Mr. Caputo.

It's over to you, Mr. Naqvi, for five minutes.

[Yasir Naqvi, Liberal, Ottawa Centre, ON]

Thank you very much, Mr. Chair.

Welcome, Attorney General. It's always good to see you back here.

Let's start with the existing process that's available to Canadians when it comes to judicial review in this context.

What are some of the challenges that exist in the current system? Can you, maybe in the second part, answer how this bill tries, in your view, to address those in a meaningful way so that Canadians feel they have a more effective recourse available if they face judicial misconduct?

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

Thank you, Mr. Naqvi, for the question. It's important.

I'll use the Girouard case as an example, because it's fresh in many people's minds.

There is a process, again, that involves a petition on the part of a letter or a complaint on the part of a citizen. It goes to the executive director of the Canadian Judicial Council. It is then screened by a member and it goes to a review panel. From a review panel, it can go to an inquiry committee and then to this nebulous council of the whole.

At every point in the Girouard case, after every decision, there was a lateral move to seek judicial review at the federal court. It would come back to the process and go to the next stage, and the person lost. It would go again, across the federal court and at the next stage, the person lost. It eventually went all the way up to a leave to appeal to the Supreme Court, which was rejected, thankfully. Only then did the process end.

All of these lateral proceedings were because it wasn't clear that the review mechanism didn't prohibit these kinds of processes seeking judicial review.

What we've done in the new process is establish a line, so you're effectively appealing the substance of the decision with appropriate safeguards and an appropriate chance to make your case on procedural and substantive grounds. However, it doesn't allow constant judicial review of the federal court and, eventually, to the Supreme Court by appeal, if it is merited.

There is an overarching guarantee of safety, if you will, for all participants by the presence of the Supreme Court at the end of the day.

[Yasir Naqvi, Liberal, Ottawa Centre, ON]

Thank you for that.

My supplementary question to that would be whether you and the Department of Justice are comfortable from the perspective of natural justice and procedural fairness that this new mechanism still protects those important rights of participants versus the mechanism within the current system, where they could engage in those lateral steps.

[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.

[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]

It's definitely less costly and more efficient, because the lines are better delineated and it's vertical now. You're basically moving up the system with your appeals, and you can't keep going sideways all the time, which reduces costs and increases transparency.

It's also true that, because of the formal role of laypersons within the system, there is, I think, a better sense of legitimacy, from the perspective of a layperson who might be a complainant, to know that there are going to be other laypersons within the system who are also going to have a look at what's happening. It's not just judges judging themselves but also laypersons and lawyers. That will also ensure diversity within the system, which is also critically important for the legitimacy of the system.