Thank you, Mr. Chair.
It's always a pleasure to be with you. Most of you are participating in the meeting in person. Mr. Garrison and Mr. McDonald are participating virtually.
I am accompanied by Nancy Othmer, Patrick Xavier and Anna Dekker, my colleagues from the Department of Justice, who will be helping me answer any technical questions.
As I said, Mr. Chair, it's an honour for me to be here today to speak to you about Bill C-9, an act to amend the Judges Act.
I will take this opportunity to thank all of you for the unanimous support for this bill at second reading.
As you know, this bill reforms the process used to address complaints against federally appointed judges. The soundness and effectiveness of the judicial conduct review process can have a significant impact on the independence of the judiciary. This legislation will make the judicial conduct review process more efficient and more cost-effective.
This legislation is the fruit of years of careful study and analysis, including consultations between the legal community and the general public, and extensive dialogue with the Canadian Judicial Council and the Canadian Superior Courts Judges Association. In my view, Bill C-9 sets out what would become a world-leading judicial conduct review process and one that will serve Canadians exceptionally well for years to come.
We need a judiciary that is strongly independent, one that is able to render judgments without fear of reprisal. At the same time, Canadians rightly demand to hold judges accountable to a high standard of professionalism.
In 1971, Parliament, through the Judges Act, assigned responsibility for handling complaints against judges to the Canadian Judicial Council, or the “CJC”. The Judges Act sets out the key elements of a process that served Canadians well for decades. However, shortcomings in the legislative framework have become more and more pronounced over the last few years, prompting growing calls for Parliament to act. This includes calls from the CJC itself.
In developing reforms, the government carefully considered feedback from the general public received through an online survey as well as from a number of key stakeholders, including the Canadian Bar Association, the Federation of Law Societies and provinces and territories.
We listened carefully. Our focus was to craft a process that the public would have confidence in, one that is rigorous and fair, yet timely and effective.
Constitutional principles dictate that a judge cannot be removed from office without having a judge-led hearing into their conduct. As I noted, Parliament has assigned this important task to the CJC. In light of this, my department's officials engaged in sustained discussions with the CJC to ensure that this legislative proposal could benefit from the council's 50-year experience running the judicial conduct review process. Departmental officials also engaged with the Canadian Superior Court Judges Association to understand its concerns regarding process reform.
I take this opportunity to thank both the CJC and the association for these discussions and their commitment to serving Canadians.
I wish here to highlight two main areas of particular concern. The first is efficiency. As it stands, the process takes too long and is too expensive. Of course, the Constitution demands rigour and sensitivity in the handling of complaints against judges. Yet, when the resolution of complaints at times stretches on for years on end, and at great expense to the taxpayer, Canadians rightly ask whether there is a better way.
This is perhaps best underscored by the multiplication of judicial reviews that we have witnessed over the last few years with respect to certain complaints, creating the perception that judges launch these proceedings to effect delay rather than to pursue legitimate legal interests. Bill C‑9 responds directly to these concerns by making the process much more efficient.
A second shortcoming involves the all-or-nothing nature of the existing process, which is designed to answer a single question: Does the complaint warrant the judge's removal from office? No other sanction is available. This fact colours every step in the process. This risks unfairness to judges subject to complaints, who may be subject to a full-scale inquiry and its proceedings for conduct that would more appropriately be addressed through lesser sanctions. Further, this risks undermining the public's trust in the process. Members of the public may be perplexed and rightly dissatisfied when complaints are dismissed despite problematic conduct because the conduct in question did not reach the high threshold of justifying removal from office.
Bill C-9 addresses this concern by introducing, for the first time, the ability to impose sanctions for misconduct that do not warrant removal from office but that nonetheless demand some form of remedy and accountability. These could include, for example, mandating training sessions.
I do not have time in these remarks to discuss all of the improvements proposed by the bill. In the time I have left, let me highlight three key improvements.
First, greater transparency through greater participation of lay members. The current process has a limited role for lay members, which, in this context, refers to individuals who are not judges or lawyers. There is currently one lay member on the five-member review panels.
Bill C‑9 changes this. There would continue to be one lay member on review panels, but these review panels would be more efficient—having only three members and being empowered to impose sanctions for any misconduct not serious enough to warrant removal from office. Second, hearing panels established to conduct public hearings on whether a judge should be removed from office would now include a lay member. These improvements directly address the system's current shortcomings, increase efficiency, and allow for more appropriate and targeted accountability.
The second point to highlight is how Bill C-9 streamlines the appeal process. The current process provides too many opportunities for judges subject to complaints to seek judicial review of decisions made by the council at different stages in the process. This is costly and results in excessive delay and undermines public confidence. Further, after the inquiry committee has issued its recommendation on whether a judge should be removed from office, the current process requires review of this decision by what is termed “council of the whole”, where quorum requires participation by at least 17 CJC members. This body's powers are unclear, and legal decision-making by a body of this size has proven challenging.
To address both of these concerns, Bill C-9 would introduce an appeal mechanism internal to the judicial conduct process. An appeal panel made up of three CJC members and two puisne judges would have broad powers to remedy any shortcomings in the process. The only recourse available to the judge wishing to challenge the decision of an appeal panel would be to seek leave to appeal directly to the Supreme Court of Canada. Entrusting process oversight to the Supreme Court will reinforce public confidence and avoid lengthy judicial review proceedings through several levels of court. This will save time and costs while still providing robust fairness for judges subject to complaints.
The third and final point to highlight relates to the costs associated with the process. The day‑to‑day costs of handling complaints are fairly consistent and predictable, and would continue to be so under the new process. However, the costs associated with inquiry committees are highly variable and unpredictable, given the significant year‑to‑year variability in the number of public inquiries conducted. As a result, administrators must rely on complex mechanisms to seek necessary funding on an ad hoc basis. This is a longstanding problem that Bill C‑9 would rectify by introducing a statutory appropriation to provide a stable funding mechanism for the highly variable portion of the process' costs associated with public hearings.
This is not only a sound practical solution, but is also justified by the fact that these public hearings are constitutionally required. To ensure sound stewardship of these funds, the bill would introduce several measures, including requiring that an independent review be completed every five years into all costs paid through the statutory appropriation. The findings and recommendations of this review would be made public.
I thank you for your time and attention today. I wholeheartedly recommend this bill, knowing that it will profoundly improve the judicial conduct review process to the benefit of Canadians.
I look forward to your questions after having had a glass of water.
