Justice Committee on Nov. 17th, 2022

[Yasir Naqvi, Liberal, Ottawa Centre, ON]

Thank you.

[The Chair, Liberal, Randeep Sarai]

Thank you, Mr. Naqvi.

Next we'll go to Monsieur Fortin for two and a half minutes.

[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?

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

Thank you for that question, Mr. Fortin.

That's certainly a possibility.

Before turning the floor over to Mr. Xavier, I would like to remind you that we have resolved the matter of pension plans. The rights of an offending judge will be suspended.

I think the salary of an offending judge should be frozen in this case. I'll let Mr. Xavier answer that question, but I believe the Canadian Judicial Council, the CJC, can impose monetary penalties.

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

I'd like to go back to the matter of fees.

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

Yes, I'll let Mr. Xavier answer that question.

[The Chair, Liberal, Randeep Sarai]

Be very quick, Mr. Xavier.

[Patrick Xavier]

The matter of fees is somewhat complicated. We could discuss the decision of the Federal Court of Appeal in Bourbonnais v. Canada later. According to that decision, a judge subject to disciplinary proceedings is entitled to have his fees paid by the government. However, it isn't entirely clear whether it's subsequently possible to compel the judge to repay those amounts.

That's the short answer.

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

Thank you.

[The Chair, Liberal, Randeep Sarai]

Thank you, Mr. Fortin.

Last, we have Mr. Garrison for two and a half minutes.

[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?

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

Thanks, Mr. Garrison, for the question.

Indeed, we're hoping that today is a historic day. We're hoping that the Senate does get to a vote on Bill C‑5 later this evening.

I think it will have a positive impact. The visible presence of laypersons within the system leads to potentially greater diversity as well as increasing the diversity within the judiciary and in particular the Canadian Judicial Council. We appointed recently the first indigenous chief justice in Canada in addition to the first indigenous member of the Supreme Court. The first indigenous member from the Northwest Territories, the first chief justice, will sit as part of the Canadian Judicial Council, part of the CJC, which is critically important.

We hope there will be others representing the face of Canada, if you will, the diversity of Canada. All of that helps, in its own way, in fighting overrepresentation, and it certainly helps increase the legitimacy of the Canadian judicial system.

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

Thank you, Mr. Minister. I do acknowledge that the appointment process has resulted in an increasingly diverse Canadian judiciary, but it's a slow process that takes time to make sure that the judiciary actually represents Canadians as a whole.

Once again, I thank you for being here today.

I have no further questions.

[The Chair, Liberal, Randeep Sarai]

Thank you, Mr. Garrison.

Thank you, Minister Lametti. We thank you for your presence here today on this very important piece of legislation.

We will now let you go while we suspend for a few minutes.

[The Chair, Liberal, Randeep Sarai]

I call the meeting back to order. For the sake of time, we're going to resume.

We will begin by allowing Mr. Xavier to say a few words for about five minutes to tell us about the steps on this bill, and then we'll resume the questions.

It's over to you, Mr. Xavier.

[Nancy Othmer, Assistant Deputy Minister, Public Law and Legislative Services Sector, Department of Justice]

Good afternoon, Chair and members.

I thought it might be helpful if Patrick, who is our expert on this particular file, provided you with the state of the legislation right now and how it works, and a little overview of what we're proposing, in case that's helpful. We don't have opening statements, but I thought we could start with that, if that's okay.

[Patrick Xavier]

Mr. Chair, I've become aware that you have a sign that indicates when someone runs out of time, so I should mention at the beginning that I'm mostly blind. I can't see that far, so my colleague will let me know if ever that becomes an issue.

[The Chair, Liberal, Randeep Sarai]

I apologize—

[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.

[The Chair, Liberal, Randeep Sarai]

Thank you, Mr. Xavier. That was one of the best Coles Notes version of a bill I've heard. I think every member understood how the process works. That was very helpful.

I'll begin with Mr. Moore for six minutes.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you, Mr. Chair.

Thank you to our witnesses for being here today to discuss this bill. It's a bill that we support.

We've already discussed the limitations of the current process and how it's restrictive. The new process allows for sanctions short of removal.

I want to get your thoughts first on the analysis of what you contemplate those sanctions looking like.

Second, without revisiting this, are there judges under the current system who have been dismissed when a sanction would have been more appropriate? Are there going to be judges in the future that may be.... I think, if you're in the position of a judge, any kind of sanction is huge. It's huge to have that on your record, to have a sanction against you.

Is the sanction maybe an easy way out to deal with a case and say, "We're not going to remove this judge, but let's have them do some kind of training"? The sanction, obviously, is a severe issue in and of itself to a sitting judge.

How do you ensure that we get that balance right between those who should be removed and those who should be sanctioned? Do you think there is anything that needs to be tightened up to avoid misuse of the sanction?

[Patrick Xavier]

That's an excellent question, and it's a difficult balance to strike. The bill tries to strike that balance by focusing on sanctions that seem appropriate, that seem compatible with a judge's resuming their full duties with the confidence of the public. You'll notice that some sanctions that you might find in other workplaces, like suspension from duties for a time or suspension without pay, are not really included. There is some question whether some of them might be fully compatible with judicial independence—but also, if you include those kinds of sanctions, you might be implicitly raising the bar for removal.

If a judge has done something so serious that you need to dock their pay, we're probably in the realm of something serious enough that removal is warranted.

As to where to draw the line so that you don't either overshoot or undershoot the mark, the Supreme Court of Canada has set out in its two main decisions on judicial conduct, which are referenced in some of your material, Therrien and Moreau-Bérubé, that the bar for judicial conduct is very high. Judges are expected to be a cut above in how they conduct themselves.

With that in mind, the list of sanctions seems like a list that is appropriate so that a judge is allowed to resume their duties with the confidence of the public. It's in line with the sanctions that you will find in other regimes, including in the provinces, as well as in countries whose legal systems and judiciaries are very similar to ours, like the U.K., New Zealand, the U.S. federal courts and Australia.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you for that.

The minister mentioned the international experience. When looking at our process that has existed for some time, we're looking for a new way forward. What did you benchmark and what did you see as the international gold standard? Are there key differences that you would point out for the Canadian context?

[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.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you.