Evidence of meeting #37 for Justice and Human Rights in the 44th Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was process.
A recording is available from Parliament.
4:45 p.m.
Liberal
4:45 p.m.
Liberal
Yasir Naqvi Liberal Ottawa Centre, ON
Thank you very much, Chair.
Thank you to the officials for being here
I want to pick up on the conversation I was having with the minister in relation to the current system and his concern about these lateral steps that people can take throughout the system in terms of judicial reviews and how we account for procedural fairness and natural justice as it relates to the new process.
Can you walk us through the analysis you may have done in ensuring that, if this bill is passed, we will not run into an issue around breach of procedural fairness and natural justice?
4:45 p.m.
Acting Deputy Director and Senior Counsel, Judicial Affairs Section, Public Law and Legislative Services Sector, Department of Justice
Do you mean toward the judge, the complainant or both?
4:45 p.m.
Acting Deputy Director and Senior Counsel, Judicial Affairs Section, Public Law and Legislative Services Sector, Department of Justice
As I said earlier in response to a question when the minister was here, the duty of procedural fairness that the council has toward the complainant is something that this bill leaves for the council to do via policies and procedures, because the universe of possible complainants is extremely large. When the Camp matter broke, there were hundreds of complaints. All of those people who had read about it in the newspaper were complainants. In a case like that, where the victim of the judge's misconduct also complains, that victim is in a very different position. The council might, or should, really, treat that victim of the misconduct differently from the average person who has read about it in the newspaper.
It's difficult to come up with a one-size-fits-all rule that can fit in an act. Policies amendable from time to time are probably the better way to go. That's why this act leaves that up to the council.
In terms of the procedural safeguards available for judges, the judge has paid counsel. We covered that earlier. That's a very important procedural safeguard. The judge has the right to a hearing at which they can test and adduce evidence before they can be removed. That's the basic minimum that the Supreme Court has said is necessary in order to satisfy judicial independence requirements.
The judge has a full right of appeal. We've created a right of appeal that is not restricted. It's not an appeal on a question of law alone. It's a plenary right of appeal to an appeal panel that has all the powers of a provincial court of appeal. Then there's the right of appeal with leave to the Supreme Court of Canada, as you might have from any provincial court of appeal. Again, that right of appeal is plenary. There are no limits on it.
Those are probably the most important procedural safeguards that help ensure that the process is procedurally fair.
The only other one I could mention is the reduced hearing panel. Review panels will operate by written submissions only. That will be fair for judges in the vast majority of cases, but there may be the odd case where the circumstances might give the judge a right to a hearing, in which case they can basically ask for a reduced hearing panel. The reduced hearing panel will hear the complaint de novo. Whatever the review panel did is not going to have an influence on the reduced hearing panel. The reduced hearing panel can come to its own conclusion on that complaint. Again, the decision of that reduced hearing panel will be appealable to an appeal panel as a plenary right of appeal.
I think those are probably the most salient procedural fairness safeguards.
4:50 p.m.
Liberal
Yasir Naqvi Liberal Ottawa Centre, ON
Thank you. I sincerely appreciate that thorough response.
I'm assuming that the rules of procedure as they relate to this entire new mechanism will be developed by CJC. In this bill, are there some clear markers that have been outlined that CJC shall follow as they're developing their rules of procedure?
4:50 p.m.
Acting Deputy Director and Senior Counsel, Judicial Affairs Section, Public Law and Legislative Services Sector, Department of Justice
Obviously, the rules of procedures will have to be consistent with anything that's in the bill, but there's no empowering provision that specifically targets the rules. Administrative bodies always have the ability to set rules that govern their own procedures, and it's pursuant to that implied power that the CJC will develop rules of procedure for the various stages of the process.
4:50 p.m.
Liberal
Yasir Naqvi Liberal Ottawa Centre, ON
Will the process to appoint the layperson in this process be developed by the Canadian Judicial Council as well?
4:50 p.m.
Acting Deputy Director and Senior Counsel, Judicial Affairs Section, Public Law and Legislative Services Sector, Department of Justice
Yes, the criteria will be set by the council, and the council will determine how the laypersons are selected and so on, yes.
4:50 p.m.
Liberal
Yasir Naqvi Liberal Ottawa Centre, ON
In terms of term limit or the duration of that layperson to serve...?
4:50 p.m.
Acting Deputy Director and Senior Counsel, Judicial Affairs Section, Public Law and Legislative Services Sector, Department of Justice
The term limit is four years, and I believe that's in the bill somewhere in proposed sections 81 to 85. It's in the 80s. Proposed sections 81 to 85, I believe, relate to rosters, so somewhere in there, there is the limit of four years for both laypersons on the lay roster and for judges who are not council members on the judges roster.
4:50 p.m.
Acting Deputy Director and Senior Counsel, Judicial Affairs Section, Public Law and Legislative Services Sector, Department of Justice
Ms. Othmer has just reminded me that there is also the exhortation that the roster will have to reflect the diversity of Canadians, so that's, I believe, proposed section 84. The council will be required to keep that in mind whenever it develops the roster.
4:50 p.m.
Liberal
The Chair Liberal Randeep Sarai
Thank you, Mr. Naqvi.
Next we'll go to Monsieur Fortin for six minutes.
4:50 p.m.
Bloc
Rhéal Fortin Bloc Rivière-du-Nord, QC
Thank you, Mr. Chair.
Thanks for being with us, Mr. Xavier, Ms. Dekker and Ms. Othmer.
Earlier I discussed the possibility of mediation with the minister. I agree it might be appropriate in some cases but not in others.
Many steps must be taken after a complaint is filed against a judge and before a potential sanction is imposed. Wouldn't it be appropriate to provide for a frank discussion with the judge in question at some point? A representative of the Department of Justice and another from the Canadian Judicial Council could take part in that discussion to seek a solution to the situation concerned by the complaint.
I can see that it would probably be hard to convince a judge to agree to a potential sanction. However, we can set aside sanctions for the moment and focus solely on consequences, taking the repayment of fees as an example. As we know, fees are a heavy cost. The judicial system loses considerable credibility in the public's view when it learns from the newspapers that hundreds of thousands of dollars are being spent to defend an individual who is rightly accused of certain conduct and may potentially be removed. It's a situation that shocks many people.
Could we legislate certain steps that would enable us to sit down and discuss consequences and potential sanctions? The idea would be to try to determine an outcome so that the judge in question will agree to put an end to the discussion and perhaps waive certain privileges that are granted under the act and that judges may exercise for the purpose of challenging or opposing complaints filed against them.
Isn't there a process that could be applied?
4:50 p.m.
Acting Deputy Director and Senior Counsel, Judicial Affairs Section, Public Law and Legislative Services Sector, Department of Justice
As far as I know, that's currently included in the first part of the process. The council member who takes charge of the complaint at the start of the process first attempts mediation as a remedy. That's probably also what the review panel will do. This is a question that I encourage you to put to the council. It's in a very good position to address what the review panel will put into practice. That, for example, could be included in the rules we discussed a little earlier, the procedural rules that the council might put into practice at the review panel stage.
The process becomes slightly more contradictory once a complaint is laid before the review panel and a public hearing is held. The situation, which slightly more resembles that of a court, then becomes more difficult, not just because the process is contradictory, but also because the misconduct is serious. In the circumstances, the misconduct could be serious enough to warrant removal, in which case a mediation process might perhaps be less helpful. However, mediation could be part of the review panel process.
4:55 p.m.
Bloc
Rhéal Fortin Bloc Rivière-du-Nord, QC
Correct me if I'm wrong, but a judge currently can't be compelled to repay lawyer's fees in whole or in part.
4:55 p.m.
Acting Deputy Director and Senior Counsel, Judicial Affairs Section, Public Law and Legislative Services Sector, Department of Justice
That's true. It's not possible. On that subject, see the Federal Court of Appeal's decision in Bourbonnais v. Canada in your documents. The reference is “Bourbonnais v. Canada (A.G.), 2006 FCA 62”. Writing for the court, Judge Nadon held that judicial independence provided the judge with a right to a lawyer paid by the government for the purposes of the disciplinary process.
It isn't at all clear from that decision that legal cost indemnification would ultimately be compatible with judicial independence. There's no clear answer to that question.
4:55 p.m.
Bloc
Rhéal Fortin Bloc Rivière-du-Nord, QC
I quite agree with you. That's also my understanding, but I wonder if Bill C‑9 could have been an opportunity to clarify those issues.
Isn't it possible to include that? I don't mean an automatic measure but at least the possibility for the Canadian Judicial Council to require full or partial reimbursement when the judge is found guilty. The idea is to ensure that the judge doesn't get the impression in a mediation process that this is an all-you-can-eat buffet. It's pretty hard to convince someone to accept a settlement when he knows from the outset that he can drag the process out and won't have to pay fees because they'll be reimbursed by the government.
It seems to me we may be passing up an opportunity to acquire an instrument for encouraging parties to settle situations of this kind. Haven't you considered it?
As you said earlier, I know this isn't clear.
4:55 p.m.
Acting Deputy Director and Senior Counsel, Judicial Affairs Section, Public Law and Legislative Services Sector, Department of Justice
We think that the bill, as drafted, reflects the requirements stemming from the Federal Court of Appeal's decision in Bourbonnais v. Canada.
As we said a bit earlier, the process includes much shorter appeal proceedings. Lawyers’ fees will therefore be much lower than they are right now.
4:55 p.m.
Liberal
The Chair Liberal Randeep Sarai
Thank you, Monsieur Fortin.
Now we'll go to Mr. Garrison for six minutes.
4:55 p.m.
NDP
Randall Garrison NDP Esquimalt—Saanich—Sooke, BC
Thank you very much, Mr. Chair. I do want to assure you and the translators that it's my hope to always be present in person for the rest of the session.
I want to thank the officials for sticking with us for the second round.
I thought the opening statement, if I can call it that, was very useful. I want to follow up on that by asking some very specific questions.
At what stages will the complainants be notified, and what's the extent of notification through this process? Secondly, is there any opportunity for them to provide additional evidence or arguments, having seen an initial determination, say, at the review process?
4:55 p.m.
Acting Deputy Director and Senior Counsel, Judicial Affairs Section, Public Law and Legislative Services Sector, Department of Justice
Thank you, Mr. Garrison.
As I said earlier, unfortunately those are difficult questions to answer based on Bill C-9 alone, because that will be part of what the CJC will have to provide for in its policies outlining how it will deal with complainants under Bill C-9.
Currently, when the CJC has carriage of a complaint and asks the judge for submissions on the complaint and receives submissions that indicate that maybe some clarification of the complaint is required, my understanding is that the CJC does absolutely go back to the complainant and ask for clarification and ask for more information. If the CJC has a sense that more information should be available, for whatever reason, it will go back to the complainant and ask for more information.
All of that is very much going to be regulated by that policy and procedure on how the CJC will discharge its duty of procedural fairness toward the complainant.