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.
5:05 p.m.
Conservative
Tako Van Popta Conservative Langley—Aldergrove, BC
Could you give us a sense of the scale? How many complaints are there in any given year? How many result in sanctions or are removed?
We all know about the Camp case, of course. It was high profile. How many low profile cases do we see every year?
5:05 p.m.
Acting Deputy Director and Senior Counsel, Judicial Affairs Section, Public Law and Legislative Services Sector, Department of Justice
My understanding is that there are around 600 or so complaints a year. It depends on the year. It varies quite a bit there. Some years it's closer to 700; some years it's a little bit lower. I would say that over time it's probably trending a little bit upwards, and that's because the federally appointed judiciary continues to grow.
5:05 p.m.
Acting Deputy Director and Senior Counsel, Judicial Affairs Section, Public Law and Legislative Services Sector, Department of Justice
It does, yes. I think we have around 1,200 federally appointed judges.
5:10 p.m.
Conservative
5:10 p.m.
Acting Deputy Director and Senior Counsel, Judicial Affairs Section, Public Law and Legislative Services Sector, Department of Justice
No, there aren't 1,200 complaints; there are 1,200 federally appointed judges.
Having more judges probably means that the number of complaints grows a little bit every year. It's around the 600 mark or so every year. How many are frivolous, vexatious or go forward, that information, unfortunately, we don't have. You'll have to inquire with the council.
5:10 p.m.
Conservative
5:10 p.m.
Acting Deputy Director and Senior Counsel, Judicial Affairs Section, Public Law and Legislative Services Sector, Department of Justice
Yes. It will be part of what will come out in the reports every year going forward.
5:10 p.m.
Liberal
The Chair Liberal Randeep Sarai
Thank you, Mr. Van Popta.
Next we'll go over to Madame Brière for five minutes.
5:10 p.m.
Liberal
Élisabeth Brière Liberal Sherbrooke, QC
Thank you, Mr. Chair.
Greetings, everyone.
Thank you for being with us this afternoon.
Earlier we heard that Bill C‑9 would improve efficiency and reduce delays. However, the process nevertheless involves review panels, hearings, plenary hearings, appeals and, ultimately, the Supreme Court of Canada.
Can you confirm that the objective will be achieved?
5:10 p.m.
Acting Deputy Director and Senior Counsel, Judicial Affairs Section, Public Law and Legislative Services Sector, Department of Justice
Yes, absolutely. The objective will be achieved.
It's true that there are a lot of committees.
I have to say that this process does two things simultaneously. It's designed, first, to determine whether a judge is guilty of misconduct or should be sanctioned for slightly less series misconduct, and, second, to determine whether it should be recommended that the judge be removed under subsection 99(1) of the Constitution Act, 1867. That's why I said a little earlier that, if you mapped out the process, it would have the shape of a letter “Y”. After the appeals, the paths then come back together and continue on to the Supreme Court.
The complexity stems from the fact that, in a way, there are two processes in one, but we're certain the objective will be achieved.
5:10 p.m.
Liberal
Élisabeth Brière Liberal Sherbrooke, QC
Thank you very much.
We also know that the first essential condition of judicial independence is that judges may not be removed on arbitrary grounds. That's the principle of immovability provided under paragraph 11(d) of the Canadian Charter of Rights and Freedoms. It's essential to maintaining public trust. It's also the antithesis of discretionary or arbitrary appointment.
How are the changes proposed in Bill C‑9 consistent with the rights protected under paragraph 11(d) of the charter?
5:10 p.m.
Acting Deputy Director and Senior Counsel, Judicial Affairs Section, Public Law and Legislative Services Sector, Department of Justice
Bill C‑9 is absolutely consistent with that paragraph of the charter.
Paragraph 11(d) requires that judges have a right to a hearing where they may be heard or be represented by counsel, if they so wish, and where they may adduce evidence and have it considered. Review panels are specifically designed for that purpose. A judge has a plenary right of appeal. Once again, the appeal is not restricted in any way. It isn't an appeal solely on points of law; it's a plenary appeal. The same is true in the Supreme Court.
As I mentioned a little earlier, according to the Federal Court of Appeal's Bourbonnais decision, judges have a right to have their fees paid by the government solely for the purposes of the process.
Bill C‑9 would ensure that is the case. That's provided in paragraph 146(1)(d), if I'm not mistaken. We are really ensuring that all rights under paragraph 11(d) of the charter respecting judicial independence are reflected in Bill C‑9.
5:10 p.m.
Liberal
Élisabeth Brière Liberal Sherbrooke, QC
I see.
Could you tell us a little about the consultations that were conducted on Bill C‑9?
5:10 p.m.
Acting Deputy Director and Senior Counsel, Judicial Affairs Section, Public Law and Legislative Services Sector, Department of Justice
Yes.
The consultation was done in several stages.
The department prepared a consultation document that was posted to the departmental website, and the general public had a chance to comment on it.
We officials also examined all the correspondence that the Minister of Justice had received from the public over the years regarding the judicial conduct process.
We consulted the Canadian Judicial Council, which will manage the process; the Superior Court Judges Association, which is the main representative of superior court judges; the Federation of Law Societies of Canada; the Council of Canadian Law Deans; and the Canadian Bar Association.
We consulted lawyers who have represented judges in previous disciplinary processes, lawyers who have adduced evidence against judges and lawyers appointed to inquiry committees.
We received submissions from the Barreau du Québec and the Canadian Association for Legal Ethics, which is an association of legal ethics professors.
Lastly, we consulted the provinces and territories.
So this consultation was quite exhaustive.
Bill C‑9 truly reflects the concerns that we heard from all those groups. They focus mainly on the fact that there were no sanctions for minor misconduct, that the process for removing a judge for gross misconduct was too long and too costly and that it was impossible for the general public to take part in the process for determining whether a judge was guilty of misconduct.
Bill C‑9 will therefore remedy all that.
5:15 p.m.
Liberal
5:15 p.m.
Liberal
The Chair Liberal Randeep Sarai
Thank you, Madame Brière.
Now we'll go to Monsieur Fortin for two and a half minutes.
5:15 p.m.
Bloc
Rhéal Fortin Bloc Rivière-du-Nord, QC
Thank you, Mr. Chair.
Mr. Xavier, you mentioned a large number of legal associations and experts among the organizations you consulted. You said you received a brief from the Barreau du Québec.
Am I to understand that you didn't consult the Barreau du Québec at the outset?
5:15 p.m.
Acting Deputy Director and Senior Counsel, Judicial Affairs Section, Public Law and Legislative Services Sector, Department of Justice
We asked the Federation of Law Societies of Canada to forward our consultation document to all bar associations across the country. We expected the submissions from the federation would reflect those of all bar associations in Canada. However, we received a separate submission from the Barreau du Québec.
5:15 p.m.
Bloc
Rhéal Fortin Bloc Rivière-du-Nord, QC
I see. So you didn't contact the Barreau du Québec, or you didn't send them a request.
5:15 p.m.
Acting Deputy Director and Senior Counsel, Judicial Affairs Section, Public Law and Legislative Services Sector, Department of Justice
No. We went through the federation. We expected the federation to consult the various bar associations, including the Barreau du Québec.
November 17th, 2022 / 5:15 p.m.
Bloc
Rhéal Fortin Bloc Rivière-du-Nord, QC
I have another question for you.
Bill C‑9 is a new version. We've been discussing the possibility of amending the process for a long time. Actually, Bill S‑5 and Bill S‑3 were previously introduced, but died on the Order Paper.
Would you please explain the main differences between Bill S‑5, Bill S‑3 and Bill C‑9?
5:15 p.m.
Acting Deputy Director and Senior Counsel, Judicial Affairs Section, Public Law and Legislative Services Sector, Department of Justice
There's not really any difference. They're exactly the same bill.
5:15 p.m.
Bloc
Rhéal Fortin Bloc Rivière-du-Nord, QC
I see.
If my understanding is correct, no provision was made in any of those bills to compel a judge subject to a complaint to repay legal fees.
5:15 p.m.
Acting Deputy Director and Senior Counsel, Judicial Affairs Section, Public Law and Legislative Services Sector, Department of Justice
No, those bills were identical to Bill C‑9.