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.
Assistant Deputy Minister, Public Law and Legislative Services Sector, Department of Justice
I would only add that I wasn't involved the way Patrick was in all of the consultations with the CJC, but in a couple of them I can tell you that the complainant's right to procedural fairness and being involved in the process was top of mind.
We'll see in their guidelines what they do come up with, but I know that they're certainly alive to this issue.
Acting Deputy Director and Senior Counsel, Judicial Affairs Section, Public Law and Legislative Services Sector, Department of Justice
Definitely they are.
NDP
Randall Garrison NDP Esquimalt—Saanich—Sooke, BC
Apart from the legal obligation of procedural fairness, is there anything in Bill C‑9 that specifies that information will be provided to the complainants at each stage of the process? I know you keep saying that this can be in the policies, but I'd like to know if Bill C‑9 creates an obligation to have policies that deliver adequate information on the process to the complainants.
Acting Deputy Director and Senior Counsel, Judicial Affairs Section, Public Law and Legislative Services Sector, Department of Justice
The obligation flows from procedural fairness. The Federal Court has found that there is a procedural fairness obligation to notify the complainant adequately of the outcome of the process. That's a legal obligation that the CJC has, that the Federal Court has found that the CJC has.
It's not expressly stated in Bill C‑9, but it's not really necessary to say that it is. It is a legal obligation that the CJC has and that they're very keenly aware of. That's why the bill doesn't need to go into it in any detail. It's there, and the CJC is well aware of it.
NDP
Randall Garrison NDP Esquimalt—Saanich—Sooke, BC
Just to be clear, the phrasing you used is to notify them of the “outcome” of the process, but what I'm asking—
Acting Deputy Director and Senior Counsel, Judicial Affairs Section, Public Law and Legislative Services Sector, Department of Justice
In a meaningful way.
Acting Deputy Director and Senior Counsel, Judicial Affairs Section, Public Law and Legislative Services Sector, Department of Justice
It's to notify them in a meaningful way of the outcome of the process. It's not a matter of.... Exactly how extensive the reasons have to be will depend on the complaint, but they do have to be notified in a clear way how their complaint was dealt with.
Acting Deputy Director and Senior Counsel, Judicial Affairs Section, Public Law and Legislative Services Sector, Department of Justice
The CJC will be in a better position to speak to whether that's only at the end or whether there are intermediate stages. Currently, I can say that for complaints that are entirely public, because some complaints are entirely public from the beginning, the CJC issues press releases at every stage of the process saying that the complaint is now at this stage or at that stage.
Whether they follow the same practice with complainants, I can't say, because we don't manage the process. The CJC manages the process at arm's length from the department. It may well be at every stage of the process. They would be in a better position to let you know how it works behind the scenes.
NDP
Randall Garrison NDP Esquimalt—Saanich—Sooke, BC
Thank you.
You may not have an answer to this question, but I'd like to ask about the level of what we call frivolous or vexatious complaints. Have we seen a change in the number of complaints that would be more about not liking the outcome of cases rather than the actual behaviour of judges? Has there been a trend toward additional, or perhaps fewer, frivolous and vexatious complaints?
Acting Deputy Director and Senior Counsel, Judicial Affairs Section, Public Law and Legislative Services Sector, Department of Justice
Again, that is a question that the council would be better placed to answer. I can say that what we see are the judicial review applications. A complainant can always judicially review a council decision that they're not happy with in Federal Court. That is not going to change following Bill C‑9. Bill C‑9 is only doing away with judicial review by judges; complainants can still judicially review the council.
In these judicial review applications, in the ones that go to court, there is still a fair number where the question is whether this is judicial decision-making or whether this is really judicial conduct. That's the line it seems every judicial council has to walk. It's a difficult line to walk. A lot of the ones that go to court still turn on that question.
Where it's a trend or not, I'm afraid I can't say.
NDP
Randall Garrison NDP Esquimalt—Saanich—Sooke, BC
Thank you very much. I'll follow up later with those.
That will conclude my questions. Thank you, Mr. Chair.
Liberal
The Chair Liberal Randeep Sarai
Thank you, Mr. Garrison.
Next we'll go to a five-minute round, beginning with Mr. Caputo.
Conservative
Frank Caputo Conservative Kamloops—Thompson—Cariboo, BC
Thank you, Mr. Chair. I will be splitting my time with Mr. Van Popta, so I'll endeavour to be a couple of minutes here.
Thank you to the panel.
One question I have is this. When lawyers are subject to a citation that has been founded to be appropriate, the process is that somebody makes a report to the governing law society or organization. If it's frivolous or vexatious, it's dismissed, just like in the legislation. There is that gatekeeper function. But then it becomes public for everybody.
I'm trying to recall whether Bill C‑9 makes that same complaint public.
Acting Deputy Director and Senior Counsel, Judicial Affairs Section, Public Law and Legislative Services Sector, Department of Justice
I'm sorry. The complaint is made public at what stage?
Conservative
Acting Deputy Director and Senior Counsel, Judicial Affairs Section, Public Law and Legislative Services Sector, Department of Justice
The complaint becomes public as soon as you get to a hearing panel. Once you get to hearings, section 2(b) of the charter requires openness. At that point, it becomes public by default.
Whether it's public from the beginning depends on the nature of the complaint, the complainant and so on. Some complaints are kept confidential because the complainant wants them kept confidential. Other complaints are public from the get-go because the complainant wants them to be public or because the misconduct in question has been public from the beginning. It really depends on the complaint.
That's something, again, that the bill leaves to CJC policies. How to navigate confidentiality in those early stages of the process is really tricky. It really depends on context.
Conservative
Frank Caputo Conservative Kamloops—Thompson—Cariboo, BC
Thank you.
I may have misheard the minister. I thought that it would remain confidential.
Acting Deputy Director and Senior Counsel, Judicial Affairs Section, Public Law and Legislative Services Sector, Department of Justice
No, it's not automatic. Confidentiality is not automatic. It really depends on the complaint.
Conservative
Frank Caputo Conservative Kamloops—Thompson—Cariboo, BC
Okay, thank you.
I have a general comment. I think it's moving towards a system where, like lawyers, judges can be subject to all sorts of sanctions. I think that anybody who has practised law, like most of the people here, have seen that it's one per cent of judges who have occasionally caused issues and may be disrespectful, or things like that. I do look forward to the fact that we will be addressing this as a profession.
I'll give my time now to Mr. Van Popta.
Thank you.
November 17th, 2022 / 5:05 p.m.
Conservative
Tako Van Popta Conservative Langley—Aldergrove, BC
Thank you, Chair.
Thank you to the witnesses.
You were talking about reform to the judicial conduct complaints process, which is pretty dry stuff. On the other hand, we're talking about the administration of criminal justice, which, of course, is very important to the way Canada operates. It's very important to the public.
My question is about the perception of the public about how the judicial system works. Is there mandatory reporting that the Canadian Judicial Council has to give annually about how many complaints there are, how many are frivolous and how many went into that direction or another direction?
I think this would go to the confidence that the public has in our judicial system, to know that there is this level of transparency.
Acting Deputy Director and Senior Counsel, Judicial Affairs Section, Public Law and Legislative Services Sector, Department of Justice
Currently, there isn't. The council does issue an annual report where it provides that kind of information, but there is no current requirement. Bill C-9 is going to change that.
I believe it's proposed section 160 at the end of clause 12. It imposes a requirement for an annual report where certain numbers are provided in terms of numbers of complaints and the breakdown of the complaints that the council deals with every year.
Conservative
Tako Van Popta Conservative Langley—Aldergrove, BC
So there's been no reporting up to this stage, but there will be reporting once Bill C-9 is...?
Acting Deputy Director and Senior Counsel, Judicial Affairs Section, Public Law and Legislative Services Sector, Department of Justice
No, there has been reporting every year. The council does it. It's just not required. Now it will be required. I believe that proposed section 160 stipulates some things that have to be in the report.
Those things are largely in the reports already. It reflects established practice. It's just going to be a requirement.