Justice Committee on Nov. 21st, 2022

[The Vice-Chair, Conservative, Rob Moore]

Good morning, everybody. I call this meeting to order. Welcome back.

Welcome to meeting number 38 of the House of Commons Standing Committee on Justice and Human Rights. Pursuant to the order of reference of October 31, the committee is continuing its study of Bill C-9, an act to amend the Judges Act.

Today's meeting is taking place in a hybrid format pursuant to the House order of June 23, 2022. Members are attending in person in the room, and some witnesses are appearing remotely.

I would like to make a few comments for the benefit of witnesses and members.

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For your information, before anybody asks, all tests have been successfully performed with our witnesses.

I would like to welcome our witnesses for the first hour. Craig Scott, professor of law at Osgoode Hall Law School at York University, is here as an individual. From the Canadian Association for Legal Ethics, Professor Richard Devlin, professor of law, is appearing by way of video conference. From The Advocates' Society, Sheree Conlon, secretary, executive committee of the board of directors, is appearing by video conference.

We will move now to the opening comments. We will start here in the room, with Professor Scott.

Go ahead, please.

[Craig Scott, Professor of Law, Osgoode Hall Law School, York University, As an Individual]

Thank you, Mr. Chair.

Good morning, members of the committee.

Since I don't have a lot of time, I will goright to my findings, but I would be glad to elaborate on them or anything else during the question and answer portion.

Let me now begin by noting that my organizing theme is that Bill C-9 falls quite short when it comes to how transparency fits into the accountability of the judiciary in the face of reasonable concerns of misconduct.

The only decision made public under either the current or the new Bill C-9 system is the decision at the final stage: the report of what is now the panel of inquiry and will be one of the two kinds of hearing panels.

In this regard, my central concern for my remarks is how Bill C-9doesn't disturb the practice of the Canadian Judicial Council, the CJC, of hiding from view two other kinds of decisions and their accompanying reasons. Indeed, Bill C‑9 actually increases the level of secrecy of these two kinds of decisions.

One kind of decision and set of reasons that are not made public in ordinary course are known as “reasons for referral of a complaint to a panel”. Under the current system, it's the vice-chair or the chair of the judicial conduct committee of the CJC who sends them on to the review panel.

Under Bill C-9, if that's going to continue, it would be the reviewing member who would be doing that. To give you a sense, in a recent CJC proceeding in which I was a complainant, this consisted of nine tightly reasoned single-spaced pages.

The second kind of decision that doesn't get published is known as the “report of the review panel”. In the above proceedings in which I was involved, that report was 13 double-spaced pages.

If they're not published, how is it that I know what's in them and how long they are? Forgive me: I might be going overboard, but this is where Kafka comes in.

Let me explain myself. When a review panel finds there's insufficient basis to send a complaint on to a full hearing panel—currently, to a panel of inquiry—the executive director of the CJC sends a letter to these complainants. It purports to give the gist of the review panel's reasonings. That letter can be well or poorly put together. It's not written by the review panel itself.

For the complainants, this is the point: The letter is the decision. That is all they have to go on. If they feel the reasoning in the letter does not stand up to some reasonableness standard, then they can seek judicial review in the Federal Court, only, of course, after having found a lawyer able to do it for the funds the complainants are able to scrape up for a judicial review.

Thus, it is only through citizen initiative in the form of a judicial review application to the Federal Court that the above sets of reasons can become public. This happens because the CJC is bound by the rules of judicial review procedure to disclose to the applicants all relevant documents, which then form part of something called “the certified tribunal record” of the court.

Even then, when the matter gets to the pleadings stages, the lawyers for the CJC effectively tell the applicants who were the complainants: “You know the reasons in the letter that you received and that were the basis for you to seek review? Forget those. That's not actually the decision. The review panel decision is the decision, and now that you've forced its disclosure, that is what you must now convince a judge is unreasonable.”

So it is that complainants must go to court to challenge an unreasonable decision before they have access to what the CJC lawyers tell them is actually the decision. As I said, there's just a bit of Kafka there.

Nothing in Bill C-9 would change this situation. By analogy to the regular court system, it's as if Parliament and the CJC were keeping from prying public eyes the judgment of a motions judge—here, the reviewing member's reasons are the analogy—and the judgment of a trial judge—here, the review panel—with only the judgment of a court of appeal—here, the reduced or full hearing panel—being made public.

Open courts and published reasons are how we approach judges judging others. This of course includes cases where the impleaded person is partly or wholly successful. In the regular system, we don't fail to publish a decision because the defence prevailed, but somehow, when judges judge judges, it's only when we get to this third—in the new Bill C-9 system—appellate stage that we can see the reasons.

Consider what the situation means in the context of one of the big improvements made by Bill C-9, a really big improvement: the inclusion of a wider range of remedies that are available at the review panel stage in the new proposed section 102 of the Judges Act.

However, and along the line of my theme, because the review panel decision stays secret, the public will be little the wiser about exactly why no misconduct was found, if that turns out to be the case; why misconduct was found but characterized in a certain way; why it was of a certain gravity but that was not enough for it to go on to a full appeal hearing; or why a particular remedy was chosen over any of the others in the new section 102.

I'm getting towards the end.

With respect to review panel reasons, Bill C-9 goes on to make matters worse still. You may have heard testimony on why it's there. I find it hard to explain why it's there. Bill C-9 bars reduced hearing panels and full hearing panels from considering review panel decisions and reasons. It also bars the full hearing panel from considering the reasons of the reduced hearing panel. I don't see how that is justifiable.

Our judicial system—and, indeed, our entire approach to the rule of law—depends on the giving of reasons by the judiciary and the publication of those reasons, so the legal profession, public scholars and legislators can understand, apply critique and reform the law. As well, one key way in which judicial reasoning can be relied on to generally produce better results as you go up levels, is in each subsequent court having the benefit of the factual interpretations and legal analysis of preceding levels, which they can refer to, discuss and weave into their own judgments and reasoning in some integrated fashion.

With that, Mr. Chair, I will end, as I know I'm coming up to time. There are a number of interconnected arguments. I have arguments about how we should understand the administrative law of judging judges, and why this has undue secrecy built in for judges, but perhaps I can bring those out in the question period.

I also have a set of specific recommendations for amendments to new sections 97, 103, 111 and 118, and I would suggest adding two more new sections—161 and 162. They're in my written brief, which is not yet available and can't be circulated until it's fully translated. That will take place within a couple of days, hopefully.

Thank you.

[The Vice-Chair, Conservative, Rob Moore]

Thank you, Professor Scott.

I should have said, “Welcome back.” I remember when you were here on this side of the table, so welcome back. It's great to see you here again as a witness.

Next we will move to the Canadian Association for Legal Ethics and Professor Devlin, professor of law.

[Professor Richard Devlin, Professor of Law, Dalhousie University, Canadian Association for Legal Ethics]

Good morning, Mr. Chair. Thank you for inviting me to appear as a witness on Bill C-9.

My name is Richard Devlin and I'm a professor at Dalhousie law school in Halifax, Nova Scotia. I'm here as a member of the board of the Canadian Association for Legal Ethics. I served as its founding president and as chair of the board for several years. More particularly, I'm here because in the last couple of years I've edited two books, with scholars from around the world, on what might be appropriate for a complaints and discipline process for judges. Those two books are called Regulating Judges and Disciplining Judges.

There are three key insights that emerge from those two books.

The first is that the design of a complaints and discipline regime for judges is not just a technical project. It is an important act of statecraft that's about allocating power within our community. It requires us to think about the delicate relationship between the executive, the legislature, the judiciary and the general public. This is often phrased as the “who guards the guardians?” question.

The second key theme that comes out of those materials is another question, which is how we should guard the guardians.

This requires us to articulate key values or principles that should guide us in the design and implementation of a complaints and discipline system for judges. Traditionally, two key values have been identified, the first being independence and the second being accountability. However, our research indicates that there are at least seven other core values that need to be considered. The values in addition to independence and accountability are impartiality, fairness, transparency, representativeness, proportionality, reasoned justification and efficiency. Those are the core values against which we must measure Bill C-9.

The third key insight from our research is that the core purpose of a complaints and discipline process for judges is to promote public confidence in the administration of justice. Over the last two decades in Canada, there have been a number of high-profile cases that have amply demonstrated that the current regime has failed to enhance public confidence in the administration of justice. The purpose of Bill C-9 is to rebuild that confidence.

When you review Bill C-9 generally, there are a number of innovations that are very positive and that do a very good job of trying to balance these particular values or principles, but today I want to identify five core concerns that suggest that we haven't got the right balance of these principles. These are very significant problems that I hope you can be persuaded to address as you work through this legislation.

Our first concern is that not enough attention is paid to the rights of complainants, therefore we compromise the principles of fairness and transparency.

Our second concern is that there's insufficient lay representation in the process, therefore the values of impartiality, independence and representation are compromised.

Our third concern relates to reduced hearing panels. We suggest that the composition of the reduced hearing panels and the processes involved may in fact favour the impugned judge and therefore compromise the principles of impartiality, independence and representativeness.

Our fourth concern is that the remedies for misconduct are not sufficiently comprehensive. In particular, they do not include a power to suspend a judge. Therefore, the principles of transparency and proportionality are compromised.

Fifth and finally, our concern is with the annual reports. These reports are not adequately tailored to the needs of a modern democratic society. Therefore, we compromise the principles of transparency and accountability.

In the question and answer period, I'd be delighted to answer and elaborate on any of these points, but I want to conclude by emphasizing that not since 1971, more than five decades ago, has there been a statutory revision of the complaints and discipline process. The role of Canadian judges has changed profoundly in that time. Canadian democracy has changed significantly in that time. The expectations of the public have changed enormously in that time. It might well be another 50 years before there's another review of the process.

Therefore, Bill C-9 is a unique moment. The Canadian Association for Legal Ethics is delighted to try to help you make Canada develop one of the most comprehensive and persuasive complaints and discipline systems in the world.

I look forward to your questions. Thank you.

[The Vice-Chair, Conservative, Rob Moore]

Thank you, Professor.

Finally, from The Advocates' Society, we have Sheree Conlon, executive committee of the board of directors.

Go ahead, for five minutes.

[Sheree Conlon, Secretary, Executive Committee of the Board of Directors, The Advocates' Society]

Thank you, Mr. Chair, for the opportunity to make submissions to the standing committee today regarding Bill C-9, an act to amend the Judges Act.

My name is Sheree Conlon, and I'm a partner at the law firm of Stewart McKelvey in Halifax, Nova Scotia. I am here representing The Advocates' Society.

The Advocates' Society is a national, not-for-profit association of litigation counsel, with approximately 5,500 members located across Canada. Part of The Advocates' Society's mission is to promote a fair and accessible justice system in Canada.

My submissions to you today will focus on one central point: The Advocates' Society is concerned that Bill C-9 does not allow for an adequate amount of court oversight of the CJC's decisions in its judicial conduct process. I will present to you a simple remedy to this concern that we believe will still achieve the government's laudable goals for this reform.

The Advocates' Society's written submission to the standing committee dated July 18, 2022, expands on the points I will make in my presentation today.

Overall, The Advocates' Society supports amending the Judges Act to reform the CJC's process for reviewing and addressing complaints made against federally appointed judges. We have seen that the current process is susceptible to delay and high costs. These inefficiencies diminish public confidence in the accountability of members of the federal judiciary for their conduct, and we agree they need to be corrected.

The Advocates' Society also agrees that one principal source of the delay and costs in the current process is that the parties can apply to the federal courts for judicial review at multiple points in the process. Parties can then avail themselves of several levels of appeals.

However, we submit that Bill C-9 overcorrects this problem by replacing the court review process with review mechanisms that are almost entirely internal to the Canadian Judicial Council. Under Bill C-9, parties can seek leave to appeal the decisions of the appeal panel only to the Supreme Court of Canada.

This is a concern, because there is no right of appeal; rather, an appeal is available only if the Supreme Court grants leave. The Supreme Court is not an error-correction court, and leave is granted only in cases of public importance. Historically it has granted leave in only about 8% of cases per year. This means there is no guarantee the Supreme Court will grant leave, even in a case in which the CJC's decision is wrong. In our respectful submission, all decision-makers can get it wrong sometimes. That is the purpose of appeal courts.

The Advocates' Society is concerned that Bill C-9 would create a legislative scheme in which the Canadian Judicial Council is the investigator, the decision-maker and the appellate authority with respect to allegations of judicial misconduct. External judicial oversight of the CJC's actions and decisions is all but eliminated.

The proposed process is concerning, because court oversight of administrative actions is fundamental to ensuring their legality and their fairness. This undermines security of tenure, which is a critical component of judicial independence.

The Advocates' Society suggests that there is a simple remedy to our concerns. We propose instead that the parties be provided with a right to appeal the CJC appeal panel's decision to the Federal Court of Appeal instead of the Supreme Court of Canada. Draft language is contained in our submission.

I must stress that we believe our proposed amendment would not reintroduce the delays and costs we see with the current process and which the government is rightly trying to fix. The Advocates' Society's proposal ensures that the CJC's final decision would be subject to appeal only directly to the Federal Court of Appeal. This would eliminate one layer of judicial review, the Federal Court, and eliminate judicial review of interlocutory decisions—which historically have been the primary cause of the delay and expense—while preserving a right of judicial review on the final decision of the CJC's internal process.

The Advocates' Society believes that the small change we propose to Bill C-9 strikes the balance between efficiency, public confidence in judicial accountability and fairness to the parties, all the while maintaining judicial independence.

Mr. Chair, I would be pleased to answer any questions from the standing committee arising from my submissions. Thank you.

[The Vice-Chair, Conservative, Rob Moore]

Thank you. We will now move into our question and comment period.

We will begin with Larry Brock. These are six-minute question and answer time slots.

[Larry Brock, Conservative, Brantford—Brant, ON]

Thank you, Mr. Chair, and good morning, witnesses. I sincerely thank you for your participation in this important study.

I have a limited amount of time, so I will try to balance my questions among all three of you. I have three unique areas I want to discuss.

I want to start off with this proposition.

I'm reviewing a printed summary of Professor Devlin's statement to this committee, and I couldn't agree more with paragraph 3 of that statement: “The core purpose of a complaints/discipline process for judges is to promote public confidence in the administration of justice.”

Professor, you cited a number of cases over the last several decades that have shaken that public confidence to the core.

That is an area I pursued last week, when the Minister of Justice, David Lametti, appeared before this committee. I asked him a specific question: In his view, does he believe the objective of maintaining public confidence in the justice system is in line with the complainant's interest? Is there a balance? He emphatically stated that he did believe there is a unique balance that Bill C-9 puts forth.

I would like to hear from all three witnesses.

I'll start with you, Professor Devlin. What are your thoughts on Justice Lametti's commentary and how you would improve specifically the public confidence aspect of Bill C-9?

[Prof. Richard Devlin]

Thank you very much.

I will go directly to proposed new section 87 of the act. This is the only new section that explicitly addresses the rights of complainants. It says: “The Council shall establish policies respecting the notifying of complainants of any decisions made.” That's all that is given to complainants in the process. This is very weak. It's just notice of the decisions made. This means that once a complaint is filed, the complainant is shut out of the process. This raises fundamental questions around the fairness and transparency of the process and the requirement for reasoning justification.

We would suggest there are actually four improvements that could be made to the legislation that would give greater rights to the complainants and therefore promote public confidence.

First, the complainant should have a right to be informed about the progress of the complaint.

Second, they should be given reasons if their complaint is dismissed.

Third, if there are hearings or an appeal, they should have a right to participate.

Fourth, and finally, they should have a right to request reconsideration of a decision at any stage in the proceedings. This is particularly important if it's dismissed by the screening officer, the reviewing member of the CJC, or the reduced hearing panel.

With respect, I disagree with the minister that we are promoting public confidence, because we're failing to adequately consider the rights of complainants.

[Larry Brock, Conservative, Brantford—Brant, ON]

Thank you. I will move on to Professor Scott.

Do you agree with the Minister of Justice's commentary with respect to that right balance? Whether you do or don't, please explain why.

In under three minutes, I also want to give you the opportunity to expand on the recommendations you feel could enhance Bill C-9.

[Craig Scott]

Thank you very much.

Ultimately, I don't feel the balance is there. I think the points that have been made by both of the other witnesses are good examples of that.

What I would add to the picture is this: There's another feature of the current practice of the CJC that feeds into this imbalance. Complainants are allowed only to send in their complaint. They are told, in a letter, that they can keep sending further information if they have it, but into a void. They have no idea what stage the process is at, etc.

At the end of the process I was involved in.... Something that follows from the current rules of the CJC, I think, is that complainants are not allowed to make submissions. That is, they are not allowed to connect facts to arguments in terms of what they see to be the standards in play. I tried it, just to see, and was told there was no duty to consider the submissions. The vice-chair who had carriage of the case at that stage, read them, but emphasized he had no duty to do so.

I sent them after the review panel had decided internally. I didn't know that, because I had no idea what stage the review panel was at. I'm guessing that the vice-chair, whose hands it was back in, realized there was a bit of an imbalance, because something else happened: A third party non-complainant submitted an argumentative brief to the Council, which was passed on to the review panel. Complainants are not allowed to do it. A third party who had nothing to do with the case was allowed to do so. I think he probably realized that, at minimum, he had to read it to say that it didn't make any difference to what he was going to do.

[Larry Brock, Conservative, Brantford—Brant, ON]

Professor Scott, I have just under 30 seconds. Of the recommendations that you wanted to talk about at some point to this committee, can you highlight one that's most important—in 20 seconds or less?

[Craig Scott]

In 20 seconds, I would say this. For both the reasons for referral and the review panel report, there should be a duty to publish. The standards should be that the council “shall make public the reviewing member’s written reasons for referral”, and, in a separate clause, make public the review panel report “to the same extent as the council would be obligated to disclose them in order for them to form part of the certified tribunal record in the event of judicial review proceedings”.

The point is that we can get these things. We just have to go to court. Why hold them back and force citizens to pay money to see things they can get through a judicial process? Whatever the standards are that you can maybe hold back some of the stuff—for reasons of anonymity, privacy or whatever—would still apply, but whatever you'd have to give up, were there JR, you'd have to give up proactively.

[Larry Brock, Conservative, Brantford—Brant, ON]

Thank you, Professor Scott, and thank you to all the witnesses. I'm out of time.

Thank you, Chair.

[The Vice-Chair, Conservative, Rob Moore]

Thank you, Mr. Brock.

Ms. Dhillon, you have six minutes....

Oh, okay. It's Mr. Naqvi.

[Yasir Naqvi, Liberal, Ottawa Centre, ON]

Thank you very much, Chair.

I'll pick up on Mr. Brock's line of questioning, and I'll start with Professor Devlin.

These are unique proceedings when it comes to looking at the conduct of our judiciary. All witnesses acknowledge that fact. They obviously go to the core of ensuring and maintaining, if not in fact enhancing, I would argue, confidence in our independent judiciary, so a fair bit of care and balance needs to be accomplished.

Professor Devlin, you feel that Bill C-9 does not accomplish that balance. Let me give you an opportunity to explain to us how that balance can be accomplished in such a way that we do not undermine the independent nature of our judicial system and the independent nature of our judges in particular, as individuals.

[Prof. Richard Devlin]

You're absolutely right that these are unique proceedings. You're absolutely right that judicial independence is vital. However, judicial independence is part of a larger picture of promoting public confidence in the administration of justice, not just public confidence in the independence of the judiciary.

Judicial independence is vitally important, but as I said, there are several other key values, which I've tried to identify for you, beyond independence. Again, they are accountability, they are the impartiality of this process and they are the fairness of this process. You can't have public confidence if there's no real transparency. You can't have real public confidence if there's not [Technical difficulty—Editor]

[The Vice-Chair, Conservative, Rob Moore]

I'm sorry, Mr. Devlin. We can't hear you.

Mr. Naqvi, do you want to move on to another—

[Yasir Naqvi, Liberal, Ottawa Centre, ON]

Can you pause my time for a second?

[The Vice-Chair, Conservative, Rob Moore]

Sure.

[Yasir Naqvi, Liberal, Ottawa Centre, ON]

I think there are some serious issues around the quality of the sound and the volume as well. I don't know if there's a way we can rectify that before I continue with my line of questioning.

[The Vice-Chair, Conservative, Rob Moore]

I know the clerk was working on that before we started. I guess it was a little sketchy.

Do you want to try to work with Mr. Devlin?

[The Clerk of the Committee, Mr. Jean-François Lafleur]

Yes, I will. This is the best we can do so far, Mr. Chair.

[The Vice-Chair, Conservative, Rob Moore]

Okay.

Mr. Naqvi, do you want to continue your questioning?

[Yasir Naqvi, Liberal, Ottawa Centre, ON]

Mr. Devlin, perhaps you can try talking a bit to see if we can hear you.

We can't hear him. I will have to continue.

Mr. Scott, let me pose the same question to you around balance. You also felt that balance was not reached. Very quickly, do you have a suggestion or two as to how one can accomplish that balance while ensuring that we are not only maintaining but also enhancing the independence of our judiciary and judges?