Justice Committee on Nov. 21st, 2022

[Craig Scott]

Exactly.

I think my main point would be that I don't see anything about any of the proposals so far that compromises the independence of the judiciary. That would be my first point.

What they do is enhance the other kinds of values that are crucial. They include reminding the judiciary that confidence does not come from overly stacked processes and from an undue degree of non-transparency. That actually feeds the lack of confidence that undermines the very basis of the independence of the judiciary. Embracing more secrecy than is healthy, cutting off the relevance of lower decisions by referrals of reasons or review panel decisions, allowing the judge a second kick at the can to have a de novo review panel and calling it a reduced hearing panel.... Clearly, all these things are safeguards of a certain sort for judges, but on their own without some of what we're suggesting, that produces serious unbalance.

One of the final points I would make is that two things are going on here. Both the bill and the CJC are underplaying something called the open court principle, which applies to tribunals as well, and overplaying the independence of the judiciary principle. They're also doing another move, which is to say that the CJC is just an administrative body and is no different from any other professional regulator. Therefore, with regard to anything that's involved in keeping decisions quiet before there's a tribunal decision, what's the harm? That happens in other tribunal contexts.

The CJC is not just any regulator. It's responsible for the third and most important branch of government when it comes to how individuals are affected by judgments of the state.

[Yasir Naqvi, Liberal, Ottawa Centre, ON]

Thank you. It's just that I'm very limited in my time.

[The Vice-Chair, Conservative, Rob Moore]

Mr. Naqvi, we'll pause your time for one second.

I guess, Mr. Devlin, your microphone was deactivated. Do you want to try it again?

No, we're still not hearing you. I'm told your microphone was deactivated.

Go ahead, Mr. Naqvi.

[Yasir Naqvi, Liberal, Ottawa Centre, ON]

I want to pick on one feature that is proposed that I find unique and interesting, which is including lay persons on review committees. I'll start with Ms. Conlon, to get her views on this. I found that very interesting, because we rely on lay persons when we're appointing judges as part of the JAAC process, the judicial appointments advisory committee process, and to now to see lay persons involved in the review of judicial conduct or misconduct is interesting.

Ms. Conlon, what are your thoughts on that? Do you see benefits to adding lay individuals in this review process?

[Sheree Conlon]

Yes, we do see a benefit to adding lay witnesses who are involved in the entire process. It is an improvement from the perspective of the public confidence in the process. As we've indicated, The Advocates' Society supports all of the amendments, including the addition of lay-witness participation, with the sole exception of the external judicial review process.

[Yasir Naqvi, Liberal, Ottawa Centre, ON]

Great. Thank you. I think my time is up.

[The Vice-Chair, Conservative, Rob Moore]

Thank you, Mr. Naqvi.

Now, for six minutes, we have Mr. Fortin.

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

Thank you, Mr. Chair.

Thank you to the witnesses for being here and for contributing to our study on this important bill.

I want to discuss the sanctions that are available. As we all know, cases of misconduct by members of the legislature make headlines, as do the council's decisions, and that significantly affects the public's trust in the administration of the justice system.

A certain number of benefits are granted. Take, for example, Judge Girouard's case, which has captured media attention in recent years. A number of legal proceedings were initiated in order to buy time. Judge Girouard ended up stepping down, but he walked away with a number of financial benefits, including his salary, his pension and coverage of his legal costs.

Mr. Scott, do you think changes could be made so that a judge who is found guilty faces financial sanctions or penalties? For example, perhaps the judge could be made to pay the legal costs, at least some of them.

[Craig Scott]

Mr. Fortin, I think new section 102 could be amended to allow the review panel to impose salary-related penalties, such as suspending a judge's pay.

Three or four years ago, in Ontario, Judge Zabel wore a MAGA hat after Trump was elected, and his penalty was a two-month reduction in pay.

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

What type of hat was it?

[Craig Scott]

It was a hat emblazoned with “MAGA”, which is the slogan “Make America Great Again” abbreviated.

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

I see.

[Craig Scott]

That's a possibility in Ontario, but I can't say with certainty that it is in this case. It may be possible under paragraphs 102(f) and 102(g), but I'm not sure.

As for legal fees, the government has to pay them up to a certain point, but perhaps not all of them. I'm not exactly sure where that line is.

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

Where is the line? That is indeed the question. Perhaps it should be measured using percentages.

I gather from your remarks that financial penalties would be something worth considering.

[Craig Scott]

Yes, that would be a good idea.

There aren't any now, so I imagine there's been some pushback to the idea from judges.

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

What impact would such provisions have on judicial independence, in your view?

Isn't there an argument to be made that financial penalties could undermine judicial independence or the credibility of a judge returning to the bench after having faced a financial penalty?

[Craig Scott]

Yes, there is an impact. That may be why there was pushback. One of the elements underlying judicial independence is security of tenure.

Imposing a reduction in pay is perhaps an option, but it may be easier not to change the provision. The fact that a jurisdiction in Canada—Ontario—has done it shows that it is possible.

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

You said it's been done in Ontario. How long has Ontario had the measure in place?

Also, has the measure been challenged?

[Craig Scott]

That, I don't know. I'm sorry.

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

Could you answer the same question, Ms. Conlon, in 30 seconds?

Should we consider including financial penalties in Bill C‑9?

[Sheree Conlon]

I'm not sure if Mr. Devlin's microphone is working.

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

Where do you stand on the matter, Ms. Conlon?

You have just a few seconds.

[The Vice-Chair, Conservative, Rob Moore]

You have only about five seconds left, so maybe we could have a very quick answer, Ms. Conlon.

[Sheree Conlon]

The Advocates' Society would not recommend any changes to include financial sanctions in the legislation.

[The Vice-Chair, Conservative, Rob Moore]

Thank you.

Thank you, Mr. Fortin.

Mr. Garrison, go ahead for six minutes.