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.