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.