Justice Committee on Nov. 21st, 2022

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

Thank you very much, Mr. Chair, and I'm going to make the appeal once again that we try to figure out what's wrong with this room, because we have periodic problems. All kinds of different people who can be heard quite well on Zoom can't be heard in the room, so there's a recurring technical problem, not with people's equipment but with this room. I just would ask that we look into that.

On the topic today, I'd like to ask both Professor Scott and Professor Devlin, if we can get him back, about the proposal from Ms. Conlon that we change the appeal process so it's an appeal to the appeals court rather than to the Supreme Court of Canada. It seems to me that the reasoning is correct, that one effective appeal would not add greatly to the process, and that the likelihood of the Supreme Court's hearing one of these cases is very small.

Professor Scott.

[Craig Scott]

Very quickly, I think it's a very sound recommendation. As I understand it, it would replace the Supreme Court. It stops at the Federal Court of Appeal. It's possible that could be challenged for not having a further level, but the point is that the Supreme Court doesn't give leave except in a minor number of cases. Her reasoning is absolutely spot on.

I would add one thing. Judicial review is ousted for the judge, but I hope I haven't missed something in the amended act that would oust judicial review for complainants, because at the moment the only way complainants can really understand what's going on, as I described to you, is by getting hold of what the decisions were when a case was dismissed or dealt with and not completely dismissed.

We're talking only about the judge here—the judge going up that stream—not about the complainants, I hope.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

You've raised a bit of doubt for me on that point.

Maybe we can go back to Ms. Conlon to get some clarification on that point.

[Sheree Conlon]

First of all, my understanding is that if the legislation were redrafted as we are proposing, which would be to have a right of appeal to the Federal Court of Appeal, there would still be an opportunity for leave to appeal to the Supreme Court of Canada, at least based on our proposed amendment.

On the second question, regarding who it applies to, my reading of proposed new section 137 of the act is that all rights of appeal, including judicial review, would be excluded by the act, and the final right of appeal from the appeal decision would be to seek leave to the Supreme Court of Canada.

I wouldn't see anything in the bill that would provide any other right of judicial review to anyone involved in the process, but that's nothing we examined specifically. That's my read of the proposed legislation.

[The Vice-Chair, Conservative, Rob Moore]

Mr. Garrison, maybe we'll check in with Mr. Devlin.

Do you want to see if we can hear you, Mr. Devlin? We don't want to miss the benefit of your participation. No, we still can't hear you.

Mr. Garrison, I know they're working on it, but, for whatever reason, we're not getting any audio from Mr. Devlin. I'll check in once in a while in between questions, but in the meantime I would just focus your questions on the two witnesses we can hear.

Go ahead, Mr. Garrison.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

Thank you very much, Chair.

I'll go back to Ms. Conlon. Do you have any comment on the two proposals that Professor Scott put forward on requiring the publishing of reasons for the referral and the report of the review panel?

[Sheree Conlon]

No, we don't have any comment beyond what's already contained in our submissions. As I indicated, The Advocates' Society supports the entirety of Bill C-9, including the restrictions on reasonings.

The public aspect and the involvement of lay participants at the hearing panel, we think addresses some of the concern in terms of public confidence. Beyond that, we don't have any recommended changes to the proposed legislation.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

[Technical difficulty—Editor] Professor Scott.

I'm not sure how much time I have left.

[The Vice-Chair, Conservative, Rob Moore]

You have about two minutes.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

Professor Scott, go ahead.

[Craig Scott]

I double-checked the structure. It's definitely.... What we're talking about are a judge and possibly the pleading officer in terms of going up out of the system.

The right of judicial review is not taken away from complainants. It already exists as part of the broader system. It certainly is not ousted by Bill C-9. If anybody thought it was, then you put in a clause saying that it's not ousted. Otherwise, complainants are made even worse off than ever.

Judicial review is a separate thing from an appeal. When it usually happens is when a matter is dismissed. The reasons do not appear adequate in the letters that complainants receive, and they want to challenge that. That currently happens rarely, but it's possible. That isn't touched by this legislation. I hope, again. I'm looking at Mr. Anandasangaree.

The other thing is that the lay point is extremely important. It also goes to the second kick at the can. The judge gets to say that if the review panel doesn't like it, then within 30 days they want a reduced full hearing. Part of that is they get to swap out a lay person for a lawyer. The lay person's role is there, but then can be stripped out at the instance of the judge.

[The Vice-Chair, Conservative, Rob Moore]

Thank you, Mr. Garrison.

Now we're moving to five-minute rounds, and we'll start with Mr. Caputo.

[Frank Caputo, Conservative, Kamloops—Thompson—Cariboo, BC]

Thank you, Mr. Chair. I appreciate everybody's being here. This is a really interesting topic.

I open this up to all of our witnesses.

Through you, Mr. Chair, I was speaking to Professor Scott earlier, and we were talking about transparency. Throughout this process I've been thinking about it, as in, what happens on the provincial level with law societies when a lawyer is getting sanctioned? I'm mindful of the fact that we are federal and these are provincial, but certainly an analogy can be drawn.

I believe that in British Columbia—and likely in most jurisdictions—when a complaint is made and that complaint is deemed not to be frivolous or spurious, then that complaint is automatically made public.

Professor Scott, and any of the other witnesses, can you comment on Bill C-9 and the analogy, or lack there of, in this legislation, to that transparency?

[Craig Scott]

On the specific example of the complaint being made public, it is not made public by the CJC. However, the CJC current rules, the current act, and this new revised act, don't prohibit complainants from making it public. It's not part of the system to make it public. I'll leave it at that.

The other aspect I'm particularly concerned about is what is then done with the complaint, which is also not made public. That's my concern.

[Frank Caputo, Conservative, Kamloops—Thompson—Cariboo, BC]

Right. Before I hear from the other witnesses on this point, may I ask you a follow-up?

Is that a concern to you when it comes to transparency? I'm mindful of the fact that you said a complainant can make it public. Anybody can make anything public, theoretically, right? However, coming through the official channel and whether a decision is being released, does that concern you when it comes to transparency?

[Craig Scott]

Yes, it does.

However, it's less about the complaint not being made public than how it's handled. The fact that the only way you can make public the reasons for referral or the review panel report is by going to court with a judicial review application has things backwards. It says that the public has a right to this, but you have to go through these extra steps and pay money to do it. Why not do it proactively?

[Frank Caputo, Conservative, Kamloops—Thompson—Cariboo, BC]

Yes, and that's part of the transparency.

If I understand your point, then, this is a small part of a bigger problem when it comes to transparency.

[Craig Scott]

Yes.

[Frank Caputo, Conservative, Kamloops—Thompson—Cariboo, BC]

Thank you.

I'm not sure whether Ms. Conlon wants to weigh in on this, and do we have our other witness back, Professor Devlin?

[Sheree Conlon]

I can weigh in simply from the perspective of the law society.

I can speak to the Nova Scotia law society, and Bill C-9 is actually quite consistent in that complaints that are filed are not made public. It's only when the matter is referred for a hearing and charges are laid that it becomes public. Everything up to that level, from a lawyer's perspective and the complainant's perspective, is kept private. I would see Bill C-9 as being consistent with that process.

[Frank Caputo, Conservative, Kamloops—Thompson—Cariboo, BC]

That's interesting.

In British Columbia, I believe, once the complaint is found to be non-frivolous, then it is made public, but my understanding is that Bill C-9 wouldn't make it public at that point. I may be mistaken.

[Sheree Conlon]

Just to clarify, it obviously varies by jurisdiction, but in Nova Scotia it depends on whether it gives rise to professional misconduct or professional incompetence and charges are laid. At that point, it becomes public.

There can be breaches that from an ethical perspective do not give rise to professional misconduct or professional incompetence. Those are not made public, including the disposition.

That is why I said that I feel that Bill C-9 is consistent with that approach, because a similar approach is being taken.

[Frank Caputo, Conservative, Kamloops—Thompson—Cariboo, BC]

Thank you.

Professor Devlin, do you have any thoughts on that?

[Prof. Richard Devlin]

Yes, perhaps. Can people hear me?

[An hon. member]

Yes.