Evidence of meeting #38 for Justice and Human Rights in the 44th Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was c-9.
A recording is available from Parliament.
11:55 a.m.
Prof. Richard Devlin
Thank you for that. I apologize for the technology problems. I'm not sure it's my fault.
11:55 a.m.
Some hon. members
Oh, oh!
11:55 a.m.
Prof. Richard Devlin
I agree with Ms. Conlon on her description of Nova Scotia.
I'm not sure the analogy to the regulation of judges is the appropriate analogy. The function of law societies is to promote the public interest in the practice of law. Just because they don't necessarily make their processes transparent is not necessarily the reason the CJC should make its processes transparent.
Again, if we're trying to think about the larger values we're trying to promote, there is also significant public dissatisfaction and a lack of public confidence in how law societies regulate, so I'm not sure an awful lot of light is captured by looking to what law societies do in this regard.
Could I take a quick second to respond to the previous question? It was around the judicial review question.
11:55 a.m.
Conservative
Frank Caputo Conservative Kamloops—Thompson—Cariboo, BC
You have 30 seconds. I'm fine with your taking that time.
Thank you.
11:55 a.m.
Prof. Richard Devlin
I would simply say that we agree with The Advocates' Society that appeal to the Federal Court of Appeal would be a good move.
The only clarification I would make, though, is that there's a nuance in this. If you look carefully at proposed subsection 146(2), which deals with the fees that are paid, it says:
no payments to lawyers representing judges are to be made in respect of any judicial review of any decision made under this Division
This seems to acknowledge that perhaps there in fact could still be a judicial review process. The legislation tries to exclude the possibility of judicial review. I think it is also implicitly acknowledging that it could still happen through this process. Maybe, given the Federal Court of Appeal's decisions in recent years, it's saying that the Canadian Judicial Council cannot exclude judicial review.
That is a nuance. However, basically we are in support of the position advanced by The Advocates' Society. I'll stop there.
11:55 a.m.
Liberal
Lena Metlege Diab Liberal Halifax West, NS
Thank you very much, Mr. Chair.
It's nice to see you, Ms. Conlon and Professor Devlin.
Two out of three witnesses on this panel are from my home province—
11:55 a.m.
Professor of Law, Osgoode Hall Law School, York University, As an Individual
Also, I was born in Windsor, Nova Scotia, in the same hospital as Scott Brison and Geoff Regan.
11:55 a.m.
Liberal
Lena Metlege Diab Liberal Halifax West, NS
You were born in Windsor? Well, a hundred per cent: This could not be a better morning for me.
Welcome.
Professor Devlin, I'm glad the audio is working for you. You seem to be a bit of a celebrity here. A number of the panellists and people in the room here have said that you taught them. I know you started at Dalhousie the year before I left. It's nice to see you.
I want to go back to a really simple question. Maybe I'll start with you, Ms. Conlon.
What is it that the government is trying to address by bringing in Bill C-9?
I hear that you pretty much support the recommendations, with the exception of the one issue of having it go to Federal Court. Can you take me back to what it is, in your opinion, that we are trying to address? Is there anything else? I suppose you're limited in your testimony because you've only looked at it so far, but is there anything else you would like to share with us for our benefit in our review?
Noon
Secretary, Executive Committee of the Board of Directors, The Advocates' Society
We see two fundamental objectives. One is increasing public confidence in the judiciary, and the other—and there can be tension between the first and second—is maintaining the independence of the judiciary, particularly security of tenure. That is why The Advocates' Society thinks this legislation strikes the right balance between the two. It does a number of things. It streamlines the process. It reduces time and cost, as well as abuses like those that occurred in the past. It increases lay participation.
Our only concern—this goes to security of tenure for judges, as well as public confidence in the process—is the external judicial oversight process. Otherwise, in practical reality, what we have is a piece of legislation that allows the entire process to be conducted internally by the CJC, without external judicial oversight.
I understand the argument about the appeal panel within the CJC being composed of judges sitting as an appeal court. However, they are performing an administrative function pursuant to the act, which is different from the judicial function in an appeal. We would propose that this function should be exercised by the Federal Court of Appeal.
As I indicated, the concern regarding both public confidence and security of tenure is over adequate external judicial oversight. We are concerned that this is not accomplished by the current piece of legislation, because in the vast majority of cases it is likely the Supreme Court of Canada will deny leave, as it does not meet the public importance test set out by the Supreme Court of Canada. There will be little to no testing by way of an appeal.
Those are my comments.
Noon
Liberal
Lena Metlege Diab Liberal Halifax West, NS
Thank you, Ms. Conlon.
Mr. Scott, I like how you described it as “judging judges”. Again, we're talking about federally appointed judges here.
I'm not sure which of you has practised law in terms of going to court. My question is this: What are the complaints that come against federally appointed judges? Is it the fact that complainants...perhaps they don't like the decision, or does it go more to societal issues and so on?
I can remember, when I started—when I articled, back in the late eighties and early nineties—my goodness, most of them were male judges. I tell you, I heard courtroom horror stories from females.
I don't know whether any of you can comment on that. I would be interested to hear that. I don't know who to ask.
Noon
Professor of Law, Osgoode Hall Law School, York University, As an Individual
I can say something very briefly. I think Ms. Conlon probably has more direct experience.
It runs the gamut. The CJC sees an awful lot of complaints that get screened out, because people don't like what a judge decided, and they throw into it a bit of the judge's manner, tone or whatever—that kind of stuff. There is a distinct need for a screening mechanism, because things that are not in this purview come up a lot in the judicial councils.
Beyond that, it can be the individual conduct of judges—sexual misconduct or whatever, where there's a victim in a general public interest sense, not just a complainant. There can be interference in lobbying, which occurred recently with one judge, I believe, but the review panel did not agree this was the correct characterization. There's a whole range of things that can throw the integrity of the judiciary into doubt.
Noon
Conservative
Rob Moore Conservative Fundy Royal, NB
Thank you, Madame Diab, and thank you to all our witnesses. It's unfortunate that we had some technical difficulties, but I think everyone would agree we heard some important and thoughtful testimony.
We are going to suspend for two minutes. We have another panel of witnesses to set up. We will get started as quickly as possible.
Thank you to all our witnesses.
12:10 p.m.
Conservative
The Vice-Chair Conservative Rob Moore
We'll get started for our second panel.
I should mention, although you're probably all aware, that we are going to have a vote. I'm told that the bells will start at 12:38 p.m., so we could probably meet until 12:45 p.m. or so. We'll wrap up in time for people to get to the vote.
We have here today, from the Office of the Commissioner for Federal Judicial Affairs, Marc Giroux, commissioner; and from the Canadian Judicial Council, Jacqueline Corado, senior counsel.
We will begin with you, Commissioner Giroux, for your five-minute opening statement.
12:10 p.m.
Marc Giroux Commissioner, Office of the Commissioner for Federal Judicial Affairs
Thank you, Mr. Chair.
I'm very pleased and honoured to be here today. I'm joined by Jacqueline Corado, senior counsel in the secretariat of the Canadian Judicial Council.
From the outset, allow me to say that the Office of the Commissioner for Federal Judicial Affairs, the Canadian Judicial Council and the Canadian Superior Courts Judges Association are pleased that this judicial conduct reform bill is making its way through Parliament and is being studied by your committee. We all look forward to its receiving royal assent.
You will already know that the council and the association have worked with Justice in order to bring this bill to fruition. In our opinion, Bill C-9 will provide for much-needed efficiency in the judicial conduct process and will reinforce public confidence in the regime.
With respect to the Office of the Commissioner for Federal Judicial Affairs, it was created under the Judges Act and is independent of the Department of Justice, and its mission is to safeguard the independence of the judiciary.
Among other things, we administer the Judges Act on behalf of the Minister of Justice, administer the appointments process for the Supreme Court of Canada as well as for superior courts across the country, publish information relevant to the judiciary such as statistics on judicial expenses and diversity on the bench, and provide other services. We provide services to approximately 1,200 federally appointed judges.
The Judges Act also provides for the office of the commissioner to provide corporate services to the Canadian Judicial Council. Such services include obtaining necessary funding from the Department of Finance and the Treasury Board for the council’s operations, for its needs with respect to investigations into judicial conduct, as well as for the legal costs of judges who are the subject of a complaint.
In accordance with the Judges Act, the commissioner must also provide council with the necessary personnel for its operations and its secretariat. The secretariat includes a small team of about 10 employees, ordinarily led by an executive director. At the current time, in the absence of an executive director, I as commissioner am performing those duties myself.
Ms. Corado's role as senior counsel in the secretariat is focused on the judicial conduct process. She or I will be pleased to provide answers to your questions later.
Mr. Chair, before I turn it over to Ms. Corado, allow me to make a few observations about the Canadian Judicial Council.
The council is chaired by the Chief Justice of Canada and is composed of all chief justices and associate chief justices in the country, that is, those of the courts of appeal and superior trial courts. At present, there are 44 such positions of federally appointed chief justices and associate chief justices.
Under section 60 of the Judges Act, the council’s mandate is to promote efficiency and uniformity, and to improve the quality of judicial service, in superior courts. As you know, the main functions of the council are focused on judicial conduct and judicial education. That being said, the council has several committees working on various topics.
Over the past two years, the council has been active on a variety of fronts, including, for example, ensuring court services during the COVID pandemic through, amongst other things, the action committee on court operations in response to COVID-19, co-chaired by the chief justice and the Minister of Justice. The council has signed MOUs with the government on judicial education and the council's governance, has [Technical difficulty—Editor] self-represented litigants, and has ensured more communications and publications in order to increase the transparency of its work.
One last example of the council's recent work is the new and revised ethical principles for judges that the council adopted and has published on its website. These revised principles are founded in the concepts of integrity, independence, equality, diligence and impartiality. They recognize that ethical considerations evolve and need to keep pace with society's expectations.
Mr. Chair, I feel this may be a good segue to pass it over to Ms. Corado, if you agree.
12:15 p.m.
Jacqueline Corado Senior Counsel, Canadian Judicial Council
Thank you, Commissioner, and thank you again, honourable members of Parliament, for your invitation to speak on Bill C-9.
This is something the Canadian Judicial Council has indeed been looking forward to. You will know that the Chief Justice of Canada, as chair of the council, has spoken publicly on a few occasions on the need to bring this reform in order to bring more efficiency and transparency to the judicial conduct process for the benefit of all Canadians.
As already indicated, the council has also worked on the proposed reform with the Department of Justice and the Canadian Superior Courts Judges Association. We look forward to the adoption of Bill C-9.
As you know, section 99 of the Constitution Act, 1867, provides for the security of tenure of judges, which is a key element of judicial independence. A judge of a superior court can be removed from office only by the Governor General on address of the Senate and House of Commons.
Judicial independence means that judges must be free to decide independently from any form of direct or indirect coercion. However, judicial independence does not require that the conduct of judges be immune from inquiry. On the contrary, as stated by section 99 of the Constitution Act, 1867, a superior court judge shall remain in office “during good behaviour”. Therefore, an appropriate system for the review of judicial conduct is crucial to maintain public confidence in the judiciary.
It is from this standpoint that the Canadian Judicial Council was created.
The council is the only body mandated to determine when the obligation of good behaviour under section 99 of the Constitution has been violated, as well as which type of misconduct is serious enough to merit the removal of a judge.
Of course, not all complaints warrant a recommendation fo removal from the bench. In fact, the vast majority of complaints received by the council either do not fall under its authority or have no basis—often because they are related not to judicial conduct, but to the judge's decision or because they are frivolous.
That brings me to the current process and how Bill C‑9 would improve it.
Currently, a full judicial conduct review process is composed of five stages within council. The first two stages have been qualified by the courts as a screening stage. The third stage of the process is a review panel that will decide whether an inquiry panel needs to be created, if the complaint is serious enough to merit the removal of a judge.
Under Bill C-9, the review panel will also have other tools. It will be able to impose other types of remedy for misconduct, such as private or public apologies, counselling or continuing education for the complaints that fall short of removal.
The fourth level of the process is an inquiry panel that makes findings of fact and may recommend the removal of the judge. If the inquiry panel recommends removal, then we move to the last stage of process, where a minimum of 17 members of council must consider the inquiry report and recommendation for removal.
Under Bill C-9, if a review panel refers the complaint to a hearing panel, and if the hearing panel recommends removal, the judge will be able to appeal that decision within the council. Bill C-9 provides for this appeal mechanism so that the council will deal with any appeal application in a more expeditious manner and as the appropriate authority and guardian of judicial conduct.
One obvious improvement that Bill C-9 brings is efficiency of the whole process. Over the past years, we have witnessed how the current process may allow for lengthy delays due to multiple judicial reviews.
Overall, we agree that Bill C-9 aims to strike the right balance of fairness for both judges and complainants in order to maintain public confidence in the conduct review process. We also agree that it aims to strike the right balance between accountability and judicial independence.
The council hopes that Bill C‑9 will be passed without delay. We believe these changes will have a significant and positive impact on the judicial conduct process, which will benefit all Canadians.
We thank you for the opportunity to express the council's views and for your excellent work.
12:20 p.m.
Conservative
The Vice-Chair Conservative Rob Moore
Thank you, both, for your testimony.
Now we'll move into the question and answer period. These are six-minute rounds, beginning with Mr. Van Popta.
November 21st, 2022 / 12:20 p.m.
Conservative
Tako Van Popta Conservative Langley—Aldergrove, BC
Thank you, Chair, and thank you, witnesses, for being here. This is a very important study. We're studying judges judging judges.
At this committee we've heard testimony on previous studies, one on the victims of crime and another on the defence of extreme intoxication. We are hearing from witnesses who feel the justice system isn't very just to them.
We heard one executive director of an abused women's centre say that if this defence of extreme intoxication becomes permanent, as women, they receive the message loud and clear that they are not safe in Canada. Now, whether or not that position is justified, it is a commonly held understanding or perception of the justice system.
I'm moving on to the functionality of Bill C-9 and the functionality of the Canadian judicial system.
There is the case of Quebec Superior Court Justice Michel Girouard, who is fighting the Canadian Judicial Council's recommendation that he be removed. It went through appeal and appeal and appeal. It's dragged on for years. Again, this puts the Canadian judicial system in a bad light in the eyes of the public.
This is for you, Ms. Corado.
How does Bill C‑9 improve the public perception of how justice is administered in Canada?
12:20 p.m.
Senior Counsel, Canadian Judicial Council
With the case of Girouard, now it's done. He has resigned. He lost the application for appeal to the Supreme Court, but it was indeed a case that dragged on. There were multiple judicial reviews. This created costs and delays. This is what Bill C-9 aims to correct, that no more judicial reviews of this kind will drag on forever.
Right now the process, and what was done in Girouard, is that every decision of council is brought to the Federal Court for judicial review. That creates a very long delay.
With Bill C-9, there's going to be an appeal mechanism. There's a part of a clause that doesn't allow for those judicial reviews anymore. In that context, it provides the balance of procedural fairness for the judge to contest a decision of council. It also provides for council to streamline.... I think Minister Lametti gave a good example: that the process keeps going up instead of going sideways, with multiple judicial reviews that create undue delays.
12:20 p.m.
Conservative
Tako Van Popta Conservative Langley—Aldergrove, BC
Thank you.
An earlier witness today, Ms. Conlon from The Advocates' Society, on the one hand is applauding Bill C-9, saying it is definitely an improvement, but on the other hand says that building in these efficiencies of no appeals or only internal appeals was an overreaction. Their organization is recommending an amendment to Bill C‑9 to include the ability over the right to appeal to the Federal Court of Appeal, not to the trial court but to the Court of Appeal.
What are your comments on that? Would that be an improvement that we should consider?
That's for either one of you.
12:20 p.m.
Commissioner, Office of the Commissioner for Federal Judicial Affairs
Perhaps I can start, if you'll allow me. I'd be quite happy to bring any further information.
The Canadian Judicial Council is made up of chief justices, associate chief justices. When a matter comes before a full hearing panel, it will have two of those members on the panel. It will have a member of the association...or nominated, or at least recommended by the association as well. It will have a lay member, and it will have a lawyer who has been nominated by the Minister of Justice.
In light of the makeup of that panel, we are of the view that the appropriate body to review such a decision—a decision of the Canadian Judicial Council and that particular hearing panel—would be the Supreme Court of Canada.
12:25 p.m.
Conservative
Tako Van Popta Conservative Langley—Aldergrove, BC
I just want to interact with that.
That question was put to Ms. Conlon. She said that their proposal does not exclude the ability to appeal from the Federal Court of Appeal to the Supreme Court of Canada, but that's always the leave application, and most leave applications are denied by the Supreme Court. Therefore, she thought it would be fair that there be a right to appeal to the Federal Court.
Can I get your comments on that?
12:25 p.m.
Commissioner, Office of the Commissioner for Federal Judicial Affairs
I don't know that I have further comment to add, other than that I respect the view of The Advocates' Society in making that recommendation to you, but we are still of the view that the appropriate body to review a decision of a full hearing panel and of council would be the Supreme Court of Canada.
12:25 p.m.
Senior Counsel, Canadian Judicial Council
I'd also add that the proposal would add another layer, and this is what Bill C-9 is trying to cut—all the delays that are, basically, relitigating and rebringing forward those comments from the judge or those procedures from the judge.
Again, I respect the proposal, but it would add another layer, which is counterproductive to what Bill C-9 is trying to do.