Thank you, Mr. Chair.
Good morning, members of the committee.
Since I don't have a lot of time, I will goright to my findings, but I would be glad to elaborate on them or anything else during the question and answer portion.
Let me now begin by noting that my organizing theme is that Bill C-9 falls quite short when it comes to how transparency fits into the accountability of the judiciary in the face of reasonable concerns of misconduct.
The only decision made public under either the current or the new Bill C-9 system is the decision at the final stage: the report of what is now the panel of inquiry and will be one of the two kinds of hearing panels.
In this regard, my central concern for my remarks is how Bill C-9doesn't disturb the practice of the Canadian Judicial Council, the CJC, of hiding from view two other kinds of decisions and their accompanying reasons. Indeed, Bill C‑9 actually increases the level of secrecy of these two kinds of decisions.
One kind of decision and set of reasons that are not made public in ordinary course are known as “reasons for referral of a complaint to a panel”. Under the current system, it's the vice-chair or the chair of the judicial conduct committee of the CJC who sends them on to the review panel.
Under Bill C-9, if that's going to continue, it would be the reviewing member who would be doing that. To give you a sense, in a recent CJC proceeding in which I was a complainant, this consisted of nine tightly reasoned single-spaced pages.
The second kind of decision that doesn't get published is known as the “report of the review panel”. In the above proceedings in which I was involved, that report was 13 double-spaced pages.
If they're not published, how is it that I know what's in them and how long they are? Forgive me: I might be going overboard, but this is where Kafka comes in.
Let me explain myself. When a review panel finds there's insufficient basis to send a complaint on to a full hearing panel—currently, to a panel of inquiry—the executive director of the CJC sends a letter to these complainants. It purports to give the gist of the review panel's reasonings. That letter can be well or poorly put together. It's not written by the review panel itself.
For the complainants, this is the point: The letter is the decision. That is all they have to go on. If they feel the reasoning in the letter does not stand up to some reasonableness standard, then they can seek judicial review in the Federal Court, only, of course, after having found a lawyer able to do it for the funds the complainants are able to scrape up for a judicial review.
Thus, it is only through citizen initiative in the form of a judicial review application to the Federal Court that the above sets of reasons can become public. This happens because the CJC is bound by the rules of judicial review procedure to disclose to the applicants all relevant documents, which then form part of something called “the certified tribunal record” of the court.
Even then, when the matter gets to the pleadings stages, the lawyers for the CJC effectively tell the applicants who were the complainants: “You know the reasons in the letter that you received and that were the basis for you to seek review? Forget those. That's not actually the decision. The review panel decision is the decision, and now that you've forced its disclosure, that is what you must now convince a judge is unreasonable.”
So it is that complainants must go to court to challenge an unreasonable decision before they have access to what the CJC lawyers tell them is actually the decision. As I said, there's just a bit of Kafka there.
Nothing in Bill C-9 would change this situation. By analogy to the regular court system, it's as if Parliament and the CJC were keeping from prying public eyes the judgment of a motions judge—here, the reviewing member's reasons are the analogy—and the judgment of a trial judge—here, the review panel—with only the judgment of a court of appeal—here, the reduced or full hearing panel—being made public.
Open courts and published reasons are how we approach judges judging others. This of course includes cases where the impleaded person is partly or wholly successful. In the regular system, we don't fail to publish a decision because the defence prevailed, but somehow, when judges judge judges, it's only when we get to this third—in the new Bill C-9 system—appellate stage that we can see the reasons.
Consider what the situation means in the context of one of the big improvements made by Bill C-9, a really big improvement: the inclusion of a wider range of remedies that are available at the review panel stage in the new proposed section 102 of the Judges Act.
However, and along the line of my theme, because the review panel decision stays secret, the public will be little the wiser about exactly why no misconduct was found, if that turns out to be the case; why misconduct was found but characterized in a certain way; why it was of a certain gravity but that was not enough for it to go on to a full appeal hearing; or why a particular remedy was chosen over any of the others in the new section 102.
I'm getting towards the end.
With respect to review panel reasons, Bill C-9 goes on to make matters worse still. You may have heard testimony on why it's there. I find it hard to explain why it's there. Bill C-9 bars reduced hearing panels and full hearing panels from considering review panel decisions and reasons. It also bars the full hearing panel from considering the reasons of the reduced hearing panel. I don't see how that is justifiable.
Our judicial system—and, indeed, our entire approach to the rule of law—depends on the giving of reasons by the judiciary and the publication of those reasons, so the legal profession, public scholars and legislators can understand, apply critique and reform the law. As well, one key way in which judicial reasoning can be relied on to generally produce better results as you go up levels, is in each subsequent court having the benefit of the factual interpretations and legal analysis of preceding levels, which they can refer to, discuss and weave into their own judgments and reasoning in some integrated fashion.
With that, Mr. Chair, I will end, as I know I'm coming up to time. There are a number of interconnected arguments. I have arguments about how we should understand the administrative law of judging judges, and why this has undue secrecy built in for judges, but perhaps I can bring those out in the question period.
I also have a set of specific recommendations for amendments to new sections 97, 103, 111 and 118, and I would suggest adding two more new sections—161 and 162. They're in my written brief, which is not yet available and can't be circulated until it's fully translated. That will take place within a couple of days, hopefully.