Justice Committee on Nov. 21st, 2022

[The Vice-Chair, Conservative, Rob Moore]

Thank you, Mr. Van Popta.

Madam Diab.

[Lena Metlege Diab, Liberal, Halifax West, NS]

Thank you very much, and thank you to both of you for appearing today.

In your opening statement, you said there are 44 positions—so we're talking about federally appointed judges. I would like to go back to the question I asked earlier. What are the types of complaints that we are receiving today? With regard to the people who are complaining, I'd like to know what it's about, and how difficult it is for them in terms of cost. I guess one aspect would be that we're trying to streamline the process to reduce time and make it more efficient, while also safeguarding the impartiality and independence of judges, which is so important.

On the other hand, I guess, if we look at the last number of decades, what kinds of complaints do we receive?

[Marc Giroux]

Again, if you'll allow me, Ms. Diab, I'll start and then ask Ms. Corado to follow up as required.

There are more complaints made nowadays than in past years, and that is not surprising in light of people's being more informed about their rights and having access to various information. There are more judges, as well. Last year, there were over 600 complaints; the majority of those were maybe excluded or dismissed by the executive director. The reason is that many of those are often related to matters that should be appealed and are not related to the conduct of the judge. Those are a lot of these cases, and a lot of these cases, as well—or complaints, I should say—are in the area of family law, where passions are high. The issue of access to children is, obviously, a very sensitive area, and people may well be very upset with any decision that may be rendered that does not please them.

Some other complaints are simply frivolous or illegible; we receive some anonymous complaints as well. Those that make their way up to a member of the conduct committee, then to a panel and, ultimately, to what exists now as an inquiry panel are, obviously, some very concerning issues for the council. Council takes great pride in ensuring that the judiciary across Canada can be respected—that public confidence in the judiciary is maintained—so it takes very seriously any complaint that may raise issues about that public confidence.

There are not a lot of them, but they certainly make more headlines than others, and that is certainly fair. I guess the point I'm trying to make is that these are stand-alones at the end of the day. The majority of the complaints that we receive, as I said, may often be dismissed at an earlier stage, and you hear more about those stand-alone issues.

[Lena Metlege Diab, Liberal, Halifax West, NS]

I appreciate your comments, and I know you were both in the room when the first panel were giving their evidence. I appreciate your comments on The Advocates' Society and its recommendation.

Can you, briefly, with the time that we have, tell me...? You also heard from Mr. Scott and his recommendations, as well as from Professor Devlin from the Canadian Association for Legal Ethics. Can you tell us your view on those recommendations?

[Marc Giroux]

Is there a specific one that you would like us to comment on?

[Lena Metlege Diab, Liberal, Halifax West, NS]

There were some we couldn't even get to because of the timing and the audio and so on. I guess there were a couple that you heard. Professor Devlin was saying that there are so many more values that so need to be protected, but that he feels are not in the bill. Generally, he's okay with it, but there were a couple of other things he was concerned about.

[Jacqueline Corado]

As per the values, the ethical principles were reviewed very recently to adapt to the evolution of times and the landscape of the law. All those values are included in our ethical principles. Bill C-9 is more about remedies and tools when there is a case that deserves the attention of council.

I will bring you back to my initial comments that security of tenure is protected by the Constitution. For something that is so protected and important in our society for the democracy of this country, the reasons for removal have to be very serious.

The process now needs to be streamlined, and this is what Bill C-9 is intended to do. As for other comments that were brought—

[Lena Metlege Diab, Liberal, Halifax West, NS]

How about the specific one that there's not enough attention to the rights of the complainants?

[Jacqueline Corado]

Thank you.

I'm glad you asked that question, because currently our procedures provide that a complainant will be advised when the disposition of the complaint is done. We have to remember here that this is a very unique process. I think there is confusion about how that process works.

This is not a statement of claim that's filed before the court while the person who files the statement of claim is a party to the proceedings. This is a disciplinary proceeding. There's a body that's mandated to look at it, and that is council. Council has that expertise and that purview to decide what is a violation of section 99 of the Constitution.

When a complainant files a complaint, they are not a party to a proceeding. Council will take that on. Council's mandate is the search for the truth, and council will do inquiries. There's extensive case law with regard to the rights of the complainants and the duty of procedural fairness for them.

Just to name a few, there's Slansky, from the Federal Court of Appeal, which provides for the transparency and the rights of the complainant, because they don't have standing. Subsection 63(2) of the Judges Act does not give standing to complainants. There is also Cosgrove, from the Federal Court of Appeal, which talks about the publicization and confidentiality of complaints. There are many more. Unfortunately, I didn't hear any case law being mentioned this morning, but there is extensive case law to that effect.

The rights of the complainants are protected. The duty of fairness is protected and the rights they have are very minimal, because we are not in an adversarial mode.

[The Vice-Chair, Conservative, Rob Moore]

Thank you.

Now, for six minutes, we will move on to Mr. Fortin.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

Thank you, Mr. Chair.

Thank you to the both of you for being here today. This is indeed an important bill, so the Canadian Judicial Council's view is obviously of the utmost importance. I'm glad that you're both here.

The case involving Judge Girouard came up earlier. It's one that can't be ignored. It would be nice if we didn't have to talk about it, but it has captured the attention of the media and the entire judiciary in recent years.

Far be it from me to say that judges should not be allowed to appeal or challenge the council's decisions. That's probably true for everyone. Nevertheless, the process has to have some limits, and I think that's what Bill C‑9 seeks to do. However, it does not set any limits on something that keeps coming up in the public space, legal costs.

I don't want to get into the specifics of the case I just mentioned, but abuse of process not only delays the proceeding, which has costly salary and other implications, but also results in considerable legal fees. One question keeps coming up. If the judge is found guilty and the decision is warranted, why wouldn't the lawyers' fees have to be repaid, at least for the judicial process? It might be possible. It might not. Could the judge be made to repay all or some of the legal fees if proceedings were found to be unnecessary or frivolous? I don't know.

Have you explored that possibility?

I'd like to hear from Mr. Giroux and, then, Ms. Corado.

[Marc Giroux]

You raise a specific issue that I think clearly illustrates why Bill C‑9 is needed. The multiple requests for judicial review meant that the process dragged on for nearly seven years, resulting in significant legal costs. There were also costs associated with the council's having to address those requests for judicial review.

I would point out that the bill does set some limits, for instance, when it comes to calculating the judge's annuity. The period used to calculate the annuity ends when the council recommends that the judge be removed from office in a report submitted to the Minister of Justice. That's one thing.

Obviously, Bill C‑9 does not provide for judicial review. It is stipulated, however, that the judge's legal fees will not be paid in cases in which a judicial review is requested. The Office of the Commissioner for Federal Judicial Affairs has a budget to cover the legal fees of judges, and the money is used only for that. Every year, we have to request that funding from the government, if necessary.

Bill C‑9 takes that into account so we don't have to go through that exercise every time. We are bound by the rates set by the Department of Justice for the retaining of legal services. Bill C‑9 also mentions the commissioner for federal judicial affairs, legal fees and the fact that we basically have to take into account what the government provides for in terms of legal fees. If we have to deviate from that, we are required to indicate why.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

When a case involving sanctions against a judge is heard by another judge, couldn't that judge choose to order that costs be paid? After all, that would be similar to what judges do in civil cases when they find proceedings to be frivolous or to constitute an attempt to delay the process.

[Marc Giroux]

If I understand your question, you're asking about taking away access to legal fee coverage so that a judge subject to sanctions would not have their fees covered in those circumstances.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

I'm even talking about ordering the judge to reimburse the government for fees.

[Marc Giroux]

I know there was a discussion about how that's handled in provincial regimes. I also know that the Department of Justice cited the Federal Court of Appeal's decision in Bourbonnais v. Canada, whereby a judge is entitled to payment of their legal fees when they are the subject of a complaint. Again, I would add that payment of those fees is subject to the rates that must be adhered to.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

Thank you.

Mr. Scott was in the previous panel, and he talked about a fairly recent decision in Ontario, I believe, whereby a financial penalty had been imposed on a judge. I can't say for sure, but I think it was two months' salary or two months in the pension calculation. The reason the judge was penalized was that he had a “Make America Great Again” hat sitting on his desk during a hearing.

Are you familiar with that decision? What is your view?

[Marc Giroux]

I'm not really familiar with that decision. I heard about it, but only anecdotally.

Basically, judicial independence has three attributes: institutional independence, job security—I know that's not the right term because it's also about appointments—and financial security.

Although I haven't examined the issue carefully, it seems to me that holding back a judge's salary would go against one of the core principles of judicial independence.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

Thank you, Mr. Giroux.

[The Vice-Chair, Conservative, Rob Moore]

Thank you.

You'll note, colleagues, that the bells are ringing, but we have a bit of time before the vote. If it's okay with everybody, we'll turn it over to Mr. Garrison for six minutes.

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

Thank you very much, Mr. Chair.

I'm the one who's never okay with proceeding when the bells are ringing, so I think perhaps we should enforce that, even when it's my own ox that's being gored today.

I would prefer that we adjourn.

[The Vice-Chair, Conservative, Rob Moore]

Well, we need unanimous consent to continue, so if we don't have that—

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

I'm not giving unanimous consent for me to continue.

[The Vice-Chair, Conservative, Rob Moore]

It was good of you to do that before your question and not after.

[Voices]

Oh, oh!