Justice Committee on Nov. 24th, 2022

[The Chair, Liberal, Randeep Sarai]

I call this meeting to order.

Welcome to meeting 39 of the House of Commons Standing Committee on Justice and Human Rights. Pursuant to the order of reference of October 31, the committee is continuing its study of Bill C-9, an act to amend the Judges Act.

Today's meeting is taking place in a hybrid format, pursuant to the House order of June 23, 2022. Members are attending in person in the room and remotely using the Zoom application.

I would like to make a few comments for the benefit of the witnesses and members.

Please wait until I recognize you by name before speaking. For those participating by video conference, click on the microphone icon to activate your microphone, and please mute yourself when you are not speaking. For interpretation, those on Zoom have the choice, at the bottom of the screen, of floor, English or French. Those in the room can select the desired channel for their earpiece.

I'll remind you that all comments should be addressed through the chair. For members in the room, if you wish to speak, please raise your hand. If you're on Zoom, please use the “raise hand” function. The clerk and I will do our best to place you on the speaking order.

For your information, all tests have been successfully performed with our witnesses.

Now I would now like to welcome our witness for the first hour.

Appearing today we will have Indra Maharaj from the Canadian Bar Association judicial issues subcommittee. She is appearing by video conference.

You have five minutes, Ms. Maharaj. I will let you know that I use little cue cards. Watch for the cue card for when you have 30 seconds left. When you're out of time, I use this one. Just wrap up, so I don't have to interrupt your train of thought.

We'll go over to you for five minutes, Ms. Maharaj.

[Indra Maharaj, Chair, The Canadian Bar Association - Judicial Issues Subcommittee]

Thank you.

Good afternoon, Mr. Chair and members of the Standing Committee on Justice and Human Rights. Thank you for the invitation to appear before you today. It is both an honour and a privilege to be able to present the Canadian Bar Association's position with respect to the issues raised by the proposed amendment to the Judges Act, Bill C-9.

My name is Indra Maharaj, and I am the chair of the judicial issues subcommittee.

I would like to begin by recognizing that I am attending this meeting from the traditional territories of the Blackfoot Confederacy—Siksika, Kainai and Piikani—the Tsuut'ina and Stoney Nakoda nations, Métis Nation Region 3, and all people who make their homes in the Treaty 7 region of southern Alberta.

The CBA represents lawyers, law students, academics and judges across our entire country, where different first nations have made their homes and stewarded the lands that form our unique and beautiful Canada. I will pause for a few seconds of silence, so that each of us can acknowledge the treaty or traditional territory in our own location.

Thank you.

The Canadian Bar Association is a national association of 37,000 members, including judges, lawyers, academics and students across Canada, with a mandate to seek improvements in the law and the administration of justice. Specifically, with respect to Bill C-9—introduced on December 16, 2021—the Canadian Bar Association submitted commentary to this committee, on February 17, 2022, in support of the amendments proposed.

Among other things, the Judges Act establishes a discipline process for federally appointed judges in response to complaints filed about their conduct. Recent government consultations underscored concerns about the length of time required to investigate these complaints and the consequent costs of investigations, including the potential cost of a member of the bench being unable to fulfill their duties while defending a complaint for misconduct.

The CBA's recommendations are focused on ensuring that the objectives of protecting the independence of the judiciary and ensuring the public's confidence in the administration of justice are respected in the process.

Bill C-9 amends the process through which the conduct of federally appointed judges is reviewed by the CJC in three significant ways: It creates a process for reviewing allegations not serious enough to warrant removal from office; it improves the process by which recommendations for removal are made to the minister; and it ensures that the determination of pensionable service for judges ultimately removed from office reflects their time of service and does not include the time of review, all while ensuring that, if the judge is exonerated, they do not lose the time spent defending the claim made against them.

I have a little more detail.

First, the process for screening complaints that may not be serious enough to warrant removal from office is a positive development. It enhances the Canadian Judicial Council's capacity to respond quickly to allegations of misconduct and provides sanction options in these cases, such as counselling, continuing education and reprimands. This process saves the CJC time, ensures that judicial resources are well managed, and minimizes the amount of time a judge might potentially spend defending a frivolous complaint while not sitting on the bench.

Second, improving the discipline process ensures that meritorious claims are moved forward and department resources are used efficiently. It also promotes procedural fairness and is designed to minimize delays and control costs.

Third, it is critical that judges, like any other litigant, are able to defend their conduct in a fair, transparent process and be satisfied that, if they are ultimately exonerated, their pensionable service will be protected during the period of time dedicated to defending their case. However, it is equally important that time spent during that process does not contribute to pensionable service if the complaint results in removal of the judge from office.

Judicial independence and judicial accountability are both essential to ensuring the integrity of our judicial system, the primacy of the fair administration of justice and the support of the rule of law. If our judiciary is to be respected and trusted, the public must be confident that judges, through a fair and transparent process, are both independent of external influences and held accountable for their conduct on the bench.

Thank you. I'm happy to take any questions you may have.

[The Chair, Liberal, Randeep Sarai]

Thank you, Ms. Maharaj.

Now we will go to our first round of questions, beginning with Mr. Moore for six minutes.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you, Mr. Chair.

Welcome to our committee. We appreciate your perspective and your input from the Canadian Bar Association.

From one of the previous panels we had, we understand.... All parties are supportive of this particular piece of legislation, recognizing that the Canadian Judicial Council has been calling for a more streamlined approach, and that other individuals within the process, including complainants, have recognized that the current approach is dated and cumbersome and there could be unnecessary delays.

When we look at the right of appeal of a decision, we see that there's a mechanism in the legislation to appeal to the Supreme Court of Canada, which seems like a pretty lofty first option of appeal. It was raised by two of our witnesses—and a third concurred on questioning—that it may be appropriate to have a right of appeal to the Federal Court of Appeal.

I'd like to get your thoughts on that in terms of the perception of justice and the rules of fundamental justice. I'm wondering about this idea that a governing body makes a decision and your recourse is an appeal to the Supreme Court of Canada. Are we accepting that because it's judges who are on that panel? If it were another group of peers—if it were doctors, accountants or some other group of peers who were passing judgment on one's conduct—would we accept that the recourse for that individual was just to appeal to the Supreme Court of Canada?

Could you make some comment on that? Also, did you have any thoughts on a right of appeal to the Federal Court of Appeal being injected into the process?

[Indra Maharaj]

Thank you very much for the question.

The particular option that was offered by The Advocates' Society, which was an appeal from the final review panel to the Federal Court of Appeal before an appeal might land with the Supreme Court of Canada, was not an option that we considered specifically, although I have heard some of the other presentations, and they do note that the final appeal panel, prior to the appeal potentially to the Supreme Court of Canada, is composed of senior members of the judiciary as well.

In terms of the fairness or the administrative fairness of that particular process, the concept of where the appeals lie and how they flow through from the complaints process, from the beginning through to the end, appears to be considered.

With respect to the CBA's position, we have confidence in the consultation that has been done by the government in this regard. It has been extensive. The result of that consultation is the bill that's before you, and we do support that bill.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you.

I think that by and large I would agree. This is legislation that was called for, but in light of this testimony that we've heard, it does raise the prospect: If your recourse is an appeal to the Supreme Court, is that real external judicial oversight? Is that realistic? I don't know if there's any analogous scenario in any other field. The consequences are severe: being removed from the bench and losing one's pension.

In your mind, should it matter that the people on that final panel are judges? Is that why we would be letting it slide in this case, in that we're dealing with judges passing judgment over a peer versus some other group that has a peer discipline model?

[Indra Maharaj]

Thank you for the question.

I would hesitate to say that an appeal to the Supreme Court of Canada is allowing it to slide by if there's no appeal that precedes it that's external to the process. However, I would refer back to the fact that the judges were consulted with respect to the process, and the result of that consultation did not generate an additional level of appeal. All I can conclude from that is that it was not an issue of concern to the bench.

[Rob Moore, Conservative, Fundy Royal, NB]

Okay. Thank you.

I only have 30 seconds left. Do you have any quick comment on the current system, in which there are undue delays?

What do you see as the key to Bill C-9? Is there on overarching feature that you feel, if there were to be amendments, we definitely want to stick with?

[The Chair, Liberal, Randeep Sarai]

Answer very briefly. You have 10 seconds.

[Indra Maharaj]

Thank you.

The fact that the process has been streamlined in order to ensure that the process moves upward and forward, rather than delayed laterally, is, I think, the primary goal in the amendment that's been produced.

[The Chair, Liberal, Randeep Sarai]

Thank you, Mr. Moore.

Now we'll go to Ms. Brière for six minutes.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

Thank you very much, Mr. Chair.

Good afternoon, Ms. Maharaj. It is a pleasure to have you here this afternoon.

Bill C‑9 introduces a process for reviewing allegations that are too insignificant to warrant the removal of a judge. In your letter to the committee chair, you wrote that the allegation screening process is a step in the right direction.

Is it a small or a big step?

In your view, is it right for a review panel to look at less serious complaints rather than having a member of the Canadian Judicial Council do the review?

[Indra Maharaj]

Thank you for the question.

I believe this is a significant step forward, because what it will allow the process to focus on is the most serious of allegations that deserve an in-depth and thorough process.

As one of the speakers in a previous panel indicated, there are often complaints that are made against members of the bench out of frustration with the result, rather than actual misconduct by a sitting judge. It's important that those types of complaints are reviewed and assessed to ensure that there is no misconduct, but that they don't bog down the workings of the Canadian Judicial Council.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

Do you think that the sanctions that are listed and those that can be thought of under Bill C‑9 in response to complaints that are less serious are justified or worthwhile?

[Indra Maharaj]

Thank you.

The sanctions that are proposed for the less serious matters—such as counselling, continuing education or a reprimand—are sanctions that are designed to be proportionate to the severity of the claim. Giving those options or making those options available creates a certain flexibility in ensuring that the process responds fairly to the complaint and to the conduct of which a judge is accused.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

In 2014, you made a submission to the Canadian Judicial Council, in which you made 16 recommendations.

One of them was to ensure that the complaints process for judges meets the objectives of balancing judicial independence and public confidence in the administration of justice.

Do you believe that Bill C‑9 achieves this objective?

[Indra Maharaj]

Thank you.

We do feel that Bill C-9 meets the objectives set out in our recommendations. It provides a process that is responsive to the various types of complaints that could be made. It's also responsive to the complainants' involvement as well as the judges' entitlement to defend themselves should they be accused of misconduct. What Bill C-9 does is create a better balance than what we had before.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

In your opening remarks, you spoke of the delays and costs involved, including those related to not allowing the judge who is the subject of the complaint to perform his duties.

How should this situation be addressed?

[Indra Maharaj]

Thank you.

Yes, we believe it does, because the bill creates a process that must move forward. In fairness, some of these delays and some of the mischief that the bill is trying to correct are in the gray zone that previously existed, whereby every decision of the CJC in a disciplinary matter could be subject to judicial review, which could be subject to an appeal, which could be subject to further appeal. By streamlining the process, it becomes more fair and it responds to the concerns about the cost of the process because it must move forward.

If a judge is not allowed to sit on the bench while there is a question about his conduct, then you can be assured as a member of the public that this will get addressed and that the judge is not utilizing the process in order to create a situation where they're not working but getting paid, and off they go and continue to proceed down the lateral route.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

Thank you very much.

[The Chair, Liberal, Randeep Sarai]

Thank you, Ms. Brière.

We'll next go to Mr. Fortin for six minutes.

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

Thank you, Mr. Chair.

Ms. Maharaj, thank you for joining us this afternoon.

I would like to raise with you the issue of sanctions. As my colleague Mr. Moore said, the parties will probably support this bill in the House, but there are still some interesting issues to look at, including the economics of this. That is what is being criticized the most.

When a judge is found guilty of some kind of misconduct and a penalty is imposed, people will often respond by saying that it cost hundreds of thousands of dollars in court costs, in addition to the judge's increased pension and salary. I understand that there are provisions in Bill C‑9 that provide for some adjustments when the judge is convicted, but the issue of legal fees remains important to me.

In your view, would it not have been appropriate to adjust Bill C‑9 so that a judge found guilty of a breach would be required to reimburse all or a significant portion of legal fees, in order to stem the tide of challenges, which can often appear unnecessary and merely dilatory?

[Indra Maharaj]

Thank you very much for that question.

The concept of having a party who is found to be unsuccessful in litigation compensate somebody for the legal costs of having engaged in the process is not one that's unknown in the litigation field. However, what is different about this particular scenario is that this is not litigation between two people; this is a disciplinary process. The question about the fees that are compensated for, or the fees that are paid on behalf of the judge who is defending their conduct, is something that we haven't considered in detail at the CBA. I believe it is a recommendation that one of the other panellists has made.

At this point, I can't really comment further on it.

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

Thank you.

I understand the distinction you're making between what we're talking about here and a civil suit, where the judge has certain powers in the event of frivolous recourse, such as awarding costs. I understand that disciplinary measures are an entirely different matter. The fact remains, however, that it's an aspect of cases like this, which get the public talking, and which I believe are sufficiently important.

I asked the various witnesses we received, including the Minister of Justice, about this. That's why I would like to hear the Canadian Bar Association's opinion, because you play an important role in terms of discipline for lawyers who are members of the various bar associations in Canada. I'm also somewhat surprised to hear you say that you didn't really have an opinion about this. If that's the case, then I'll leave things there. On the other hand, my question may not have been as clear as I would have liked, and I will reword it. If you have an opinion to express after that, I'd like to hear it.

Would it not be interesting, useful, or even essential, for a judge found guilty of misconduct, to be required to suffer the consequences, and be personally responsible for at least part of the legal fees for the defence in a case like that?

[Indra Maharaj]

Thank you.

Let me see if I can be a bit more concise. The consultation that has occurred has not resulted in compensation of legal fees paid on behalf of a judge involved in a disciplinary process rising to the level of needing to be included in Bill C-9. That, to me, does not preclude an appeal panel's making of a decision that may be different. However, that being said, the CBA hasn't taken a position specifically with respect to this issue.