Justice Committee on Nov. 24th, 2022

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

Thank you.

I'm going to address a completely different subject. According to you, could mediation between the Canadian Judicial Council and a judge be a useful step prior to a hearing in the event of an alleged breach by that judge?

[Indra Maharaj]

Thank you.

I'm not sure I understand the question. Did you ask about the mediatization of the CBA and the judge?

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

No, I'm not talking about the Canadian Bar Association, but mediation between the Canadian Judicial Council and the judge in question.

[Indra Maharaj]

The particular case that seems to have triggered some of the amendments was the Girouard case. Is that correct?

[The Chair, Liberal, Randeep Sarai]

Unfortunately, we're out of time.

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

That's a good example, but we're out of time.

Thank you, Ms. Maharaj.

[The Chair, Liberal, Randeep Sarai]

Next we'll go to Mr. Garrison for six minutes.

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

Thank you very much, Mr. Chair.

Thank you, Ms. Maharaj, for being with us today representing the Canadian Bar Association. I think you captured very succinctly the challenge here that Bill C-9 is trying to meet, which is to balance the independence of judges with public confidence, but I would also add the rights of those judges who are being disciplined.

I want to return to the question of an effective appeal. We know the Supreme Court has set a very high bar for granting leave to hear cases and that these cases must in fact, in common language, be of national significance or national importance or constitutional importance before they'll actually be heard. I'm wondering, in that case, how often we could expect that the Supreme Court would actually hear appeals from this process, given that very high bar they've set.

[Indra Maharaj]

I think everybody in the room would hope that the answer would be “never”, because hopefully we don't have judicial misconduct that needs to be considered at a level of national importance. The reality is that the Supreme Court of Canada has limited time available to it, and it is selective about the cases it must allocate that time to. That's why the leave process is there. One of the other panellists provided some information earlier about some statistics around the number of cases where leave is sought, and where leave is actually granted.

Having a very high bar at the Supreme Court of Canada does support the fairness of the process, because it creates that ultimate authority. The Supreme Court of Canada is that ultimate judicial authority where a case could end up, should it be justified, should it be of such substantial importance that the Supreme Court of Canada ought to contribute its wisdom to the case.

Prior to that being granted, the levels of reviews contained in the process set out in Bill C-9 provide a robust and significant opportunity for all issues to be heard and adjudicated fairly, in the position of the CBA.

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

To be clear, I meant no criticism of the Supreme Court of Canada for having that high bar for hearing cases. That is, obviously, necessary in terms of managing the work of the Supreme Court of Canada, and the integrity of the system.

However, once you say that, you are actually saying that the individual judge has no appeal from this internal process that is being run by the Canadian Judicial Council, so there might, in fact, be a miscarriage of justice there that isn't of national significance or constitutional significance but might still be a real miscarriage of justice.

I think that is why The Advocates' Society was suggesting that an effective appeal would be to the court of appeal.

[Indra Maharaj]

I think there is a question in between the lines there. I believe the answer that you're seeking is whether the CBA aligns with The Advocates' Society on the recommendation.

I can tell you that the CBA has confidence in the consultation, which included members of the bench and the Canadian Judicial Council, and which did not result in the need for an additional level of appeal.

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

Maybe what is between the lines for all of us here is that when we talk about the review panel process, we say, well, it's judges, but, with respect, it is judges fulfilling a different role than an appeal judge would fulfill.

In other words, the Canadian Judicial Council is bringing disciplinary proceedings, investigating them, and deciding, so there is really no one outside that in-house process who will have an effective say over whether that is, in fact, fair, if there isn't an effective appeal to something like the appeal court.

[Indra Maharaj]

I'm not sure if you wanted me to respond to that specifically. Is there a question?

[The Chair, Liberal, Randeep Sarai]

Mr. Garrison, could you repeat the question?

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

It did have a question mark at the end.

Aren't we talking about two different roles of judges? Judges in their Canadian Judicial Council hat are playing a different role from what a judge on an appeal court is playing, even though we call them both “judges”.

[Indra Maharaj]

Thank you for the clarification.

I appreciate that there is a difference. However, when the judges, and the members of that whole review panel, are sitting in that capacity—remember there are also lawyers and lay members there—there is a broad and diverse opportunity for there to be consideration of the merits of the case.

The CBA supports the process that has been set out in Bill C-9 because, in part, of the depth of consultation of the affected parties that it has undergone. While it's an interesting concept, the purpose of Bill C-9 is to remove levels of procedural duplication and to ensure that the core fundamentals of administrative fairness are met. We believe that that is the case with Bill C-9.

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

Thank you very much.

[The Chair, Liberal, Randeep Sarai]

Thank you, Mr. Garrison.

Next, we'll go to Mr. Caputo for five minutes.

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

Thank you, Mr. Chair.

Thank you, Ms. Maharaj, for being with us here today. It's not easy being the lone panellist here who's getting rapid-fire questions from a number of MPs, so I appreciate your being here.

I'm going to pick up where Monsieur Fortin left off. Perhaps I could frame what I perceive to be his question a little bit differently.

I think in most law societies, in British Columbia anyway, if a person is sanctioned by the law society and the complaint is meritorious—or founded, if you will—then there are often costs assigned against that lawyer. I'm not sure if that's what he was getting at, but from what I can see, that's not an option here.

Can you comment on whether that might appropriate in the circumstances?

[Indra Maharaj]

Thank you for the clarification.

I can comment on the bill that's been provided and the fact that not every administrative step needs to be included in legislation. There are practices and procedures within any administrative tribunal where the issue that you've addressed may become something that is more logically lodged—it may sit better in an administrative process.

The CBA has taken a position with respect to the bill presented. As it does not include that particular concept, I can't make any further comment about it. However, not every small step is included in legislation.

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

Thank you for that. I think I know where you're coming at it from.

Often we get into a pattern of comparison. For instance, a fine is frequently part of a lawyer sanction as well. That's not present here from what I can see, either, so I assume that if I was to ask you that question, we'd probably get the same answer as your previous answer.

[Indra Maharaj]

Yes, you would, sir.

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

Thank you.

Can I ask you a question about transparency generally? Transparency is a really big issue. It's obviously central to the rule of law. We have an open court principle generally, and in my view transparency must be sacrosanct.

Do you view Bill C-9 as being appropriately transparent, not transparent enough or too transparent? Do you have any thoughts on that?

[Indra Maharaj]

That's an interesting question. I think the change to include lay members on the hearing panels adds a significant amount of transparency to the process. The fact that we will have the point of view of the public is valuable in that regard. Certainly, public hearings are public hearings, so that creates an amount of transparency as well.

I do believe that Bill C-9 has tried to seek and establish that balance between those matters that are smaller and may not require being made public because they can be addressed through the screening process versus those matters of more significance where we start to see a more formalized administrative process and hearing process. I think the involvement of the public in particular—the lay members—is a valuable addition.

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

I have about 45 seconds here, so I will just ask you this very briefly.

You're on the ground. You're likely involved in all sorts of committees—that's what people in your position often do. Is it your sense that there was adequate consultation in respect of this bill?

You have 30 seconds.