Justice Committee on Nov. 24th, 2022

[Indra Maharaj]

Thank you.

I think it is interesting to note that the bill was presented almost a couple of weeks short of a full year ago. During that time, all of the major legal agencies, if I can put it that way, were consulted. I'm sure that numerous members of the public had an opportunity to participate as well. I believe that the consultation has been very robust with respect to this bill.

Certainly, with the CBA, we had opportunity to make our views known and to contribute. We appreciate that very much.

When I look at the breadth of consultation, I think it is proportionate to the importance of this particular amendment.

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

Thank you.

[The Chair, Liberal, Randeep Sarai]

Thank you, Mr. Caputo.

Now we'll go to Mr. Naqvi for five minutes.

[Yasir Naqvi, Liberal, Ottawa Centre, ON]

Thank you very much, Mr. Chair.

Welcome, Ms. Maharaj. Thank you for going through all these questions. I really appreciate your thoughtfulness.

I want to pick up on your last comment. You're right; the bill was tabled some time ago, and people have had the opportunity to look at it and reflect on what's contained in the bill.

In your personal opinion or on behalf of the Canadian Bar Association, do you feel, now that you have seen this bill in detail, that it really addresses the concern around having a fair, open and transparent system in dealing with issues relating to judicial conduct?

[Indra Maharaj]

Yes, the CBA does support this bill. We support it because we feel that it has gone through the mill and that it does create a balance between respecting the public's need to have confidence in the judiciary and the judge in question's ability and entitlement to defend himself in a fair and transparent process. Yes, we agree.

[Yasir Naqvi, Liberal, Ottawa Centre, ON]

Thank you.

As we are deliberating on this particular bill, I'm of the view—and I've presented the position before in this committee—that a process around judicial conduct is a bit unique, unlike other administrative, tribunal dispute resolution processes, especially given that we're dealing with the judiciary.

There is a very important principle around maintaining and protecting the independence of our judiciary. Any system that is crafted must instill, enhance and foster the public's confidence in an independent judicial process.

Do you think, in CBA's assessment, that Bill C-9 as presented accomplishes that important goal?

[Indra Maharaj]

The goal of judicial independence and the value of judicial independence cannot be diminished if we are going to have a strong and functioning judiciary.

This bill does support the duality of the role of judge insofar as a judge must serve and a judge commits to serve. The exchange for that is that, if they make a mistake, because judges are human, there's a fair process whereby that mistake of conduct can be examined.

Given the screening process and the new review process, the balance of ensuring that the judge feels they have an opportunity to address complaints made against them in a fair and transparent way while still preserving the public's confidence that judges are being held accountable for misconduct in an appropriate manner is a very delicate balance. In fairness, it's a delicate balance.

The bill seeks to achieve that balance, and we believe it successfully achieves that balance.

[Yasir Naqvi, Liberal, Ottawa Centre, ON]

Thank you.

We have the issue, of course, of maintaining and protecting the public's confidence in the integrity of a judicial system. You spoke to that. The balancing act around that is also to ensure procedural fairness and principles of natural justice as they relate to the respondent and the complainant or the applicant.

Has the CBA done any analysis around whether this bill ensures procedural fairness and the principles of natural justice? Are you comfortable that those key principles are also well protected in this bill?

[Indra Maharaj]

Through the various consultations with CBA members, sections, and different aspects of the CBA—it's a very complicated organization—we have had the opportunity to consider whether the principles of natural justice and fair process are being respected by the procedures that are set out in the bill.

We do believe this is a fair bill. It balances the rights of all concerned parties, including the judge, the complainant, and the public.

We do believe there has been fair consideration given, and we have had a fair opportunity to make our views known and to compile our position—together, there are 37,000 members—on behalf of the Canadian Bar Association that we do support the bill.

[Yasir Naqvi, Liberal, Ottawa Centre, ON]

Thank you.

[The Chair, Liberal, Randeep Sarai]

Thank you, Mr. Naqvi.

Next we'll go to our third round.

Mr. Fortin, you have two and a half minutes.

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

Thank you, Mr. Chair.

Ms. Maharaj, I'd like to return to the question of mediation, which we didn't really have enough time to discuss in the first round of questions.

Although, of course, there can still be discussions about the rules, the disciplinary process does not provide a mediation mechanism. Would it have been a good idea to consider formal mediation meetings between the judge against whom there has been a complaint and the representatives of the Canadian Judicial Council to try and find a negotiated outcome?

I think that the new provisions in Bill C‑9 might encourage judges to try and avoid a trial or a hearing before the Canadian Judicial Council.

Do you feel it would have been a good idea to provide for a mediation mechanism like that?

[Indra Maharaj]

I think I understand where I was confused before.

I believe, Mr. Chair, that Mr. Fortin is asking a question about a mediation or an alternative dispute resolution process that may precede a more formal process. I was hearing “mediatization” and thinking media and publication.

[The Chair, Liberal, Randeep Sarai]

I think you're correct. I think in interpretation it was just the pronunciation of the word.

Go ahead.

[Indra Maharaj]

Thank you.

Alternative dispute resolution is not included as an obligation in Bill C-9. As a preliminary step, there doesn't appear to be, in my mind, anything that would preclude a conversation towards an alternative dispute resolution or a mediation-style resolution, particularly with respect to the screening level of complaint.

With respect to serious misconduct that could result in removal, I don't know that mediation would be something that would be valued by all of the parties involved, so I can't comment on that.

I don't see in the bill that there is a requirement or an opportunity for mandatory mediation, but that doesn't preclude it from being a practice or a procedure at a more administrative level.

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

Thank you, Ms. Maharaj.

[The Chair, Liberal, Randeep Sarai]

Thank you, Mr. Fortin.

Last is Mr. Garrison for two and a half minutes.

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

Thank you very much, Mr. Chair.

There was another issue raised in our first session on this bill, about the disclosure of the reasons for referral to a review committee and the legal reasoning that was used to reach a conclusion in the review panel.

In the current practice—and it seems it would be the same under Bill C-9—the complainants are only given a summary of reasons. They're not actually given the legal reasoning. The argument was made that you only get to see those once you file, as a complainant, an action for judicial review. That is costly, but it also results in the automatic release of those to the person.

The suggestion was made that we, perhaps, should amend Bill C-9 to ensure that those reasons are released at an earlier stage. That might, in fact, prevent people from deciding to ask for judicial review. In order to see the reasons now, they actually have to ask for a judicial review.

I wonder if the Canadian Bar Association has any comment on that kind of paradox—I don't know what I would call it—that gets created there: that if you want a review, you can't see the reasons until you ask for the review.

[Indra Maharaj]

Thank you.

That is the definition of a paradox.

In terms of the CBA's position, the complainant gets a summary of the reasons. That's the way it's set up in the bill right now.

Is there potential for there to be an earlier disclosure, or a more detailed disclosure? Perhaps. However, at this stage, it's not something that the CBA has identified as necessary, and it has not come out of the consultation and resulted in a place in this bill as being of significant importance such that it ought to be legislated.

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

In your opinion, could the Canadian Judicial Council require that earlier disclosure in their own internal standards for conducting the judicial reviews? In other words, might it be possible that it could happen without putting it in the legislation?

[Indra Maharaj]

That's a very interesting question. Unfortunately, I don't have an answer for you on that. I would have to be more familiar with the CJC's internal administrative processes to give you a fulsome answer.

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

Okay.

Thank you very much, Mr. Chair.

[The Chair, Liberal, Randeep Sarai]

Thank you, Mr. Garrison.

Thank you, Ms. Maharaj. I want to thank you for appearing as a witness. You have given wholesome testimony and had a lot of questions thrown at you, so it's a job well done.

We will now suspend for a few minutes while we set up for the next panel. We will ask the next set of witnesses to come forward, and we will ask those on Zoom to get their audio checked.

The meeting is suspended.

[The Chair, Liberal, Randeep Sarai]

We'll now resume the committee meeting for the second half.

We now have, as an individual, Mr. Christopher John Budgell. I just want to say that I'm pleased to also welcome Pamela Forward, who will assist him due to his hearing impairment. Ms. Forward, please accept our warm welcome as well. Let us know if, during the meeting, you need anything. Our clerk will be happy to help.

Members, when you're asking questions, be loud and clear, as the hearing mike will not be helpful to Mr. Budgell, as he has told me. We'll give some extra time, if we need to, to clarify anything in that regard.

We also have Ms. Karine Devost, senior legal counsel for the National Council of Canadian Muslims. Welcome. Via video conference, with us is Nneka MacGregor, executive director of the Women's Centre for Social Justice.

I'll begin with Mr. Budgell, for five minutes, and then we'll go to the other two witnesses. Then there will be rounds of questions.

It's over to you, Mr. Budgell, for five minutes.

[Christopher Budgell, As an Individual]

I'm just going to read my opening statement. I hope it is short enough to leave me with a little additional time.

From the record that I've been able to review so far, it appears that I'm the first witness, and maybe the only witness, the committee has heard from who is not a system insider. I note that you've heard from a couple of them, Professor Craig Scott and Professor Richard Devlin, who are telling you things you haven't heard from Justice Minister Lametti and his Department of Justice staff.

I am here solely because of my determination to be here. Where are the other voices speaking for the public?

I know that you haven't heard from any of the judges who are, or were before they retired, subject to the Judges Act.

My immediate purpose in speaking to Bill C-9 is to argue that it should not be enacted because it cannot be fixed.

I can go beyond that. You, the members of this committee, have a golden opportunity. The legal establishment's own dialogue, a good deal of which is accessible to the public, attests to the fact that Canada's justice system is in crisis. Perhaps that is “justice systems in crises” because there are many components and many issues.

If you proceed now to recommend to the House of Commons that it pass Bill C-9 and send it on to the Senate, you'll have missed a precious opportunity. The CJC perfectly illustrates the crisis or crises that the legal establishment is facing. The ship that is crewed by the legal establishment needs to be turned around to face the bow into the wind. This is an opportunity to start turning that ship around.

The publicly accessible record of the legal establishment's dialogue with itself shows that a principal concern, if not the principal concern, is the impact of these crises on lawyers, including judges themselves. Two sources I can note are The Lawyer's Daily, which is an excellent publication that has served the legal profession for years, and the blog slaw.ca. There have been many articles and posts about the stresses that lawyers and judges are facing—stresses that result in a good many of them suffering depression and even what they concede is mental illness.

There has been far less concern expressed about the impact of those systemic problems on litigants, especially those of us who are compelled to be self-represented.

On that note, I want to specifically mention two members of the legal establishment. They are Justice Yves-Marie Morissette of Quebec's Court of Appeal and Donald J. Netolitzky, who, as an employee of the Alberta superior courts, has the curious title of “complex litigant management counsel”. I would characterize what they have been doing as building a thesis about what they like to call “querulous litigants”—the most extreme kind of what are conventionally called vexatious litigants.

Justice Morissette did not coin the term “querulous litigants”. He attended an international conference held in Prato, Italy in 2006. Subsequently, he addressed a meeting of the Canadian Association of Counsel to Employers with a speech entitled “Querulous and Vexatious Litigants as a Disorder of a Modern Legal System”.

The CACE posted a copy of that speech on their website. After I found it there and began commenting publicly about it, they removed that copy. There's a copy currently on the website of an entity called ProQuest. I have had some success accessing it there, but not consistently, as it appears to be a subscription website. I have attached a copy that I saved.

Donald Netolitzky has built on Justice Morissette's original thesis and is continuing to do so. They don't, of course, claim that all self-represented litigants are querulous or even vexatious, but those are the ones on whom they have focused their attention.

One reason this interests me is that my own history of litigation matches their description of the classic querulous litigant, so I can see what they are doing.

I've just found a program of a meeting held last May in which Mr. Netolizky contributed another version of his thesis: “The Responsibility of the Tribunal to Accommodate Users with Mental Health Issues”. To access it, you can go to a link to Donald Netolizky's....

Am I done? Okay. That's it.