Evidence of meeting #39 for Justice and Human Rights in the 44th Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was process.
A recording is available from Parliament.
4:40 p.m.
Liberal
The Chair Liberal Randeep Sarai
Thank you, Mr. Budgell. Hopefully, you'll be able to get the rest out in the questions.
Next we have Ms. Karine Devost, from the National Council of Canadian Muslims.
November 24th, 2022 / 4:40 p.m.
Karine Devost Senior Legal Counsel, National Council of Canadian Muslims
Thank you, Mr. Chair.
Good afternoon to the committee members.
My name is Karine Devost.
I am the senior legal counsel for the National Council of Canadian Muslims. We want to thank you for giving us an opportunity to be here today to provide our recommendations regarding Bill C‑9, an act to amend the Judges Act.
We want to be clear at the outset that we are supportive of the goals of this legislation and of the legislation broadly. The proposed reforms to the Judges Act aim to enhance the Canadian Judicial Council's capacity to effectively respond to all allegations of judicial misconduct against federally appointed judges, not just highly serious instances potentially warranting removal from office.
We are supportive of the passage of Bill C‑9 but have two targeted amendments we want to raise that we submit will improve this legislation.
We are here to make two specific recommendations. The first one pertains to lobbying. The second amendment broadens the wording that is found at proposed subsection 90(3). I will explain that later.
First, we're recommending to amend proposed section 80 to add a proposed paragraph 80(c) to include “lobbying, directly or indirectly;” and for the current proposed paragraphs (c) and (d) to become (d) and (e).
We're recommending this amendment so that the motives or intentions of a judge in their lobbying efforts are not left to interpretation, which very often leads to different results. I can give you two examples.
For example, in a recent decision from the Federal Court involving Justice David Spiro from the Tax Court, the complaints alleged that Justice Spiro was actively engaged with a lobby group attempting to interfere with the appointment of a professor at the University of Toronto whose views were at odds with those of the lobby group. The Honourable Madam Justice Kane of the Federal Court agreed with the review panel of the CJC, which determined that Justice Spiro engaged in improper conduct but his conduct was not serious enough to impose the ultimate penalty for judicial misconduct. This matter did not go to a full hearing.
Conversely, we have the case of Justice McLeod, here in Ottawa, in which he was involved with a non-profit organization and was advocating for social and legal reform for a certain group. In this case, the review panel determined that Justice McLeod engaged in “impermissible advocacy and lobbying” and his matter proceeded to a full hearing on the complaints.
Our amendment attempts to provide uniformity in the law and gives no room to interpretation, so whether you are actively lobbying or subtlety sharing emails that contain a position on a political issue like the one in Justice Spiro's case, the complaint will automatically go to a hearing. This will avoid different readings of the same law, which, as we have seen from the cases I've illustrated, resulted in different outcomes.
As I mentioned earlier, we also seek to amend proposed subsection 90(3) by broadening the scope of impermissible misconduct that would restrict the screening officer from dismissing a complaint. As the provision stands, serious misconduct that may warrant a hearing but does not meet the threshold of discrimination or sexual harassment may be dismissed.
We appreciate and, like most lawyers, applaud the CJC decision in the past to remove former Justice Robin Camp; however, our concern is that misconduct like his will be dismissed because it does not necessarily equate to sexual harassment or discrimination. Justice Spiro's case is a good example that further outlines our concern: A screening officer may dismiss a legitimate complaint because it does not appear to be discriminatory on its face.
That is why it's necessary, at least in the initial screening stage, to apply a broader language that captures misconduct that is not directly discriminatory but can still erode the public confidence in the judiciary and bring into question a judge's impartiality.
Thank you.
4:45 p.m.
Liberal
The Chair Liberal Randeep Sarai
Thank you, Ms. Devost.
Next we'll have Ms. MacGregor, from the Women's Centre for Social Justice, for five minutes.
4:45 p.m.
Nneka MacGregor Executive Director, Women's Centre for Social Justice
Thank you, Mr. Chair, vice-chairs and committee members.
I want to first acknowledge that I'm Zooming in from my home on indigenous land, the traditional territory of many first people of this land, including the Mississaugas of the Credit, the Anishinabe, the Chippewa, Haudenosaunee and the Wendat peoples. It's home to many diverse first nations, Inuit and Métis. My work is done in solidarity with them, especially indigenous women, girls and two-spirit people, who are the targets of ongoing systemic racism.
My submission today centres on our collective responsibility to ensure that they have equitable access to justice in this new process.
My name is Nneka MacGregor, and I want to also acknowledge my colleague, Maya Roy, who co-authored this submission. I am the co-founder and executive director of this organization. We're an NGO with pan-Canadian operations that works to eradicate violence against women, women-identified, two-spirit, and trans-identified people through personal and social advocacy. As an organization created by and for survivors, we use our shared experiences to help change public perceptions.
Thank you for the opportunity to comment today. The focus of my submission will be on proposed section 84, on diversity, and on identifying ways and opportunities for the bill to address systemic and individual biases, especially those based on race and gender, as a way of preventing further harm or impacting the integrity of the processes that are being proposed under this bill.
I want to emphasize the critical importance of ongoing training on understanding and addressing gender-based violence as well as training on uprooting anti-Back and anti-indigenous racism and biases for all members of the judiciary, and ensuring that such training is a mandatory requirement for anyone who will be serving in any capacity under this act.
In our work with survivors of gender-based violence, my organization frequently receives reports on how court systems retraumatize survivors of violence who are seeking justice. For example, in our 2019 research with survivors of gendered sexual violence across communities, we documented reports of bias based on gender and racial stereotypes and the impact on survivors' experiences of the criminal court process, including egregious statements made by judges in some of the cases.
I want to share one example of a woman in Renfrew Country who noted that the court process was almost more traumatizing than the actual incident of violence. She said, “I ended up in hospital because of court.”
It is also imperative that the judiciary and other parties selected to serve in any capacity under these proposed provisions have an evidence-based demographic understanding of how systemic oppression and human rights violations impact sentencing practices.
The current demographic reality in Canada is that Black-identified and indigenous people are disproportionately overincarcerated. For example, Statistics Canada has documented that one in six adult admissions into custody is from population groups designated as visible minorities. We know that these populations do not have a greater propensity for criminal behaviour than their white counterparts, but the reason for their overrepresentation—
4:45 p.m.
Liberal
The Chair Liberal Randeep Sarai
Ms. MacGregor, could you just slow down a little bit? The interpreters are having a bit of a hard time keeping up with your speech, so just slow down slightly.
4:50 p.m.
Executive Director, Women's Centre for Social Justice
My apologies.
We know that these populations do not have a greater propensity for criminal behaviour than their white counterparts, but the overrepresentation is, again, due to systemic racism and pathologizing.
I think it's important to note that I am not advocating for the ideological indoctrination of judges; rather, our research has demonstrated the importance of identifying systemic bias in the legal system and the differential impact on rights holders to access justice in accordance with their charter rights.
It is important that the committee incorporates the intersectional framework developed by the Black legal scholar Dr. Kimberlé Crenshaw, who has written extensively on how court processes must be informed by the nuanced, evidence-based understanding of how historical, legal and social inequities harm rights holders who experience both racism and sexism.
Intersectionality has been judicially recognized across multiple Anglo common-law jurisdictions. Moreover, scholars have documented that Canadian legal frameworks have been embedded with preconceived biases and myths throughout, especially during trials and sentences.
As noted by the legal scholar and historian Dr. Constance Backhouse, there is a “professional culture of whiteness” in the Canadian legal profession, resulting in judges who are “not well-equipped to address racism claims.” Inaccurate and demeaning myths result in the systemic criminalization of Black, indigenous and/or racialized Canadians and compromise our charter rights.
I would invite the committee to consider the following recommendations. I think it's important that the proposed anonymous complaints mechanism remain, because it is essential due to the power imbalances between the judiciary and laypeople.
I think the members of the judiciary, review panel members and screening officers must undergo mandatory training to ensure sound technical knowledge and competencies in areas such as gender-based and racial bias, intersectionality, indigenous cultural sensitivity and humility and training that's developed by elders and knowledge keepers and delivered by indigenous trainers. It's important that they have trauma-informed training and a complaint process that is based on transformative accountability and justice principles.
It's also important to ensure an independent, impartial and representative review panel, and have review panel members disclose any perceived or actual conflict of interest in relation to the complainant. Then, to ensure—
4:50 p.m.
Liberal
The Chair Liberal Randeep Sarai
Thank you.
I'm sorry; if you want to finish your sentence, go ahead.
4:50 p.m.
Executive Director, Women's Centre for Social Justice
Yes, it's just to ensure diversity of representation of the review panel.
4:50 p.m.
Liberal
The Chair Liberal Randeep Sarai
Thank you, Ms. MacGregor.
We'll begin our first round of questions with Mr. Brock for six minutes.
4:50 p.m.
Conservative
Larry Brock Conservative Brantford—Brant, ON
Thank you, Chair.
Thank you to all the witnesses who are here in person and online. Your participation is noted and very valuable to us, so I thank you for that.
I'd like to inform all our panellists that this bill is going to pass. It is receiving consent and approval from everybody on this committee. I bring that to your attention because I want to start off by questioning you, Mr. Budgell, and I listened very carefully to your commentary.
You indicated that the justice system is in crisis, and that Bill C-9 can't be fixed and shouldn't be enacted. I did a little bit of research on your background, sir, and I understand that the National Post has proclaimed you “a self-appointed citizen watchdog” of the CJC.
I understand that, in one of your blog posts, you've opined that Parliament has a unique opportunity “to create an entity fully independent from both the judiciary and the executive branch to receive complaints and decide how to respond to them”. In your opinion, “this is the right solution. It always has been.” In your view, the fundamental problem with the CJC is that “[j]udges judging judges doesn't work.”
I take it, sir, that you still stand by that position.
4:55 p.m.
Conservative
Larry Brock Conservative Brantford—Brant, ON
Well, I'm going to give you an opportunity, because I know you ran out of time, but ultimately, from my perspective, I'd like to hear from you knowing full well that this bill is going to pass and receive royal assent shortly. Can you offer any opinion, any suggestions, that we can consider moving forward by way of possible amendments to make the bill a little stronger, in your view, or more appropriate?
4:55 p.m.
As an Individual
My concern, like anybody in my position, is what happens at the very beginning of the process.
You have what you call a “screening process” in the hands of the executive director and general counsel. I don't know how many complaints are dismissed at that point. I know mine was. Actually, it was the second one. I sent one in before that one. It's over for the majority of people right there.
There are two screening stages right now. I expect there will be, if Bill C-9 goes through. Those are—
4:55 p.m.
Conservative
Larry Brock Conservative Brantford—Brant, ON
I'm sorry. I have limited time. I hate to interrupt you.
Can you think of any possible recommendations or amendments to strengthen this bill?
4:55 p.m.
Conservative
Larry Brock Conservative Brantford—Brant, ON
Are you recommending ways that we can improve this bill?
4:55 p.m.
As an Individual
Yes and no. I'm saying it can't be improved.
If you want to improve it, get rid of that.... The solution I really want to see is that the screening is not done by the Canadian Judicial Council.
4:55 p.m.
Conservative
Larry Brock Conservative Brantford—Brant, ON
Okay. Thank you, sir.
I'm going to move on to Ms. Devost. I did a little research on your background, as well.
I followed along the case of Justice David Spiro in the media when this was first brought to our attention. Notwithstanding the CJC clearing the judge of not one but several complaints with respect to that decision, the Tax Court Chief Justice Rossiter has promised that this particular justice would not be assigned to anyone appearing with an Islamic background. That would be litigants and lawyers.
Is that still the case?
4:55 p.m.
Senior Legal Counsel, National Council of Canadian Muslims
I think that decision was made temporarily. I believe right now that he's back to his full duties. He can sit on those cases.
I'd like to verify that fact. Perhaps I can get back to your office with that answer.
My understanding was that it was temporary, but then the judge was—
4:55 p.m.
Conservative
Larry Brock Conservative Brantford—Brant, ON
I understand that, largely, you are supportive of the legislation. You've recommended a couple of amendments.
I didn't know if you ran out of time in the narrative that you were describing during your opening statement. With the last 25 seconds, I'll allow you to complete that.
4:55 p.m.
Senior Legal Counsel, National Council of Canadian Muslims
I wanted to read out what the amendment would look like.
Proposed subsection 90(3) would read as follows: “A screening officer shall not dismiss a complaint that alleges sexual misconduct or that alleges improper conduct relating to a prohibited ground within the meaning of the Canadian Human Rights Act.”
We're removing “discrimination” and including “improper conduct”. We're broadening the wording of this provision.