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.