Debates of June 16th, 2022

Judges Act

[Rob Moore, Conservative, Fundy Royal, NB]

Madam Speaker, I agree with the hon. member wholeheartedly that we need to put more emphasis on victims. What is really troubling is that in past versions of this bill and past versions of Bill C-5, we had commentary from the office of the victims ombudsman. It is important for us to have someone who speaks for victims. It should not be up to victims only to speak for themselves.

Unfortunately, in the last nine months that voice, which is so important, has not been there to speak to this, other legislation, or Supreme Court of Canada decisions, all of which greatly impact victims and their families, and the position remains vacant. I am urgently calling, and have been for months now, on the government to fill the position of ombudsman for victims of crime.

[Christine Normandin, Bloc, Saint-Jean, QC]

Madam Speaker, I thank my colleague from Fundy Royal for his speech. My question also addresses victims, because he talked a lot about victims in his speech. I want to talk about the new provisions that allow the review panel to impose certain sanctions for less serious offences—continuing education and therapy, for example—which is an improvement over the previous bill. However, there is no opportunity for the victim to participate in the choice of sanctions. The bill indicates that the judge involved has consent over certain sanctions, but there is no mention of the victims.

Could this be an improvement to the bill?

[Rob Moore, Conservative, Fundy Royal, NB]

Madam Speaker, I think any time we can incorporate more views of victims and the impact of offences or misconduct on the victim, we absolutely should. That was the commentary of the ombudsman for victims of crime, where she said that, too often, no one is looking out for victims and their voice is not heard during the process. We understand there are many issues that are paramount for victims right now. Ironically, I am citing someone whose position remains vacant, and that is the ombudsman for victims of crime.

I am pleased to work with my hon. colleague on strengthening this bill and others, and the role that victims play in our processes.

[Ed Fast, Conservative, Abbotsford, BC]

Madam Speaker, I want to profoundly thank the hon. member for Fundy Royal for placing victims at the heart of his intervention. I listened very carefully to the speech that the parliamentary secretary to the Liberal Minister of Justice gave, and I do not believe the word “victim” was ever mentioned. My colleague here on the Conservative side, of course, made victims the linchpin of his comments.

I would ask him to expand on the practical impact that this legislation, if it is improved at committee, could have on the plight of future victims.

[Rob Moore, Conservative, Fundy Royal, NB]

Madam Speaker, I thank my colleague for his steadfast support for victims.

It is always concerning to me. I currently sit on the justice committee and when we discuss a bill, for example Bill C-5, which we voted on this week, often the word “victim” does not come up in the conversation whatsoever. It is often said that justice delayed is justice denied, so one avenue of improvement with this bill is streamlining the process for offences that do not warrant removal from the bench so that we would have an outcome and have an impact on the judge who is the subject of the complaint sooner rather than later, as is currently the case with a too protracted process.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Madam Speaker, I have already agreed with my colleague from Fundy Royal that we need to deal more expeditiously with the vacancy for the ombudsman for victims' rights. However, in looking at this legislation, one must remember that of course judges in this country do not solely judge criminal cases. Obviously, the areas of law that end up before a judiciary are everything from contract law, environmental law and crimes that involve actual violence to property law, intellectual property rights and trade law. We could go on forever. These disputes go into many different areas of the life of a country.

Therefore, I would ask the member how he feels about these improvements and modernization of the Canadian Judicial Council.

[Rob Moore, Conservative, Fundy Royal, NB]

Madam Speaker, my hon. colleague is quite right. There are many different judges and many different types of law in the cases that they are presiding over. However, the fact is that there needs to be a robust complaints process in place. Misconduct could take place both inside and outside of the courtroom and is not necessarily confined, as the member mentioned, to criminal cases.

We look to this bill as an improvement on the existing process, particularly for offences that do not warrant removal but warrant some type of sanction that could include training or otherwise. As I mentioned, justice delayed is justice denied, so we look at having a streamlined process as an improvement, but by no means is this the end of the conversation. As has come up many times now in questions and answers, victims have to play a more prominent role, both in this and throughout our criminal justice system.

[Kerry-Lynne Findlay, Conservative, South Surrey—White Rock, BC]

Madam Speaker, I thank my hon. colleague for bringing this forward. As a former Canadian Bar Association president and long-time lawyer before I came to this place, I know that one of the things we always fought for and spoke up for was independence of the judiciary. That is something that is integral to confidence in our justice system. However, in today's world, when all judgments that are made public are scrutinized by the public and sometimes hard to explain, it seems to me that a process for looking at the conduct of judges that would not necessarily meet the threshold of Judicial Council review makes some sense.

I am interested in my colleague's thoughts on how this bill interacts with our common support for independence of the judiciary.

[Rob Moore, Conservative, Fundy Royal, NB]

Madam Speaker, it was a pleasure to serve with my hon. colleague for some time on the justice committee. She brings a wealth of experience in this and other areas.

It is important. This legislation came in back in the 1970s. There are always improvements that can be made to the process, particularly when dealing with situations that do not warrant removal. As my hon. colleague has rightly said, the independence of the judiciary is so important. It underpins the process. Without an independent judiciary, we do not have proper rule of law in our country. Therefore, we respect that judicial independence, but we also know that there have to be robust provisions in place when there are actual cases of misconduct, rare as they may be.

This bill would streamline that process, particularly dealing with situations that do not warrant removal from the bench. Obviously, removal from the bench, for a judge, is the ultimate sanction. As I mentioned in my speech, it has been applied very rarely, but there are other instances where there needs to be a sanction for misconduct, and this bill would streamline that process. It is why we are supporting the bill, but we are also open to making amendments that would improve it and improve the role of victims in the process.

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

Madam Speaker, with your permission and permission from my colleagues, I would like to share my time with my colleague, the member for Saint-Jean.

[The Assistant Deputy Speaker (Mrs. Alexandra Mendès), Liberal, Alexandra Mendes]

Does the hon. member for Rivière-du-Nord have the consent of the House?

[Some hon. members]

Agreed.

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

Madam Speaker, for years, people have been calling for reforms of the process for reviewing allegations of judicial misconduct, whether the review results in a removal or not. This is not the first time that such a bill has been introduced in the House. The Judicial Council itself has called for this. If we can pass this legislation, it will benefit all stakeholders in the judicial system and all Quebeckers and Canadians. The judicial system is the backbone of any society that wants to live, thrive and evolve in peace. Without a judicial system, it would be total anarchy, an eye for an eye, a tooth for a tooth.

No one wants to abolish the courts. Everyone wants to be able to have faith that the courts will resolve our disputes. Ideally, it would resolve all of them, and for that to happen, we must appoint judges with spotless records in terms of credibility and professionalism. The first step is to ensure that the appointment process is effective and non-partisan. I will come back to this.

We must also ensure that once a judge is appointed, they are consistently subject to ethical conduct rules that are acceptable to everyone involved. Finally, we must ensure that, in cases of misconduct, there is a reliable and effective process for reviewing and, where appropriate, fairly sanctioning the conduct of the party at fault.

We have to admit that the review process in place is among the best in the world. We are not starting from scratch, and that is a good thing. Having myself participated in discussions with bar associations in other jurisdictions in Europe and elsewhere, I can say that what we have here in Quebec and Canada is the envy of many other democratic societies.

That being said, recent examples have shown that we need to think about a new and improved process that would prevent abuses. Having a process that takes years before all reviews and appeals have been exhausted, while the principal continues to receive a salary and benefits—often including a generous pension fund—and these costs are assumed by the public, certainly does not help boost confidence in the judicial system.

Of course, it is just as important that judges who are the subject of a complaint can express their point of view, defend themselves and exercise their rights just like any other citizen. The process needs to be fair and should not unduly favour the person who is guilty of misconduct and seeks to abuse the system. In this respect, Bill C-9 meets our expectations and should receive our support, as well as that of all Canadians. I am happy about this and even hopeful that we will now tackle the other key process, judicial appointments.

It would be nice to see the government finally set partisan politics aside when appointing new judges.

Does the “Liberalist” the government is so fond of still have a place in the selection process? We have talked about this many times in the House. We will have to talk more.

Could the final selection from the short list be done by a committee made up of a representative from each of the recognized parties? Could representatives of the public or professional bodies also take part? That is certainly something to think about.

In my opinion, we are ready for this review process. The Bloc Québécois has been calling for it for a long time, and we will continue to do so. Bill C-9 may set the stage for us to seriously consider it. Will the Minister of Justice be bold enough to propose it? I hope so. If he does, I can assure him right now of our full co-operation.

Until then, let us hope that the reform of the complaints review process proposed in Bill C-9 can build public trust in our judicial system.

I said “our judicial system” because we must never forget that the judicial system belongs to the people and must be accountable to the people. We are merely the ones responsible for ensuring the system is effective.

I will not rehash here the process that led to the relatively recent resignation of a Superior Court justice for whom the review process, given the many appeals and challenges against him, apparently had no hope of ending before he was assured the monetary benefits of his office. However, we must recognize that we cannot allow this heinous impression of non-accountability and dishonesty persist, whether it is well-founded or not. We need to assume our responsibilities and make sure that the public never doubts the credibility, goodwill and effectiveness of our courts.

[Christine Normandin, Bloc, Saint-Jean, QC]

Madam Speaker, I would like to thank my colleague from Rivière-du-Nord for his speech.

I would like to comment on the second part of his speech on the appointment process. As we discuss Bill C-9 today, what our colleagues have often pointed out is both the importance of maintaining the separation between the judiciary, the executive and the legislative powers and the importance of having a system the public can trust. It seems to me that these two principles are especially pertinent to the appointment of judges.

Does my colleague not think that this is the cornerstone of the more than necessary review of the appointment process?

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

Madam Speaker, I would like to thank my colleague for her question. I totally agree with her.

Indeed, it takes both. We need effective rules of conduct that inspire confidence, a process for reviewing these rules that is just as effective, and an appointment process. All of this must be completely independent of the executive and legislative branches.

In fact, our work is limited to implementing the process, the selection committees and the review panels. That is our job, but once that is done, the system must remain entirely non-partisan. Political partisanship must never influence the appointment of a judge or the sanctions for a judge’s misconduct.

In addition, the review process is also important in ensuring that no unfounded complaints prevent a judge from sitting. This process is essential, and must be absolutely non-partisan.

[Heather McPherson, NDP, Edmonton Strathcona, AB]

Madam Speaker, I congratulate my colleague on his excellent speech. I hope he agrees that we need to pass this bill so that we can spend more time resolving other problems in our judicial system, particularly systemic racism and the appointment of judges.

What does he think are the biggest problems in our judicial system?

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

Madam Speaker, I would like to thank my colleague for her question. Before answering, I would like to congratulate her for making the effort to ask the question in French. I know that it was not easy, and I want her to know that I am very thankful for the effort. It is a mark of respect, and I sincerely thank her.

I was so focused on her language efforts that I forgot her question. Ha, ha!

I do agree that we need to vote in favour of Bill C-9. The appointment process must also be impartial, and it needs a review. That is our job, and we owe it to voters and the entire population to make sure our justice system is non-partisan, effective, professional and reliable.

[Tracy Gray, Conservative, Kelowna—Lake Country, BC]

Madam Speaker, the seat for the office of the Federal Ombudsman for Victims of Crime has been vacant since last October. Does the member have any thoughts on that?

When we consider legislation such as this, and on the overall topic, it is really important that we consider victims. Could the member comment on that?

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

Madam Speaker, thanks to my colleague, I remember the previous question now. I would say that the biggest challenge is non-partisanship.

Anyway, to answer the question from my colleague from Kelowna—Lake Country, I would say that we do need to appoint an ombudsman. An ombudsman is the guardian and representative of the people. He or she monitors the work of various organizations. It is therefore important. The position is vacant and should be filled. I hope it will be filled soon.

Once again, I must say that, fortunately or unfortunately, I am an eternal optimist, and I always tend to trust people. Sometimes I am disappointed, but until then, I will place my trust in the current government. I will, however, say that it needs to hurry up, because this is urgent. We need to appoint an ombudsman, review the appointment process and respond to what the public is asking for so that we can finally say “mission accomplished”.

[Christine Normandin, Bloc, Saint-Jean, QC]

Madam Speaker, I am pleased to stand this morning to discuss Bill C-9.

While I was reading the bill, I had a bit of déjà vu. I remember driving on the 417 in the spring while listening to the speeches in the House on Bill S-5, which was sponsored by Senator Dalphond, for whom I have tremendous respect. I still call him “Your Honour”.

I know that Bill S‑5 died on the Order Paper because of the election. The fact that I was supposed to discuss Bill C‑9 in the spring but did not get a chance to shows that we may be a bit behind on the legislative agenda. That is the only criticism I will offer today. As for the rest, I am highly satisfied at least with the spirit of the bill we are studying, as is the Canadian Judicial Council, which strongly supports it.

We are talking about it today. One of the pillars or cornerstones of the bill is the importance of the separation of powers between the legislative, judicial and executive branches. This has been the case since 1971, when the Canadian Judicial Council was created and made responsible for reviewing complaints. This is maintained in Bill C-9.

To ensure the separation of powers, the ability to remove judges is also maintained, as originally provided for in section 99(1) of the Constitution Act, 1867, which states that “the judges of the superior courts shall hold office during good behaviour, but shall be removable by the Governor General on address of the Senate and House of Commons”.

If we relied specifically on this principle, it might appear as though the legislative branch and the executive branch, meaning us here in Parliament, had power over the removal of judges. However, since 1971, the complaint review process has been the responsibility of the Canadian Judicial Council, which must issue recommendations to the Minister of Justice in order for the removal to take place. This complaint review process has been around for over 50 years.

With respect to what has been done since 1971, the improvements in Bill C‑9 meet certain needs. In this case, better is not the enemy of good. We tend to think that if something is working reasonably well, we should not necessarily seek perfection. I think that this used to apply in this case.

There are three essential issues that the bill resolves. The first is that the current process is extremely long. Given the numerous opportunities to file for appeals and judicial reviews during the process, it can take a very long time to review a complaint. My colleagues mentioned that. Unfortunately, we saw proof of this with a Superior Court judge whose name I will not mention, but whose review process lasted from 2012 to 2021. If I remember correctly, the decision was handed down in 2021.

As my colleague from Rivière-du-Nord mentioned, the problem is that, during that whole time, the judge continues to receive their salary and benefits and contribute to their pension. That in itself can be an incentive to come up with endless stalling tactics and draw the process out in order to keep the financial benefits.

This bill makes certain changes. In particular, it modifies the process to include the creation of an appeal panel, the final body before the Supreme Court to which a judge who is at fault can apply. This eliminates the need to go through the Superior Court and the Court of Appeal to reach the Supreme Court, assuming it even agrees to hear the appeal. The bill streamlines the process.

As my colleagues mentioned, under the current version of the act, judges still receive their salary and benefits. Clause 126(1) of the new act remedies that situation. It states, and I quote:

For the purposes of calculating an annuity under Part I, if a full hearing panel decides that the removal from office of a judge who is the subject of a complaint is justified, the day after the day on which the judge is given notice of the full hearing panel’s decision is the day to be used to determine the number of years the judge has been in judicial office and the salary annexed to the office held by the judge at the time of his or her resignation, removal or attaining the age of retirement unless (a) the decision is set aside by a decision of the Supreme Court of Canada, or by the decision of an appeal panel if the appeal panel’s decision is final; (b) the Minister’s response under subsection 140(1) provides that no action is to be taken to remove the judge from office; or (c) the matter of removal of the judge from office is put to one or both Houses of Parliament and is rejected by either of them.

As a result, a judge who is found to be at fault will not receive a salary during that period.

Another problem with the previous version of the bill was that there were no half-measures for lesser offences, so to speak. It was all black or white. The panel's only options were to issue a recommendation for removal or to not issue one. The only middle ground involved negotiating some sort of disciplinary action with the judge on a case-by-case basis. However, judges were quite free to say that they did not want any part in that process because it was not mandatory.

This bill remedies that situation. As soon as a complaint, which can be based on written submissions to the panel, has been examined, the panel can impose redress measures in cases where the reason for the complaint does not constitute grounds for removal.

The review panel can order the judge, for example, to take professional development courses or require him to apologize. In some cases, this can help more effectively remedy a situation when the judge is open to having certain sanctions apply. This may be sufficient, in certain cases, to avoid continuing with a full complaint process and public hearing, which could be long and expensive.

One of the options in the new bill is for the council to issue a private or public expression of concern. There is a certain transparency in the process. The council can issue a private or public warning, a private or public reprimand or order the judge to apologize. As I mentioned in my question to the member for Fundy Royal, the only thing that is a little unusual is one of the measures in clause 102, as follows:

(g) with the consent of the judge, take any other action that the panel considers appropriate in the circumstances.

Perhaps there are questions that should be asked when the bill is referred to a committee for study after second reading, if it gets to that stage, which should not be a problem. For example, why is the judge's consent required? Why do the victims have no say in choosing the sanction to be applied for an offence that is less serious than one that might lead to removal from office?

Another thing the bill deals with is how onerous the process is. Previously, the Canadian Judicial Council itself had to make a recommendation to the minister to have a judge removed. The way it was set up, there was one panel that reviewed the case and another panel that, if it received the complaint, had to pass it on to the Canadian Judicial Council itself. The whole thing involved about 17 chief justices or associate chief justices from courts that were not already part of the process. It diverted energy from solving other problems in the courts, and the process did not necessarily help ensure procedural fairness for judges. This bill fixes that. The review panel itself will now be able to make a recommendation to the minister to relieve a judge of her or his duties. This kind of short-circuits a process that was not necessary and did not guarantee procedural fairness.

All these factors significantly improve the process. However, as my colleague from Rivière-du-Nord explained, this is not the only way to improve people's perception that the justice system is impartial and create a clear separation between the legislative, executive and judicial branches.

I think we also need to look at updating the judicial appointment process. The Bloc Québécois has called for this numerous times by suggesting things like creating a special all-party committee tasked with recommending a new selection process. I have not lost hope. Like my colleague, I believe that human nature is fundamentally good and is capable of doing good things, although I too am sometimes disappointed. Still, I am always willing to work with anyone who is equally willing, and I encourage the government to introduce a bill to review the appointment process.

[Richard Cannings, NDP, South Okanagan—West Kootenay, BC]

Madam Speaker, I thank my hon. colleague for her great speech.

I think we all agree on this bill. It is a good bill, and it is important.

In the spirit of co-operation, I would like to ask my colleague how she would improve this bill.

[Christine Normandin, Bloc, Saint-Jean, QC]

Madam Speaker, as the previous speaker did, I too want to thank my colleague for his question, which he asked in French. We really do appreciate it and see it as a sign of respect. We know that it is not always easy.

I have already mentioned one possible way to impose sanctions for offences that do not necessarily call for the judge to be removed from office. I talked about including victims more in the process. This could be deliberated by the Standing Committee on Justice and Human Rights. Unfortunately, I am not a member of that committee, so of course someone else will have to suggest ways to improve the legislation, but that could be a good starting point.

With regard to the fees involved in representing the judge, the committee work could also include ensuring that there is no financial incentive to carry on and drag out the proceedings.

[Pierre Paul-Hus, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

Madam Speaker, I thank my colleague for her fine speech.

I would like to ask her a question about the federal ombudsman for victims of crime. This position has been vacant for nine months, yet the ombudsman for federal offenders position was filled one day later. Could my colleague tell me about this government's priorities when it comes to victims?

[Christine Normandin, Bloc, Saint-Jean, QC]

Madam Speaker, whether the role of an ombudsman is to protect victims or offenders, there is always a certain obligation to appoint someone quickly. When a position remains vacant for a long time, there will be a backlog of cases. Unfortunately, that has become this government's specialty. I am thinking in particular about the immigration file, which I carried for two years.

I also think there should be more transparency with respect to certain appointments. For example, take the defence file, which is one of my files. We think the ombudsman should be accountable to the House, not the minister. That might have avoided some conflicts in the past, as in the Jonathan Vance case.

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

Madam Speaker, I too will ask my colleague a question in French.

I understand that my colleague agrees with me about reviewing the appointment process. We have said it before: The “Liberalist” is appalling. I am not the one who came up with the name, by the way—it was the government. When even the government refers to this list of conditions by that name, we can imagine what impact this can have on the public. This really needs to be addressed quickly.

I would like to know what my colleague thinks about the example from Quebec, the Bastarache commission, during which former justice Bastarache reviewed the appointment process and proposed conditions that are better than those in place at the federal level.