I call this meeting to order.
Welcome to meeting number 37 of the House of Commons Standing Committee on Justice and Human Rights.
Pursuant to the order of reference of October 31, the committee is meeting to begin its study of Bill , an act to amend the Judges Act.
Today's meeting is taking place in a hybrid format pursuant to the House order of June 23, 2022. Members are attending in person in the room and remotely using the Zoom application.
I'd like to make a few comments for the benefit of witnesses and members.
Please wait until I recognize you by name before speaking. For those participating via video conference, click on the microphone icon to activate your mike and please mute yourself when you are not speaking.
For interpretation, for those on Zoom, you have the choice at the bottom of your screen of either floor, English or French. For those in the room, you can use the earpiece and select the desired channel.
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I also use elementary cue cards to tell you when there are 30 seconds remaining and when you're out of time. I don't like interrupting. Hopefully, you'll keep your eye out for that. This committee is actually really good at keeping time.
I'd now like to welcome our first witness appearing today. We have the good pleasure—
Go ahead, Mr. Fortin.
It's always a pleasure to be with you. Most of you are participating in the meeting in person. Mr. Garrison and Mr. McDonald are participating virtually.
I am accompanied by Nancy Othmer, Patrick Xavier and Anna Dekker, my colleagues from the Department of Justice, who will be helping me answer any technical questions.
As I said, Mr. Chair, it's an honour for me to be here today to speak to you about Bill , an act to amend the Judges Act.
I will take this opportunity to thank all of you for the unanimous support for this bill at second reading.
As you know, this bill reforms the process used to address complaints against federally appointed judges. The soundness and effectiveness of the judicial conduct review process can have a significant impact on the independence of the judiciary. This legislation will make the judicial conduct review process more efficient and more cost-effective.
This legislation is the fruit of years of careful study and analysis, including consultations between the legal community and the general public, and extensive dialogue with the Canadian Judicial Council and the Canadian Superior Courts Judges Association. In my view, Bill sets out what would become a world-leading judicial conduct review process and one that will serve Canadians exceptionally well for years to come.
We need a judiciary that is strongly independent, one that is able to render judgments without fear of reprisal. At the same time, Canadians rightly demand to hold judges accountable to a high standard of professionalism.
In 1971, Parliament, through the Judges Act, assigned responsibility for handling complaints against judges to the Canadian Judicial Council, or the “CJC”. The Judges Act sets out the key elements of a process that served Canadians well for decades. However, shortcomings in the legislative framework have become more and more pronounced over the last few years, prompting growing calls for Parliament to act. This includes calls from the CJC itself.
In developing reforms, the government carefully considered feedback from the general public received through an online survey as well as from a number of key stakeholders, including the Canadian Bar Association, the Federation of Law Societies and provinces and territories.
We listened carefully. Our focus was to craft a process that the public would have confidence in, one that is rigorous and fair, yet timely and effective.
Constitutional principles dictate that a judge cannot be removed from office without having a judge-led hearing into their conduct. As I noted, Parliament has assigned this important task to the CJC. In light of this, my department's officials engaged in sustained discussions with the CJC to ensure that this legislative proposal could benefit from the council's 50-year experience running the judicial conduct review process. Departmental officials also engaged with the Canadian Superior Court Judges Association to understand its concerns regarding process reform.
I take this opportunity to thank both the CJC and the association for these discussions and their commitment to serving Canadians.
I wish here to highlight two main areas of particular concern. The first is efficiency. As it stands, the process takes too long and is too expensive. Of course, the Constitution demands rigour and sensitivity in the handling of complaints against judges. Yet, when the resolution of complaints at times stretches on for years on end, and at great expense to the taxpayer, Canadians rightly ask whether there is a better way.
This is perhaps best underscored by the multiplication of judicial reviews that we have witnessed over the last few years with respect to certain complaints, creating the perception that judges launch these proceedings to effect delay rather than to pursue legitimate legal interests. Bill responds directly to these concerns by making the process much more efficient.
A second shortcoming involves the all-or-nothing nature of the existing process, which is designed to answer a single question: Does the complaint warrant the judge's removal from office? No other sanction is available. This fact colours every step in the process. This risks unfairness to judges subject to complaints, who may be subject to a full-scale inquiry and its proceedings for conduct that would more appropriately be addressed through lesser sanctions. Further, this risks undermining the public's trust in the process. Members of the public may be perplexed and rightly dissatisfied when complaints are dismissed despite problematic conduct because the conduct in question did not reach the high threshold of justifying removal from office.
Bill addresses this concern by introducing, for the first time, the ability to impose sanctions for misconduct that do not warrant removal from office but that nonetheless demand some form of remedy and accountability. These could include, for example, mandating training sessions.
I do not have time in these remarks to discuss all of the improvements proposed by the bill. In the time I have left, let me highlight three key improvements.
First, greater transparency through greater participation of lay members. The current process has a limited role for lay members, which, in this context, refers to individuals who are not judges or lawyers. There is currently one lay member on the five-member review panels.
Bill changes this. There would continue to be one lay member on review panels, but these review panels would be more efficient—having only three members and being empowered to impose sanctions for any misconduct not serious enough to warrant removal from office. Second, hearing panels established to conduct public hearings on whether a judge should be removed from office would now include a lay member. These improvements directly address the system's current shortcomings, increase efficiency, and allow for more appropriate and targeted accountability.
The second point to highlight is how Bill streamlines the appeal process. The current process provides too many opportunities for judges subject to complaints to seek judicial review of decisions made by the council at different stages in the process. This is costly and results in excessive delay and undermines public confidence. Further, after the inquiry committee has issued its recommendation on whether a judge should be removed from office, the current process requires review of this decision by what is termed “council of the whole”, where quorum requires participation by at least 17 CJC members. This body's powers are unclear, and legal decision-making by a body of this size has proven challenging.
To address both of these concerns, Bill would introduce an appeal mechanism internal to the judicial conduct process. An appeal panel made up of three CJC members and two puisne judges would have broad powers to remedy any shortcomings in the process. The only recourse available to the judge wishing to challenge the decision of an appeal panel would be to seek leave to appeal directly to the Supreme Court of Canada. Entrusting process oversight to the Supreme Court will reinforce public confidence and avoid lengthy judicial review proceedings through several levels of court. This will save time and costs while still providing robust fairness for judges subject to complaints.
The third and final point to highlight relates to the costs associated with the process. The day‑to‑day costs of handling complaints are fairly consistent and predictable, and would continue to be so under the new process. However, the costs associated with inquiry committees are highly variable and unpredictable, given the significant year‑to‑year variability in the number of public inquiries conducted. As a result, administrators must rely on complex mechanisms to seek necessary funding on an ad hoc basis. This is a longstanding problem that Bill would rectify by introducing a statutory appropriation to provide a stable funding mechanism for the highly variable portion of the process' costs associated with public hearings.
This is not only a sound practical solution, but is also justified by the fact that these public hearings are constitutionally required. To ensure sound stewardship of these funds, the bill would introduce several measures, including requiring that an independent review be completed every five years into all costs paid through the statutory appropriation. The findings and recommendations of this review would be made public.
I thank you for your time and attention today. I wholeheartedly recommend this bill, knowing that it will profoundly improve the judicial conduct review process to the benefit of Canadians.
I look forward to your questions after having had a glass of water.
Some hon. members: Oh, oh!
Hon. David Lametti: Thank you.
I have a limited amount of time and a lot to get through.
You may or may not agree with me, but the public's confidence in our judiciary has been shaken significantly as a result of some pretty controversial Supreme Court of Canada decisions. With the time permitting, I want to touch upon two decisions: Bissonnette and Sharma. In my view, you need to know what the feeling is on the street and the community, and I want to have your thoughts in terms of the government's response.
As we know, in the Bissonnette decision, the Supreme Court of Canada unanimously struck down section 745.51 of the Criminal Code as violating section 12 of the charter—not saved by section 1—and made it retroactive to the day it was enacted, in this case 2011.
We all know the facts of the case. We need not belabour the point. It was a horrendous crime that shocked the conscience of not only the Muslim community but everyone across the country. In their ruling, the justices indicated that longer periods of parole eligibility, in this case upwards to 75 years, were “degrading in nature and thus incompatible with human dignity, because they deny offenders any possibility of reintegration into society, which presupposes, definitely and irreversibly, that they lack the capacity to reform and re-enter society”. They said that “Although Parliament has latitude to establish sentences whose severity expresses society's condemnation of the offence committed, it may not prescribe a sentence that deprives every offender on whom it is imposed of any realistic possibility of parole”.
Minister, I want you to listen very carefully to the words we heard from various victims when we studied government's response to victims of crime. One such victim was Sharlene Bosma. She indicated that, on May 6, 2013, her husband, Tim, was taken from their home and shot in his own truck across the road from their house. His body was eventually taken to the Waterloo airport and then burned in an animal incinerator. She spent eight days searching the province for him, not knowing where he was. On the eighth day, her world fell apart when she learned one of the most horrifying phrases in the English language: His body was burned beyond recognition. She says:
I cannot convey the overwhelming amount of joy and relief that we as a family shared when the court determined consecutive life sentences in each case—75 years and 50 years for cold-blooded, heartless killers. As the mother of a little girl who was not quite two and a half when her father was murdered, I was extremely thankful that she would never, ever have to face the monsters who killed her father for no reason other than they simply could.
In May of this year, our government took away one of the very few things that we as victims had to hold on to, which was consecutive sentencing. It was one of the greatest blows that the Canadian government has ever dealt to victims of violent crime. It says to us that someone can kill as many people as they want here in Canada because sentencing will not change. It says that Canada only places value on the first victim, with the lives of any other victims not mattering—not here in Canada.
We also heard from another family who indicated the profound impact this decision has had.
I know that you showed compassion in the House of Commons, Minister, when the decision was released. I'm looking at a news release from one of the publications on the Internet. In a media statement, you indicated as follows: “Our position was clear, we supported a sentencing judge's discretion to impose a longer period of parole ineligibility where appropriate. However, we will respect the court's decision and carefully review its implications and the path forward.”
Since hearing those words—and I remember you in the House using those or similar words—what has the government done? What is the government doing to address the pain that these victims are feeling and the overall sense that this is no longer a justice system but merely a legal system?
Thank you for your question, Ms. Brière.
In the unfortunately well-known case of former Justice Girouard, we saw that every possible effort was made to conduct a judicial review and to appeal from the decision and that every tactic was used to prolong the process and increase costs and delays. Unfortunately, when the Supreme Court ultimately dismissed the application for leave to appeal, I informed Parliament that I was prepared to remove Justice Girouard from office, but he retired with full pension.
In one of the fall economic statements, about a year and a half ago, we resolved the pension plan issue, but now we need to review the process.
We currently have a process with clear guidelines and a transparent procedure for appealing from decisions to the courts. The review panels consist of judges, lawyers and lay members. So we can trust the system.
Judges will have the assurance that they will be treated fairly, and the general public will see that the process is more efficient, less costly, shorter, clearer and more transparent.
Thank you for being with us today, Minister.
I'd like to ask you some questions on various topics, but I'll try to stick to today's subject, Bill .
First of all, I want to say that I think this is a good bill, and we of the Bloc Québécois intend to support it. However, shouldn't these complaints that the Canadian Judicial Council handles concerning judicial conduct, misconduct and alleged misconduct raise question marks in our minds? Shouldn't we question whether many of these situations can be avoided by paying more attention to the process and selection criteria?
As you know, the situation has improved over the years. We've discussed this on a number of occasions. We of the Bloc Québécois still condemn the partisan, political checks that are conducted before appointments are made. We should put an end to the practice. It should be given no consideration. Perhaps we should improve conditions and ensure that candidates have university training in the law, that they have a moral compass and that they know how to conduct themselves in any given situation in which litigants appear before them.
In short, shouldn't we improve the selection process so that fewer and fewer complaints are filed?
I promise to keep asking you that every time you are here.
Hon. David Lametti: I suspect you will.
Mr. Frank Caputo: Minister, I'm going to take a little bit of a circuitous route, but I promise, if I could have the chair's indulgence, to bring this back to the bill. I'm going to give you a factual scenario that came up in case law in 2021. I want to get your comment on it. Then I will bring it back to this bill. It's a case that troubled me.
Minister, I know you can't comment on specific cases, but what I'm asking you to do is comment on the legislative framework that permitted the decision, in a case called P.R.J., by the supreme court in my home province of British Columbia. It was a case in which a mother offended against her daughter sexually. The daughter was seven or eight years old. There were two charges—invitation to sexual touching and sexual interference. The case went to trial, meaning that the seven- or eight-year-old had to testify. The mother was ultimately convicted. The sentence was a 23-month conditional sentence order after trial, with 12 months of house arrest, for a sexual offence against one's child.
Minister, do you have any comment on the legislative framework that permitted this?
Thank you, Mr. Naqvi, for the question. It's important.
I'll use the Girouard case as an example, because it's fresh in many people's minds.
There is a process, again, that involves a petition on the part of a letter or a complaint on the part of a citizen. It goes to the executive director of the Canadian Judicial Council. It is then screened by a member and it goes to a review panel. From a review panel, it can go to an inquiry committee and then to this nebulous council of the whole.
At every point in the Girouard case, after every decision, there was a lateral move to seek judicial review at the federal court. It would come back to the process and go to the next stage, and the person lost. It would go again, across the federal court and at the next stage, the person lost. It eventually went all the way up to a leave to appeal to the Supreme Court, which was rejected, thankfully. Only then did the process end.
All of these lateral proceedings were because it wasn't clear that the review mechanism didn't prohibit these kinds of processes seeking judicial review.
What we've done in the new process is establish a line, so you're effectively appealing the substance of the decision with appropriate safeguards and an appropriate chance to make your case on procedural and substantive grounds. However, it doesn't allow constant judicial review of the federal court and, eventually, to the Supreme Court by appeal, if it is merited.
There is an overarching guarantee of safety, if you will, for all participants by the presence of the Supreme Court at the end of the day.
Minister, I would like to hear your comments on a matter we haven't addressed until now.
Have monetary penalties been considered as one of the possible sentences or consequences of an offending judge's conduct?
Going back to the example of Justice Girouard, we could consider the matter of salary paid during the hearing and proceedings. There's also the matter of the pension that's subsequently paid. Is there any way to adjust pension payments in accordance with the decision rendered?
What particularly interests me is the issue of court costs. I understand that Bill would set a limit on the reimbursement of legal fees that a judge could pay.
However, has anyone considered the possibility, for example, of asking offending judges to pay court costs in the event they're found guilty of misconduct? The Judicial Council obviously decides whether a judge should be sanctioned.
However, if it's decided that a judge should be sanctioned for gross misconduct, do you think it would be appropriate to provide for the Judicial Council to have the option, without being compelled to exercise it, of requiring the offending judge to repay, in whole or in part, any fees that the government is required to pay for his or her defence?
No, no. I should have mentioned it.
I thought I would provide a very brief overview for the committee of some of the changes in Bill that are the most salient and that will help improve the effectiveness, the fairness and the transparency of the process.
It's important to appreciate that under the current process, most of the process takes place with a single member of the Canadian Judicial Council analyzing the complaint and then determining what to do about the misconduct in question. That member of the council doesn't have the ability to impose any kind of sanction. They can issue an expression of concern about the judge's conduct, but that's about all they can do for misconduct that is not serious enough to warrant removal, which is the majority of misconduct that comes to the attention of the council.
There is currently a body called a review panel, which performs a gatekeeping function. If the single member of the council who has the complaint thinks that it might be serious enough to warrant removal, they'll send it over to the review panel. That review panel is currently the only stage of the process where there is a layperson. In this context, that simply means someone who has never been a lawyer and, therefore, also never a judge. That panel has only one task, which is to decide whether a public hearing should be held by an inquiry committee on whether the judge should be removed.
If the review panel says yes, that's when we're in the public hearing phase that I'm sure most committee members will be more familiar with. When that public hearing phase takes place, the only members of the inquiry committee are judges and lawyers designated by the Minister of Justice. They hold public hearings, they issue a report to the council of the whole, made up of CJC members who are not conflicted and have not taken part in the prior stages of the process. They look at the report and they issue the final report to the Minister of Justice.
That, unfortunately, is when the opportunity for judicial review arises. The judge, at that point, can take the report to federal court if they disagree with it. From there, it can go to the Federal Court of Appeal and from there to the Supreme Court of Canada. That aspect of the process alone—the judicial review part—can take a good two years.
The new process makes several improvements to this current process.
The first improvement comes at the very start. Instead of a single member of the council reviewing the complaint, if the complaint raises concerns about a judge's conduct, it will automatically be reviewed by a review panel, which includes a lay representative. It will have three people on it: a member of the council, a judge who is not a member of the council and a lay representative. This review panel will have the ability to impose sanctions for misconduct short of removal, and those sanctions will not require the judge's consent. You'll find them, I believe, in proposed section 102 of clause 12.
They include things like having the judge pursue a course of continuing education. There was a question earlier about how this bill might help address systemic racism in the justice system. That's probably a key provision in that regard for Bill . It's a way of having a judge, who has misstepped in a way that suggests they may be acting or harbouring certain stereotypes, pursue a course of continuing education to address that.
From the review panel stage, the process then becomes de facto public and it can go toward a hearing panel, which also includes a lay representative. That hearing panel issues a report, which will contain a decision on whether the judge should be removed or not. That is when the appeal stage begins.
Instead of waiting for the report to the minister and then having judicial review, the appeal stage immediately follows the full hearing panel. There is one appeal stage at the appeal panel and then the possibility of leave to appeal to the Supreme Court of Canada, and that's all. That's where a court review ends.
From there, once the appeal stage is complete, the report goes to the Minister of Justice and that's pretty much the end of the process.
I'll leave it at that and let the committee ask questions. I don't want to take up too much time.
Those are the principle improvements that Bill seeks to make to the process.
Thank you to our witnesses for being here today to discuss this bill. It's a bill that we support.
We've already discussed the limitations of the current process and how it's restrictive. The new process allows for sanctions short of removal.
I want to get your thoughts first on the analysis of what you contemplate those sanctions looking like.
Second, without revisiting this, are there judges under the current system who have been dismissed when a sanction would have been more appropriate? Are there going to be judges in the future that may be.... I think, if you're in the position of a judge, any kind of sanction is huge. It's huge to have that on your record, to have a sanction against you.
Is the sanction maybe an easy way out to deal with a case and say, "We're not going to remove this judge, but let's have them do some kind of training"? The sanction, obviously, is a severe issue in and of itself to a sitting judge.
How do you ensure that we get that balance right between those who should be removed and those who should be sanctioned? Do you think there is anything that needs to be tightened up to avoid misuse of the sanction?
As I said earlier in response to a question when the minister was here, the duty of procedural fairness that the council has toward the complainant is something that this bill leaves for the council to do via policies and procedures, because the universe of possible complainants is extremely large. When the Camp matter broke, there were hundreds of complaints. All of those people who had read about it in the newspaper were complainants. In a case like that, where the victim of the judge's misconduct also complains, that victim is in a very different position. The council might, or should, really, treat that victim of the misconduct differently from the average person who has read about it in the newspaper.
It's difficult to come up with a one-size-fits-all rule that can fit in an act. Policies amendable from time to time are probably the better way to go. That's why this act leaves that up to the council.
In terms of the procedural safeguards available for judges, the judge has paid counsel. We covered that earlier. That's a very important procedural safeguard. The judge has the right to a hearing at which they can test and adduce evidence before they can be removed. That's the basic minimum that the Supreme Court has said is necessary in order to satisfy judicial independence requirements.
The judge has a full right of appeal. We've created a right of appeal that is not restricted. It's not an appeal on a question of law alone. It's a plenary right of appeal to an appeal panel that has all the powers of a provincial court of appeal. Then there's the right of appeal with leave to the Supreme Court of Canada, as you might have from any provincial court of appeal. Again, that right of appeal is plenary. There are no limits on it.
Those are probably the most important procedural safeguards that help ensure that the process is procedurally fair.
The only other one I could mention is the reduced hearing panel. Review panels will operate by written submissions only. That will be fair for judges in the vast majority of cases, but there may be the odd case where the circumstances might give the judge a right to a hearing, in which case they can basically ask for a reduced hearing panel. The reduced hearing panel will hear the complaint de novo. Whatever the review panel did is not going to have an influence on the reduced hearing panel. The reduced hearing panel can come to its own conclusion on that complaint. Again, the decision of that reduced hearing panel will be appealable to an appeal panel as a plenary right of appeal.
I think those are probably the most salient procedural fairness safeguards.
Thanks for being with us, Mr. Xavier, Ms. Dekker and Ms. Othmer.
Earlier I discussed the possibility of mediation with the minister. I agree it might be appropriate in some cases but not in others.
Many steps must be taken after a complaint is filed against a judge and before a potential sanction is imposed. Wouldn't it be appropriate to provide for a frank discussion with the judge in question at some point? A representative of the Department of Justice and another from the Canadian Judicial Council could take part in that discussion to seek a solution to the situation concerned by the complaint.
I can see that it would probably be hard to convince a judge to agree to a potential sanction. However, we can set aside sanctions for the moment and focus solely on consequences, taking the repayment of fees as an example. As we know, fees are a heavy cost. The judicial system loses considerable credibility in the public's view when it learns from the newspapers that hundreds of thousands of dollars are being spent to defend an individual who is rightly accused of certain conduct and may potentially be removed. It's a situation that shocks many people.
Could we legislate certain steps that would enable us to sit down and discuss consequences and potential sanctions? The idea would be to try to determine an outcome so that the judge in question will agree to put an end to the discussion and perhaps waive certain privileges that are granted under the act and that judges may exercise for the purpose of challenging or opposing complaints filed against them.
Isn't there a process that could be applied?
The consultation was done in several stages.
The department prepared a consultation document that was posted to the departmental website, and the general public had a chance to comment on it.
We officials also examined all the correspondence that the Minister of Justice had received from the public over the years regarding the judicial conduct process.
We consulted the Canadian Judicial Council, which will manage the process; the Superior Court Judges Association, which is the main representative of superior court judges; the Federation of Law Societies of Canada; the Council of Canadian Law Deans; and the Canadian Bar Association.
We consulted lawyers who have represented judges in previous disciplinary processes, lawyers who have adduced evidence against judges and lawyers appointed to inquiry committees.
We received submissions from the Barreau du Québec and the Canadian Association for Legal Ethics, which is an association of legal ethics professors.
Lastly, we consulted the provinces and territories.
So this consultation was quite exhaustive.
Bill truly reflects the concerns that we heard from all those groups. They focus mainly on the fact that there were no sanctions for minor misconduct, that the process for removing a judge for gross misconduct was too long and too costly and that it was impossible for the general public to take part in the process for determining whether a judge was guilty of misconduct.
Bill C‑9 will therefore remedy all that.
Thank you, Monsieur Fortin.
Thank you to the witnesses.
I think Mr. Garrison has already ceded his time, so we'll conclude here.
I want to thank Ms. Dekker, Mr. Xavier and Ms. Othmer for coming today.
We will end this portion.
I have a couple of things for committee business. I want to let you know that the deadline for submitting amendments to Bill is scheduled on Thursday, December 1, so we have to establish a deadline to submit amendments. As per routine motions, there is about a 48-hour notice period required to submit amendments, if there are any. If we have that deadline as 6 p.m. on Monday, November 28, that should be fair.
Also, the supplementary estimates were tabled in the House today. As per our calendar, we would be able to have the appear on the matter on December 1. I will have the clerk coordinate with the minister and see if he's available. I'll let you guys know about that.
Barring any questions....
Yes, Mr. Anandasangaree.