The House proceeded to the consideration of Bill , as reported (with amendments) from the committee.
moved that the bill be read the third time and passed.
He said: Madam Speaker, I am pleased to rise before you today to move third reading of Bill . I am pleased not only because of the importance of this piece of legislation in ensuring that we maintain a robust justice system, but also because of the unanimous support it received at the end of October when we last debated this bill.
I thank my esteemed colleagues for their contributions. I am grateful to all those who shared their opinions on this bill, which made it possible to delve deeper into the issues it raises and consider them from every angle. It was really a collaborative effort, and I am proud to have played a role in it.
It is clear from our previous discussions on this bill that, regardless of our political differences, we all share the common goal of protecting the independence of the judicial system. We are supporting that fundamental goal today by implementing a rigorous, tailored process for dealing with disciplinary complaints against judges.
Given the stage Bill C-9 is at in the parliamentary process, I assume that everyone is aware of the context that gave rise to this bill. That context has been very well explained, which helped guide our recent discussions. The merits of the bill have also been debated at length in previous sittings. Nevertheless, I would like to take this opportunity to go over a few key points.
At the outset, it is important to emphasize that the modifications to the judicial conduct process proposed by this bill are substantive and far-reaching. They are not mere adjustments meant to update a process in need of updating.
I will begin with two important elements concerning judicial conduct in general before touching upon the principal areas of reform.
A robust mechanism for governing judicial conduct is critical in upholding public trust in the justice system as a whole. This is so for two closely related reasons. First, the existence of such a regime is essential even where, as in Canada, the judiciary is long established and well respected. Second, protecting judicial independence does not mean insulating judges from the consequences of misconduct. I will briefly cover each point in turn.
The impetus for amendments proposed by Bill is not a crisis of judicial ethics. It is quite the opposite. Misconduct by judges in Canada is rare. Allegations are thankfully infrequent, with findings of misconduct rarer still. We Canadians are privileged beneficiaries of a truly excellent judiciary, whose quality is widely recognized both at home and abroad. This does not mean that a strong judicial conduct regime is not necessary. It is. Maintaining the solid foundation of public confidence on which the excellence of our judiciary rests requires a robust mechanism for dealing with complaints against judges. Such a mechanism is essential to ensuring continued confidence in both the judiciary itself and the justice system overall. Canadians must be confident that instances of judicial misconduct will be addressed.
A well-functioning judicial conduct regime therefore remains critical, even when allegations of judicial misconduct are infrequent. Protecting public trust in the administration of justice demands that a mechanism be in place and be ready to respond appropriately to complaints against members of the judiciary as they are made. This is a tangible guarantee of accountability. It helps preserve confidence that allegations are taken seriously, all while respecting principles of procedural fairness.
A judicial conduct process that would serve to insulate judges from the consequences of misconduct could be just as harmful to public confidence as the complete absence of a conduct process.
That is why the provisions of Bill propose a responsive approach seeking to ensure that allegations are addressed as fairly and effectively as possible. The proposed mechanism respects both the people filing the complaint and those who are the subject of the complaint. By providing a legitimate avenue for the careful review of allegations, we have the assurance that there is some oversight over the conduct of judges and that they will be held to account when necessary. At the same time, this promotes confidence in the administration of justice on a broader scale.
It is important to point out that the careful development of a judicial conduct process is not at all incompatible with the fundamental principle of judicial independence, guaranteed under paragraph 11(d) of the Canadian Charter of Rights and Freedoms and the provisions on the judiciary in the Constitution Act, 1867. In fact, they go hand in hand.
That being said, we must be careful to strike a delicate balance between these two important considerations. The process we put in place to conscientiously address allegations of judicial misconduct must not contravene the constitutional guarantees that seek to ensure judicial independence.
We can be confident that this bill strikes the right balance. Canadians can trust that their judges are making independent and impartial decisions and, at the same time, they can rest assured that the judges' conduct remains subject to review. Ultimately, this will improve trust in the administration of justice, both with respect to individual judges and on a broader scale.
Let me now provide a brief overview of the legal and constitutional foundations of the judicial conduct process. At its core lies the Canadian Judicial Council, or CJC, the body responsible for receiving, reviewing and investigating complaints against members of the federally appointed judiciary. It works at arm’s length from the executive and legislative branches of government.
The Judges Act requires the CJC to submit a report to the Minister of Justice containing a recommendation on whether the judge whose conduct is at issue should be removed from office. It is for the minister to then consider whether to advise cabinet that the matter of the judge’s removal should be put to the houses of Parliament. In order for a judge to be removed from office, both the House of Commons and the Senate must vote in favour. If they do so, a request is made to the Governor General to remove the judge from office.
As I have previously noted, this process requires a counterweight in the form of constitutional protections for judicial independence. One aspect of judicial independence is security of tenure. More specifically, the requirements of security of tenure prevent a judge’s removal from office except in cases of proven incapacity or misconduct. As a further safeguard, a hearing is required, at which the judge has an opportunity to be heard and to test and adduce evidence. These imperatives lie at the heart of any judicial conduct process. They are the keys to ensuring all stages of such a process are free from undue influence from the other branches of government.
It follows that any healthy system of justice finds its roots, at least in part, in the framework established to handle allegations of misconduct by its judges. All of us would expect to be treated fairly if we were involved in a matter before the courts. The same requirement for procedural fairness applies to judges in the review of their conduct. While not in and of itself a court process, it must necessarily mirror some of the key elements of court proceedings, namely, fairness throughout while ensuring any resolution is appropriate to its context. The process must function efficiently in terms of both time and resources, producing final outcomes in a timely manner and at a reasonable cost to the taxpayer.
These elements are core to the reforms proposed by Bill . While our current judicial conduct regime served us well for many years, helping to create the preconditions needed for the strong justice system we enjoy today, it is now in need of improvement. As I have already stated, this is not change for change’s sake, nor is it prompted solely by the need to update a half-century-old process. Fundamental changes in the legal landscape coupled with evolving societal norms have occurred, revealing specific shortcomings to the existing process. These could be addressed through the reforms proposed by Bill C-9.
Bill ’s proposed amendments target the following key areas: efficiency, accountability and procedural fairness. All three are crucial determinants of public trust and would be met by this bill. An efficient process would optimize both time and financial resources. Timely resolution of matters would help provide certainty to those involved. On a broader scale, timeliness and efficiency would foster confidence the process functions as it should, with allegations addressed promptly and effectively.
Currently it is possible for judges to initiate judicial review of CJC decisions at multiple stages. Each of these judicial reviews, begun in the Federal Court, can be appealed to the Federal Court of Appeal and, potentially, to the Supreme Court of Canada. Even if such proceedings are commenced for all of the right reasons, the lifespan of a matter can too easily become stretched out unreasonably. Efficiency is also, of course, related to cost, as timely resolution of allegations helps avoid ballooning costs.
In combination with the possibility of unduly extending proceedings over many years, public confidence in the process can suffer if its costs appear excessive. A key aspect of the new regime proposed by Bill would be its improved flexibility and responsiveness. It proposes a more refined tool for the resolution of judicial conduct matters not serious enough to warrant removal: a suite of potential sanctions that would allow for the imposition of a sanction that is more contextualized and appropriate for remedying the misconduct in question.
There is only one sanction expressly available under the current regime, and that is removal from office. It is therefore both potentially overbroad and underinclusive. Consider conduct that, while recognized as inappropriate, should warrant something less than overruling judges’ constitutionally protected security of tenure.
Even exposure to the required full-scale inquiry without actual removal can cause irreparable damage to a judge’s reputation. The CJC has told us it often struggles with the application of these stark either-or alternatives, that is, between recommending the most serious penalty or none at all. In either case the public may perceive injustice.
It is also important to highlight the idea of justice being done, as well as being seen to be done. Public trust in the judiciary relies not only on judges being held accountable, but also on judges being seen to be held accountable. By providing for options other than removal from office, such as participating in an education program or issuing a formal apology, Bill would provide a more balanced approach that reinforces accountability to Canadians at all levels. It would be an important step forward in continuing to foster the confidence of the public in our justice system.
It is essential to remember that our system of law exists to serve the public. It operates because we have confidence in its legitimacy, trusting in the capacity of its members and mechanisms to administer justice. This is no accident, but rather the result of sustained and concerted efforts over time. Here in Canada we are fortunate to have a strong foundation upon which to build. This requires ongoing attention, however, by ensuring measures are undertaken to safeguard public trust.
Bill , for example, would introduce greater transparency and public participation into the judicial conduct regime. Members of the general public who are neither lawyers nor judges would participate at two crucial stages of the proposed new process.
First, they would be members of review panels charged with determining whether less serious misconduct has occurred and what sanction, short of removal, would be appropriate in the circumstances. Second, a layperson would be a member of full hearing panels that determine whether serious misconduct warrants a recommendation for removal from office.
These changes would respond to feedback received during extensive consultation across a wide range of groups, members of the public included. Along with accountability to the public, the regime would seek judicial accountability.
Critical to the process’s legitimacy is that judges would be held accountable for their behaviour in both fact and public perception. As I have mentioned, the perception that the system operates as it should is equally as important as the fact that it actually does. Expanding the options for addressing instances of inappropriate judicial behaviour would improve both. Consequences tailored to each circumstance could be deployed, meaningfully addressing a wider range of misconduct. This amended framework would also encourage creativity in approaching resolution and sanction, with a view to imposing the most suitable remedy for misconduct that warrants a response short of removal.
The final element relating to accountability is financial. As I noted earlier, the current regime can easily spiral into excessively long and expensive proceedings, undermining public trust. In addition to the reforms I have already discussed in relation to efficiency, Bill proposes a more stable funding mechanism and new controls for the use of public funds.
More specifically, funding would come from two sources. Some funding would be drawn from the consolidated revenue fund, while the rest would come from the commissioner for federal judicial affairs' budgetary appropriation, obtained through the regular budget cycle. The consolidated revenue fund would only be used to cover costs that inevitably arise from the requirement to hold public hearings when a complaint reaches a certain stage in the process. These costs are both non-discretionary and unpredictable. The more predictable day-to-day administrative expenses would be paid out of funds obtained by the commissioner for federal judicial affairs as part of the budget cycle.
Additional safeguards have been put in place with respect to disbursements from the consolidated revenue fund. There is a policy that limits the amount that can be charged by lawyers representing judges who are the subject of a complaint. Bill also proposes that the commissioner for federal judicial affairs be more involved, both to review other procedural expenses and to work with the Canadian Judicial Council on the five-year review of costs borne by the consolidated revenue fund.
The Canadian judiciary's performance is exemplary in every regard. I am proud of our judges, both past and present, who were and are dedicated to serving their fellow Canadians to the best of their ability. However, despite the high standards to which we hold judges, and which the vast majority of them achieve, misconduct inevitably occurs. As I explained, even though such incidents are rare, having effective mechanisms in place to address them is a crucial determinant to maintaining the public trust.
Just as each individual allegation of misconduct presents an opportunity to bolster public confidence in the judiciary, so too does this bill. We have the unique privilege of taking concrete action toward strengthening the administration of justice. I was heartened by our collaboration earlier in the process, particularly at committee, that has enabled Bill to arrive at the stage where it is today. Let us continue in that spirit and send this bill on for consideration by our colleagues in the other place.
Madam Speaker, this legislation would reform the process by which the Canadian Judicial Council undertakes reviews of complaints brought against judges for alleged misconduct. The judicial complaints review process was established more than 50 years ago, in 1971. It has a number of problems in that it can be timely, cumbersome and costly. These problems have been publicly recognized by the Canadian Judicial Council, which consists of 41 members, including all chief justices and associate chief justices of federally appointed courts. For years, there have been calls to reform the process.
The process, as it currently stands, can involve up to three layers of judicial review: the Federal Court of Canada, the Federal Court of Appeal and, upon leave being granted, the Supreme Court of Canada. That process can take years and, in some cases, even as long as a decade. This bill seeks to address that by streamlining the process, although, I would submit, it does so somewhat imperfectly from the standpoint of ensuring procedural fairness. Nonetheless, the process the government has come up with is supportable, notwithstanding some shortcomings that Conservatives raised at committee.
The bill also seeks to enhance transparency by requiring that the Canadian Judicial Council, in its annual reports, to publish the number of complaints and how those complaints were resolved.
The bill would enhance accountability. Under the current process, where a judge's misconduct is not at a level that would warrant their removal from office, such cases can be settled behind closed doors with really very little transparency. This bill would change that by providing for mandatory sanctions. Those sanctions could range from requiring the judge to issue an apology to requiring the judge to undertake counselling or professional development training with regard for the nature of the misconduct and circumstances of the case.
The bill, on the whole, would protect the independence of the judiciary, which is vital to our democracy and integral to the rule of law, which is something that, unfortunately from time to time, the current government has not respected. In addition, with some imperfections, the bill would maintain procedural fairness, both from the standpoint of the complainant as well as for a judge whose conduct is being questioned by way of a complaint.
It is good that this bill has been brought forward. It is a bill that is the product of consultations that took place in 2016, the substance of which have been incorporated into this bill, on which there is generally consensus. However, I will say that it did take the Liberals five years after those consultations ended to get around to introducing a bill. Moreover, when the government finally got around to introducing a bill in May 2021, it went nowhere because of the , who called a completely unnecessary and opportunistic election. Following the unnecessary election, the Liberals reintroduced the bill in the Senate last November and then suddenly decided one month later to pull the bill from the Senate.
The Liberals then reintroduced the bill, Bill , last December in the House and proceeded to let it languish for months on end. For six months, they sat on their hands only to finally bring it up for debate at second reading in June, just before the House rose for the summer, and here we are at Christmas still dealing with the bill.
I highlight the process to underscore how dysfunctional the Liberal government is. Here, we have a bill around which there is general consensus, and it has taken the Liberals three bills to proceed. While the bill would enhance public confidence in the judicial system, and judges are central to that system, the same cannot be said more broadly about public confidence in our justice system, as a result of the policies of the Liberal government, policies and actions for which the government gets a failing grade.
For the Liberals, it is always about the criminals and never about the victims. This, after all, is a government that allowed the position of victims ombudsman to be left vacant for nine months. Finally, in September, the Liberals got around to filling that vacancy. It was not the first time they left that position vacant, the federal advocate for victims, the ombudsman. They left the position vacant for nearly a year in 2017 and 2018. By contrast, when it came to the prisoners ombudsman, when that position became vacant, the Liberals saw fit to fill it the very next day.
That is quite a contrast. When it comes to an ombudsman for prisoners, the vacancy was filled the next day. When it comes to the ombudsman for the rights of victims, the government has presided over leaving that critical position vacant for nearly two years out of the seven years it has been in office.
This is a government that just passed Bill , the do-no-time, soft-on-crime bill, as it has come to be known, which eliminates mandatory jail time for serious firearms offences and for serious drug offences, including trafficking and production of schedule 1 drugs such as cocaine, fentanyl and crystal meth. This is at a time when we have an opioids crisis. When 21 Canadians a day are dying as a result of that, the government's priority is to let those who put that poison on our streets serve their sentence at home, instead of behind bars where they belong.
That is a government that has failed to engage in that dialogue, which is so critical between Parliament and the courts. The failed to respond to the Supreme Court's decision to strike down the very reasonable and just law passed by the previous Harper government to give judges the discretion to apply consecutive parole ineligibility periods for mass murderers, including the mass murderer responsible for the murder of my constituent Brian Ilesic. His parents, Mike and Dianne, are very deeply troubled by the inaction of the minister, and I am glad that today he at least acknowledged he was open to reviewing that decision. That is the first time he has said that.
In closing, I will just say that the bill is a supportable bill, but it is cold comfort for victims and their families who, time and again, have been abandoned by the government.
Madam Speaker, I am here to talk about Bill , an act to amend the Judges Act.
In the end, the Michel Girouard case was not even about whether Justice Girouard had purchased cocaine from his former client, a known drug dealer. The Canadian Judicial Council panel hearing the case found that there was not enough evidence on a balance of probability to find that the judge had been dealing in drugs.
There was a video recording, which, unfortunately for him, captured an exchange between him and his client, with money going one way and a package going the other. The judge said that exchange was not about drugs; it was about pornography. Clearly, this judge had a bad habit or maybe two bad habits, but I am willing to concede to the panel's finding that there was no drug dealing. In the end, it was the cover-up that torpedoed this judge's short time on the bench.
The panel's report reads, “[He] deliberately and intentionally attempted to conceal the truth during the hearing.” After that, they recommended his removal. However, Judge Michel Girouard of the Quebec Superior Court was a very good judge. He was certainly a very smart judge. He was a very competent lawyer too. He had a good track record as trial counsel, and he knew his way through the legal court system probably better than anybody did. He used the experience he attained during his career as a lawyer to his full advantage.
Here is a short history. In 2010, he was appointed to the court. In 2012, there was a complaint launched against him relating to drug dealing. In 2014, the Canadian Judicial Council undertook a full investigation, and at the end of that, it recommended his removal to the minister of justice at the time.
I will give a brief explanation of how the Canadian Judicial Council works.
It is a body of judges that is appointed pursuant to the provisions of the Judges Act to review judges' complaints against judges. This is judges judging judges. The idea behind the structure, as with all administrative bodies, is to take specialized cases out of the regular court system. The idea is to be more fair, more transparent and more efficient.
Generally, this works, but it can be abused, as it was in the Girouard case. That case was dragged through the Canadian Judicial Council appeal processes and then through the court system under judicial review procedures. All of these tools were available to Justice Girouard under the governing legislation, the Judges Act, which we are reviewing today. Along the way, he found some courts that were actually sympathetic to his position. The case went back and forth, and it finally ended up at the doors of the Supreme Court of Canada in 2019, which refused to hear the appeal.
The end of the story is that Justice Girouard resigned, mercifully for all of us, but not until after eight years of dragging the case through the court system while he had full pay, even though he did not have to show up for work. His pension also accrued during that time.
Although the Supreme Court of Canada decided not to hear this case, the chief justice had this to say, not specifically about this case but generally: “If the judge has to be removed, he has to be removed quickly and without too much cost to society. We need reforms. Parliament should find a way to make sure that these matters don’t drag for too long and aren't too expensive.”
That is why we are here today to review Bill , an act to amend the Judges Act. I do not want to leave the impression that Bill C-9 is Parliament's response to the Girouard case. It is not. I took up that case only because it is high profile and a good example. It illustrates why reform is necessary.
The Canadian Judicial Council is busy with many files. It oversees the work of almost 1,200 federally appointed judges. The vast majority of those judges are very competent, fair, judicious, respectful of the people who appear before them and respected by their profession and in their communities. The CJC's judicial conduct oversight role is part of its general mandate to keep the judicial system efficient, uniform and accountable, and in large part, it does that work effectively.
I do not want to get into the details of Bill ; we do not have time for that. A general overview is that it expedites the inquiry process and simplifies it, while also keeping it fair to judges. It also aims to secure the public's confidence in our court system. Importantly, it keeps cases out of the court system.
The council's recommendation to the Minister of Justice will be the final decision, except in the case of an appeal to the Supreme Court of Canada. That is a faint hope because most applications for leave to appeal to the Supreme Court are turned down, as in the Girouard case. It did not make the cut. Most cases coming out of the Canadian Judicial Council, I am sure, would not make the cut to the Supreme Court of Canada.
Not everyone is going to be happy with that. In the Girouard case, for example, which made it to the federal trial court in its long and winding history of eight years, the judge had something to say in response to the Canadian Judicial Council's arguments that only the council had any jurisdiction over the oversight of judges and that the Federal Court had no jurisdiction at all. This is what the federal trial judge said:
It is undeniable that a report recommending the removal of a judge has a serious impact on that judge, professionally and personally, and on his or her family. It is inconceivable that a single body, with no independent supervision and beyond the reach of all judicial review, may decide a person's fate on its own.
If the judge who wrote that paragraph were sitting here today, he would be voting against Bill .
At committee, as stated earlier in debate with the , the Conservative members of the justice committee put forward a common-sense motion to amend Bill to allow for an automatic right of appeal to the Federal Court of Appeal. This is not to a trial court, where things could get bogged down, but directly to the Federal Court of Appeal. Unfortunately, the other members of the committee voted against that.
All that said, despite that flaw, which I think is significant, this legislation is good and sound. It stands in line with other judicial reform legislation of recent years and we support it.