Madam Speaker, as we approach the final sitting days of the House before it rises, this is likely my last opportunity to speak before we all return to our ridings for the summer months. In light of this, I would like to start off my remarks today by acknowledging the great people of my riding of Fundy Royal, whom I am honoured to represent here in this 44th Parliament.
On the topic at hand, we are here today to discuss Bill C-9, an act to amend the Judges Act. I will begin by going over a bit of a summary of the bill.
The legislation would amend the Judges Act to replace the process through which the conduct of federally appointed judges is reviewed by the Canadian Judicial Council. It would establish a new process for reviewing allegations of misconduct that are not serious enough to warrant a judge’s removal from office and would make changes to the process by which recommendations regarding removal from office can be made to the Minister of Justice. As with the provisions it replaces, this new process would also apply to persons, other than judges, who are appointed under an act of Parliament to hold office during good behaviour.
In short, the objective of the legislation is to update the Judges Act to strengthen the judicial complaints process. The existing process was established in 1971, so it is due for a refresh. We can all agree that strengthening and increasing confidence in the judicial system, and taking action to better respond to complaints that it may receive from Canadians, are good things. Canadians are really depending on this Parliament to strengthen our judicial system.
As it stands, the judicial system in Canada has been weakened by COVID delays and a lack of resources for victims in particular, like, as I have mentioned, the vacant victims ombudsman position. There really is no excuse today for that when we see so many stories ripped from the headlines that impact Canadian victims. We also see legislation like the bill the parliamentary secretary just mentioned, Bill C-5. The victims we have talked to, whom we have seen and heard from at committee, are concerned about that bill and its predecessor bill, Bill C-22. The victims ombudsman had a lot to say about it.
I would love the benefit of hearing from a victims ombudsman, except we do not have one. We were supposed to have that position filled back in October, so for many, many months it has been vacant. That is completely unacceptable, not only for victims and their families but also for all Canadians. I should note that when the position of the federal ombudsman for federal offenders in our federal prison system became vacant, it was filled the next day. We can see where the government's priorities are.
Bill C-9 was originally introduced in the Senate as Bill S-5 on May 25, 2021. The previous version of the bill did not complete second reading. We heard commentary across the way about delays, with some asking why we are talking about delays. Why was that bill not passed? Well, the Prime Minister called his snap pandemic election in August 2021. That is what happened with that version of the bill.
The bill was reintroduced in the Senate last year as Bill S-3, but the government had an apparent change of heart, dropping Bill S-3 from the Senate Order Paper in December of 2021 and introducing that bill in the House of Commons as Bill C-9. That is where it has languished for months until today, just days before we go into our summer recess.
The bill would modify the existing judicial review process by establishing a process for complaints serious enough to warrant removal from office, and another process for offences that would warrant sanctions other than removal, such as counselling, continuing education and reprimands. Currently, if misconduct is less serious, a single member of the Canadian Judicial Council who conducts the initial review may negotiate with a judge for an appropriate remedy.
It may be helpful at this point to provide a bit of background on the Canadian Judicial Council, what it does and who its members are.
Established by Parliament in 1971, the Canadian Judicial Council is mandated to “promote the efficiency, uniformity, and to improve the quality of judicial services in all superior courts in Canada.” Through this mandate, the Canadian Judicial Council presides over the judicial complaints process.
The Canadian Judicial Council is made up of 41 members and is led by the current Chief Justice of the Supreme Court of Canada, the Right Hon. Richard Wagner, who is chairperson of the council. The membership is made up of chief justices and associate chief justices of the Canadian provincial and federal superior courts. The goal of the members is to improve consistency in the administration of justice before the courts and the quality of services in Canada's superior courts.
Returning back to the bill itself, the reasons a judge could be removed from office are laid out. These include infirmity, misconduct, failure in the due execution of judicial office and “the judge [being] in a position that a reasonable, fairminded and informed observer would consider to be incompatible with the due execution of judicial office.” A screening officer can dismiss complaints should they seem frivolous or improper, rather than referring to them to the review panel. A complaint that alleges sexual harassment or discrimination may not be dismissed. The full screening criteria will be published by the Canadian Judicial Council.
The minister or Attorney General may themselves request the Canadian Judicial Council establish a full hearing panel to determine whether the removal from the office of a superior court judge is justified. The Canadian Judicial Council is to submit a report within three months after the end of each calendar year with respect to the number of complaints received and the actions taken. The intention of this bill, as stated by the government, is to streamline the process for more serious complaints for which removal from the bench could be an outcome.
As I mentioned earlier, these amendments would also address the current shortcomings of the process by imposing mandatory sanctions on a judge when a complaint of misconduct is found to be justified but not to be serious enough to warrant removal from office. Again, such sanctions could include counselling, continuing education and reprimands. In the name of transparency, this legislation would require that the Canadian Judicial Council include the number of complaints received and how they were resolved in its annual public report.
To clarify, the Canadian Judicial Council’s process applies only to federally appointed judges, which are the judges of the Supreme Court of Canada and the federal courts, the provincial and territorial superior trial courts and the provincial and territorial courts of appeal. The provinces and territories are responsible for reviewing the conduct of the judges at the provincial-territorial trial court level, who are also provincially appointed.
Since its inception in 1971, the Canadian Judicial Council has completed inquiries into eight complaints considered serious enough that they could warrant a judge's removal from the bench. Four of them, in fact, did result in recommendations for removal. A ninth inquiry is under way, but has faced delays due to public health restrictions imposed by the Province of Quebec, such as curfew and indoor capacity limits.
Under the proposed new process laid out in Bill C-9, the Canadian Judicial Council would continue to preside over the judicial complaints process, which would start with a three-person review panel deciding to either investigate a complaint of misconduct or, if the complaint is serious enough that it might warrant removal from the bench, refer it to a separate five-person hearing panel. If appropriate, a three-person review panel made up of a Canadian Judicial Council member, a judge and a layperson could impose such sanctions as public apologies or courses of continuing education. If warranted, a five-person hearing panel made up of two Canadian Judicial Council members, a judge, a lawyer and a layperson could, after holding a public hearing, recommend removal from the bench to the Minister of Justice.
Judges who face removal from the bench would have access to an appeal panel made up of three Canadian Judicial Council members and two judges and finally to the Supreme Court of Canada, should the court agree to hear the appeal.
I know that sounded very convoluted and lengthy, but believe it or not, this would actually streamline the current process for court review of council decisions, which currently involves judicial review by two additional levels of court, those being the Federal Court and the Federal Court of Appeal, before a judge can ask the Supreme Court to hear the case.
The amendments would provide for a funding mechanism for the new process. The financial impact of the review process has been raised by a number of stakeholders. I want to encourage the Liberal government to take its fiscal responsibility to taxpayers into consideration with all government policies, but this bill is as good a start as any.
I would like to take a moment to point out that we have the former leader of the Conservative Party to thank for paving the way to having this bill before the House of Commons today. The Hon. Rona Ambrose introduced her private member's bill, Bill C-337, in 2017. This legislation would require the Canadian judiciary to produce a report every year that detailed how many judges had completed training in sexual assault law and how many cases were heard by judges who had not been trained, as well as a description of the courses that were taken. It would also require any lawyer applying for a position in the judiciary to have first completed sexual assault case training and education. Last, it would result in a greater number of written decisions from judges presiding over sexual assault trials, thus providing improved transparency for Canadians seeking justice.
The original premise of Bill C-337 was in response to a complaint about the behaviour a federal judge who was presiding over a case of sexual assault in 2014. The Canadian Judicial Council of which we speak today launched an investigation into the behaviour of that judge. Ultimately, in March 2017, the Canadian Judicial Council sent a letter to the federal Minister of Justice recommending that this judge be removed from the bench, and the minister accepted the recommendation.
The bill before us today works to expedite and facilitate the complaints process so that extreme cases like the one I just referenced can be fully and properly reviewed without causing too much disruption in terms of time, costs and delays in processing smaller but still important complaints.
Earlier this year, the Standing Committee on Justice and Human Rights received correspondence from the Canadian Bar Association stating its support for the legislation as written in Bill C-9. In part, its letter reads as follows:
The CBA commented on the state of the judicial discipline process in its 2014 submission to the Canadian Judicial Council (CJC). On the subject of judicial discipline proceedings, our 16 recommendations were to ensure that the objectives of balancing the independence of the judiciary and the public’s confidence in the administration of justice were respected in the process. The CJC and Justice Canada responded with its own reports, which culminated in the present amendments to the Judges Act proposed by the Minister of Justice.
The letter from the Canadian Bar Association goes on to say:
In the view of the CBA Subcommittee, Bill C-9 strikes a fair balance between the right to procedural fairness and public confidence in the integrity of the justice system with the discipline of judges who form the core of that system. The proposed amendments enhance the accountability of judges, builds transparency, and creates cost-efficiencies in the process for handling complaints against members of the Bench.
I would like to pause here briefly just to say that at a moment like this, looking at a bill like this, it seems to me that it would be a very good time to have a federal ombudsman for victims of crime to hear the perspective on how the judicial complaints process is or is not currently working and how this bill would or would not be able to meet those challenges or rectify those concerns.
In testimony given to the justice committee on June 3, 2021, the federal ombudsman for victims of crime at that time raised what she described as a “most critical” issue, which was the legal recourse or remedy that victims have if their rights are violated.
Currently, victims do not have a way to enforce the rights given to them in law; they only have a right to make a complaint to various agencies. This means that victims have to rely on the goodwill of criminal justice officials and corrections officials to give effect to or implement their statutory rights under the bill. This means victims count on police, Crown prosecutors, courts, review boards, corrections officials and parole boards to deliver, uphold and respect their rights.
But my office continues to receive complaints from victims that are common across all jurisdictions in Canada. Victims report to us that they are not consistently provided information about their rights or how to exercise them, they feel overlooked in all of the processes, and they have no recourse when officials don't respect their rights.
While the bill we are discussing today is, as I said earlier, a step in the right direction, there is certainly more work that needs to be done to make sure our justice system in Canada works for everyone who comes into contact with it, and I will add especially victims. One way this can be achieved is by immediately filling the position of federal ombudsman for victims of crime, which has now been vacant for nine months. There is absolutely no excuse for this position to have remained vacant for nine months when other positions are filled immediately, including, as I mentioned earlier, the position of ombudsman for those who are in our federal prisons.
By contrast, as I was mentioning, when the offenders ombudsman position became vacant, the Liberal government filled it the very next day, as it should have been. It should be filled right away, but so should the position of the ombudsman for victims of crime.
In 2021, the Canadian Judicial Council published “Ethical Principles for Judges”. I would like to reference excerpts from this publication to add some context into the role and duty of the judiciary.
They read as follows:
An independent and impartial judiciary is the right of all and constitutes a fundamental pillar of democratic governance, the rule of law and justice in Canada....
Today, judges’ work includes case management, settlement conferences, judicial mediation, and frequent interaction with self-represented litigants. These responsibilities invite further consideration with respect to ethical guidance. In the same manner, the digital age, the phenomenon of social media, the importance of professional development for judges and the transition to post-judicial roles all raise ethical issues that were not fully considered twenty years ago. Judges are expected to be alert to the history, experience and circumstances of Canada’s Indigenous peoples, and to the diversity of cultures and communities that make up this country. In this spirit, the judiciary is now more actively involved with the wider public, both to enhance public confidence and to expand its own knowledge of the diversity of human experiences in Canada today.
As was just referenced, social context and society overall change over time, and critical institutions like the justice system must grow to reflect these changes. Much of the time, this simply requires education on emerging issues or a more updated perspective on older issues.
In order to grow, there is a crucial partnership that must be respected between the judiciary and Parliament. While the Parliament and the courts are separate entities, there is a back-and-forth conversation between the two that is essential to our democracy and our judiciary. We have recently seen examples in which that conversation, unfortunately, was desperately lacking. On Friday, May 27, of this year, the Supreme Court of Canada struck down the punishment of life without parole in cases concerning mass murderers.
When confronted on the impact of the Supreme Court’s ruling, the Liberal government is determined to stick to their talking points by telling Parliament and concerned Canadians that we should not worry about mass killers actually receiving parole, because that possible outcome is extremely rare. What that actually means is that this government is comfortable putting these families through a revictimizing, retraumatizing parole process, even though, at the end of the day, it is essentially all for show because, according to the government, we just need to trust that a mass killer will not receive parole anyway.
In the Supreme Court of Canada’s ruling, the decision stated, “A life sentence without a realistic possibility of parole presupposes the offender is beyond redemption and cannot be rehabilitated. This is degrading in nature and incompatible with human dignity. It amounts to cruel and unusual punishment.”
What the court is saying here is that keeping mass killers behind bars for the number of years that a judge has already decided would adequately reflect the gravity of their crimes amounts to “cruel and unusual punishment”. Personally, I and many others feel and believe that having the victims' families endure a parole hearing every two years for the rest of their lives is the real cruel and unusual punishment, and the federal government has a duty and a responsibility to respond to the court’s decision, something that it has not done and has shown no inclination to do.
Essentially, the Supreme Court also ruled on May 13 that one can drink one’s way out of a serious crime. We have called on the government to respond to that as well, and we look forward to debate on the response that needs to be coming. Just because the Supreme Court has made these rulings does not mean that this is the end of the road. What it means is that there is a discussion and a dialogue that has to take place, and now the ball is in our court. It is for us to deal with these decisions in Parliament. The Liberals can now create legislation that responds to the Supreme Court’s decisions, and this legislation can be used to make sure that victims, survivors and their families can live in a country where they are equally protected and respected by our justice system.
Bill C-9, an act to amend the Judges Act, is a step in the right direction. I will note that there is much, much more to be done to make sure that the justice system is fair and balanced for all.