THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
EVIDENCE
OTTAWA, Thursday, March 23, 2023
The Standing Senate Committee on Legal and Constitutional Affairs met with videoconference this day at 11:32 a.m. [ET] to study Bill C-9, An Act to amend the Judges Act.
Senator Brent Cotter (Chair) in the chair.
[Translation]
The Chair: Honourable senators, I call the meeting to order. I will now ask the senators to introduce themselves.
[English]
Senator Batters: Senator Denise Batters, Saskatchewan.
[Translation]
Senator Boisvenu: I am Pierre-Hugues Boisvenu from Quebec.
[English]
Senator Pate: Kim Pate from the shores of the Kitchissippi, the unceded unsurrendered territory of the Algonquin Anishinaabeg.
[Translation]
Senator Clement: I am Bernadette Clement from Ontario.
Senator Dupuis: I am Renée Dupuis, an independent senator, and I represent the senatorial division of The Laurentides.
[English]
Senator Klyne: Good morning, and welcome. Marty Klyne, senator from Saskatchewan, Treaty 4 territory.
[Translation]
Senator Dalphond: I am Pierre J. Dalphond, and I represent De Lorimier, Quebec.
[English]
Senator Jaffer: Mobina Jaffer from British Columbia. Welcome.
The Chair: I’m Brent Cotter, senator for Saskatchewan and chair of the committee.
Senators, this morning we are beginning our study of Bill C-9, An Act to amend the Judges Act. We begin our study by welcoming The Honourable David Lametti, P.C., M.P., Minister of Justice and Attorney General of Canada. I can’t resist saying, “Welcome back, Lametti.” That would be a good idea for a TV show. He is joined by Patrick Xavier, Senior Counsel, Judicial Affairs Section; Shakiba Azimi, Counsel, Judicial Affairs Section; and Toby Hoffmann, Director and General Counsel, Judicial Affairs Section.
As is our regular practice, Minister Lametti, we’ll invite you to speak for five minutes, and then senators will engage in questions with you. The floor is yours.
The Honourable David Lametti, P.C., M.P., Minister of Justice and Attorney General of Canada: Thank you very much, Mr. Chair. I want to thank your predecessor as well as all the other members here today.
Once again, it’s a pleasure to be with you to speak about Bill C-9, An Act to amend the Judges Act. As you know, this bill aims to reform the process used to address complaints against federally appointed judges. I want to thank the members of my team from the department who are supporting me today and who will also continue on after I’m done.
[Translation]
Canada’s judiciary enjoys an unparalleled reputation for excellence and integrity, and it is well deserved. Allegations of misconduct against members of the judiciary are rare, and allegations so serious that removal from judicial office may be warranted are rarer still. Nevertheless, our justice system needs an effective process for reviewing those allegations, few though they may be. That effective process helps to secure a cornerstone of the rule of law, which is public confidence in the integrity of justice.
In 1971, when Parliament enacted the Judges Act, the Canadian Judicial Council, or CJC, was entrusted with the responsibility of receiving and investigating complaints against judges. Without question, the CJC has discharged that responsibility in an exemplary manner for more than 50 years. It is no exaggeration to say that, without the council’s unwavering commitment in this area, we would not be in the enviable position we are in today — we have an excellent judiciary that inspires public confidence.
However, the CJC is uniquely positioned to confirm that the legislative framework establishing the judicial conduct review process has significant shortcomings. Those shortcomings have grown in recent years, threatening to undermine not only confidence in the process, but also confidence in the judiciary itself. It is time to remedy those shortcomings.
[English]
One solution is the bill you have before you today. Bill C-9 proposes a series of reforms that comprehensively addresses the shortcomings of the current process. I’m confident that this bill will put in place a judicial conduct process that will serve Canadians exceptionally well for decades to come.
Before reviewing some of the bill’s key features, let me underscore that Bill C-9 is the fruit of a thorough policy development process that followed equally thorough consultations. Those consulted included the Canadian Judicial Council, the Canadian Superior Courts Judges Association, the Canadian Bar Association, the Federation of Law Societies, and provinces and territories. Members of the general public were also invited to participate through an online consultation paper that solicited comments on a comprehensive discussion paper. Crucially, this bill has their support. I say “crucially” because the Canadian Superior Courts Judges Association represents the day-to-day concerns of federally appointed judges from across the country. The Canadian Judicial Council, or the CJC, for its part, is the body that not only has over half a century of experience managing the current judicial conduct process but will also manage the one proposed by this bill.
This bill also received all-party support in the House of Commons. The Justice Committee studied the bill and made only two minor amendments, creating requirements for written reasons when a complaint is dismissed at the two earliest stages of the process. I will note that is already standard practice for the CJC, so it is straightforward to implement.
I have alluded to the shortcomings of the current process. At this point, let me elaborate in broad strokes on four principal areas of concern and how Bill C-9 proposes to address them.
The first is efficiency. The current process takes too long and is too expensive. The Constitution rightly demands rigour and fairness in the handling of complaints against judges; yet, when the resolution of complaints at times stretches on for years on end, with lengthy court challenges that create great expense to the taxpayer, Canadians rightly ask whether there is a better way. We have seen this situation more than once in the recent past.
Bill C-9 directly addresses that concern by making the process much more efficient. Judicial review of CJC decisions through multiple levels of courts will be replaced with a streamlined appeal process, culminating in a right of appeal with leave to the Supreme Court of Canada. Entrusting oversight to the Supreme Court is entirely appropriate, given the judges who will sit on CJC hearings and appeal panels, and that those bodies will, in practice, function much like trial courts and courts of appeal in the regular court system.
Such reforms strike an appropriate balance between the central aim of streamlining the process while ensuring fairness to the judge who is subject to the hearing.
A second shortcoming of the current process stems from the fact that it is designed to answer only one question: Does the complaint warrant the judge’s removal from office? Sanctions for less serious misconduct are not expressly available; they can only be imposed with the agreement of the judge concerned.
Bill C-9 addresses that concern by providing the power to impose sanctions for misconduct that demands some form of remedy and accountability short of removal from office. These include, for example, formal reprimands and mandatory training sessions or counselling.
Third, Bill C-9 seeks to foster public confidence in the process by increasing participation of lay members. The current process has a very limited role for lay members, with one lay member involved in only one stage of the process determining whether public hearings should be held into the conduct of a judge.
Feedback from public consultations revealed strong support for greater public participation by laypersons. The laypersons would participate in two stages; they would be members of review panels, charged with imposing sanctions for less serious misconduct, and they would also be members of full hearing panels which would hold public hearings and recommend to the Minister of Justice whether a judge should be removed from office in the most serious cases.
[Translation]
Lastly, it is very difficult to anticipate the level of funding needed for the existing process within the regular budget cycle. The reason is that holding public hearings to determine whether a judge should be removed from office can be significantly more expensive than simply administering the process day to day.
Bill C-9 would solve that problem by allowing costs stemming from those public hearings to be drawn directly from the Consolidated Revenue Fund. To ensure cost oversight and adequate financial controls, an independent review of those costs and controls would be completed every five years, and the results would be made public. This approach strikes the right balance between the need for sound stewardship of public funds and the need for stable funding for this essential process.
[English]
These are just the most salient improvements to the judicial conduct process proposed by Bill C-9. There are others, but in the interest of allowing time for questions and discussion, I will leave it at that for now.
Let me conclude simply by noting that I am convinced that Canada has the strongest justice system in the world, in no small part because we have the most exceptional and committed judiciary in the world. This is the result of our sustained commitment and effort to keep our institutions healthy and to keep our judiciary independent and strong. Bill C-9 is part of that ongoing effort.
I look forward, senators, to answering your questions. Thank you.
The Chair: Thank you, minister. I’m going to invite Senator Dalphond, the sponsor of the bill in the Senate, to begin with a question.
Senator Dalphond: Thank you very much, minister, for being with us today.
[Translation]
I have a clarification question to start. I’m going to let my fellow senators have as much time as possible to ask questions, since I attended the briefing your department held. I had the opportunity to sponsor this bill twice. Today is my third attempt.
You said you consulted extensively before bringing forward the bill, and you talked about all the stakeholders you consulted.
I want to quote from a press release the Canadian Judicial Council put out on May 27, 2021. The council made the following statement:
Over the past few years, the Council has consistently called for new legislation to be tabled in order to improve the process by which concerns about judicial conduct are reviewed.
I realize that there were significant consultations, but the process was in response to a request from Chief Justice Wagner and the Canadian Judicial Council, calling on you and your government to amend and modernize the act. In other words, the bill is a response to a judicial initiative. The decision to get involved didn’t originate with the government.
Mr. Lametti: I think that was a comment, rather than a question. I can give you some details on that.
Senator Dalphond: I wanted to confirm that, no, the government did not act on its own. It was actually responding to requests from the judiciary.
Mr. Lametti: First, I should point out that there is a balance between the legislature and the judiciary as far as safeguarding the judiciary’s independence is concerned. That is a fundamental principle of our system, and I adhere to that principle.
There were some publicized cases. The charge was initiated and largely led by the Canadian Judicial Council, in order to preserve public confidence in the system. The judges, themselves, felt that it was necessary to reform the judicial conduct process in order to protect the reputation of the judiciary.
Senator Dalphond: That answers my question.
[English]
Senator Batters: Thank you, minister. I see one member of the media here. There may be others. I wanted to make it clear right off the bat that this particular bill, because there would be public and media interest, would not apply to any case that may currently be — for example, the case of Supreme Court Justice Russell Brown — this particular bill would not apply. The current judicial disciplinary process applies in that case. Is that correct?
Mr. Lametti: That’s absolutely correct.
Senator Batters: Thank you.
Minister, your consultation process for this bill was seemingly quite extensive, as you have described and Senator Dalphond just spoke about, with respect to the legal and judicial community.
You didn’t consult with the Federal Ombudsperson for Victims of Crime, nor anyone else respecting the concerns of victims of crime. Given that the bulk of public outrage over conduct of judges has stemmed from mistreatment of victims of crime in some cases, it would seem that that perspective would be of obvious importance. That was the impetus for my former caucus colleague, and former interim Conservative leader Rona Ambrose’s, bill on judicial training.
Why did your government fail to consult with victims of crime, or their representatives, on a bill that could have a profound effect on their confidence in the justice system?
Mr. Lametti: Thank you, senator. That’s a fair comment. I will state that at the outset. We could have done better. The process was largely driven at the outset by judges themselves and the Canadian Judicial Council.
That being said, since you first raised this point, and I’m glad that you did, we have reached out to the Federal Ombudsperson for Victims of Crime. He is largely favourable to the initiative. He has come back with a number of smaller suggestions. We will continue that dialogue with the federal ombudsperson. I thank you for calling us out on that.
Senator Batters: Great. If you could provide those — I’m sure we may have him as a witness — but that would be helpful to us.
Mr. Lametti: We certainly can.
Senator Batters: Thank you.
Also, minister, where is your gender-based analysis document for this bill? I couldn’t locate it quickly earlier today. Given that the last GBA document that we reviewed from your department was on Bill C-39, that document was kind of devastating to your case.
Many of the cases that have generated public outrage about judicial conduct that was worthy of disciplinary conduct have involved major mistreatment of women. It would seem that a gender-based analysis document could provide some valuable insight on that issue. As senators, we should probably have this document before we question you so that we can get a better critique of that bill.
Mr. Lametti: Thank you. I thought it had been provided. We will provide it. It has been done.
Senator Batters: Thank you.
Minister Lametti, Bill C-9 does modernize the Judges Act, among other things, to improve the public’s confidence in the judiciary. While that modernization of the disciplinary process was certainly necessary, it has to be said that, as we have discussed before, a glaring problem facing our criminal justice system is court delays.
A significant problem with that, and one factor on which you as the federal government have complete control, is judicial appointments. When I pressed you on this in October, you said that, at that point, there were 89 judicial vacancies across the country. You indicated to me at that point that big improvements were coming.
At the beginning of March, there are still 86 judicial vacancies across the country. It is quite a shocking number. As you know, minister, the resulting court delays have led to very serious criminal charges being thrown out of court. That can really shake the confidence of Canadians in the judicial system.
Minister, when will you make the appointment of judges a real, key priority in doing your job?
Mr. Lametti: Thank you, senator, for that question. It is a key priority. I do work hard with my team to control the parts of the process that are within our control. I can assure you that we deal with those parts very effectively and efficiently.
I don’t control all parts of the process. I am pushing hard to make sure that those other parts of the process, which are there to ensure thoroughness and public participation through the judicial appointment committees, as well as other safeguards of the process — the police checks and that sort of thing — will move more quickly. I’m doing my best on that. There are a number in process right now, and will continue.
I would point out, though, that 95% of criminal cases in Canada are not heard by federally appointed judges; they are heard by provincially appointed judges. I’m working with the provinces and territories to make sure that we can help move those processes along as well.
Senator Batters: As you are completely aware, then, there are other parts of the justice system — family law court, civil courts — where Canadians are really being impacted by not having some of those judge vacancies filled because their cases are then taking a very long time, whether it’s a family law matter, an insurance matter or things like that.
Mr. Lametti: I share that concern, senator. Thank you.
Senator Batters: Minister, I also want to ask about the penalties that can be imposed under Bill C-9 in cases of judicial misconduct that do not meet the criteria for the removal of a judge.
Under your reformed process in this bill, there could be other penalties, which could include expressions of concern, warnings, reprimands, forced apologies, training, education or counselling, but Bill C-9 does not propose an option to either suspend a judge temporarily or dock their pay. Were those types of proposed penalties that you included in the bill the result of consultations?
In terms of a forced apology, what possible benefit could there really be for that, for either the judge or the complainant in the matter? Wouldn’t you agree that perhaps a suspension or a monetary consequence might be a more appropriate remedy in certain circumstances?
Mr. Lametti: Before turning it over to Mr. Xavier, with respect to monetary consequences, you may recall that we have attacked part of that issue in a previous budget implementation act where we prevented the accumulation of pension benefits pending. That was something the judges felt very strongly needed to happen, so we did that through the financial levers at our disposal.
The general sense behind other penalties is that the panels will determine appropriate penalties for judges. It’s really judges — don’t like using this as a verb — but they will be policing themselves. So it continues in that sense.
My own experience from a variety of different spaces is that apologies can be very effective and profound, both for the apologizer and the person being apologized to. But there are other mechanisms that are envisaged here. Perhaps Mr. Xavier can elaborate upon those.
Senator Batters: [Technical difficulties] Mr. Xavier who has been very helpful in the next hour, but with respect to the monetary consequence, yes, I acknowledge that with the pension issue; that is good. But I was wondering about a dock in pay or something like that. What would be your response about why that wasn’t included as a possibility?
Patrick Xavier, Senior Counsel, Judicial Affairs Section, Department of Justice Canada: Senator, with respect to the docking of pay, the idea behind the list of potential penalties that we find in Bill C-9 is that they are supposed to be consonant with a judge resuming their functions with the full confidence of the public. If a judge has done something so severe that their pay needs to be docked, there was a general consensus in the consultations, including from members of the judiciary that we are probably in the realm of it being so serious that removal is warranted.
The bar for judicial conduct is very high. The Supreme Court has made that very clear; judges really are expected to be a cut above in terms of how they conduct themselves, both inside and outside of the courtroom. If you are talking about something so serious that a docking of pay is warranted, you are probably into the realm of removal.
The idea was to create a list of sanctions that did not — we had to strike a balance between a list of sanctions that could remedy appropriate misconduct and one that would go too far and allow for the imposition of sanctions instead of removal. We didn’t want to create that incentive. We wanted to be sure that the list of sanctions appropriately reflected how high the mark for conduct is.
The Chair: We might follow up on this, Mr. Xavier, in the second hour. This is a good chance to return to our dialogue with the minister, if we may.
Senator Batters: If there is any time in the second round —
The Chair: Yes, we will see. Thanks.
[Translation]
Senator Boisvenu: Welcome, minister.
I’m going to follow up on Senator Batters’ question. In 2019, when Parliament passed Bill C-75, there were 65 judicial vacancies in Canada. Today, that number is 89. I’m trying to understand the government’s strategy for filling those vacancies.
Last spring, Quebec’s Director of Criminal and Penal Prosecutions said that Quebec’s justice system was on the brink of disaster. Nearly 60,000 cases are backlogged in the justice system. The fear is that a lot of criminals, killers even, will escape having to face justice. In 2019, just before the pandemic, the court system was struggling with significant delays. In Quebec, two murderers were never tried further to the Supreme Court’s decision regarding unreasonable delays.
I understand that there is currently a process for judicial discipline — which is very important to me, of course — but I’m trying to figure out why the justice system is still so bogged down in 2023. Those delays and postponements directly impact public confidence. Domestic violence cases in Quebec come to mind. Victims of violence are having to deal with a huge number of postponements, so much so that the court-prescribed deadline is close and the perpetrator may never be convicted. I’m trying to understand why things are worse today than they were in 2019.
Mr. Lametti: Thank you, senator. Things aren’t worse. First, I want to point out that we created 116 federal judicial positions all over the country. We continue to appoint judges at a significant pace. With judges retiring, however, timing can be a challenge, but we are working relentlessly to fill positions. I should say that we have more positions to fill, a lot more than we had vacancies. As far as delays are concerned, keep in mind that, as I told Senator Batters, 95% of criminal cases are heard by provincially appointed judges in provincial courts. That has nothing to do with the federal government.
Senator Boisvenu: The number of federally appointed judges is still higher in 2023 than it was in 2019.
Mr. Lametti: That’s not true, because we created more positions.
Senator Boisvenu: I asked you this question when you were here in 2021. As we know, the vast majority of judges retire at the age of 75. Typically, the new judge isn’t appointed until six months after the outgoing judge has retired.
Why don’t you start the process of filling the position six months before the judge retires? That way, you would have an incumbent when the judge retires.
Mr. Lametti: We do consider approaching dates. I should add that a lot of judges retire on a supernumerary basis. There are vacancies, but there are also judges considered to have retired but who continue to carry out their duties on a part-time basis. Filling positions is a team effort. We work with the provinces and territories so the system can run more effectively. We will continue to do that. On the federal side, things work fairly smoothly.
Senator Boisvenu: I have one last question. The administration of the judiciary does indeed influence public confidence. I may have misunderstood, but I thought you said that you conducted online consultations to give the public an opportunity to comment. Did I get that right?
Mr. Lametti: For this bill, yes.
Senator Boisvenu: How many people went online to comment on the bill?
Mr. Xavier: Approximately 72 people provided comments.
Senator Boisvenu: I see. To my mind, consulting victims groups is an essential step. Are you going to solicit their feedback? First and foremost, what affects people’s confidence in the justice system... Victims are at the centre of the system.
Mr. Lametti: As I told Senator Batters, it’s true that we could have done better. We established mechanisms like the office of the ombudsperson, and now we are getting in the habit of using those mechanisms regularly and in our day-to-day activities. As I said, further to Senator Batters’ efforts, we reached out to the ombudsperson for his views. I want to assure you that we will continue doing that going forward.
Senator Boisvenu: Thank you, minister.
[English]
Senator Jaffer: Welcome, minister. I also want to welcome your team. I compliment you for the staff you hire. It is a big day for me and people listening today.
I have been here for a long time. You got my message. Thank you so much. It means a lot to us for the people who are in your senior department. Thank you.
Minister, Senator Batters asked a question on gender-based analysis. You know, we know, it is GBA Plus. Whom did you consult for the “Plus”? It is not known to any of us. You are doing a very good job. I compliment you again for that. Who would you consult for the “Plus” to understand the issues?
Mr. Lametti: I will turn that questions over to my supporting team and, if we can’t, then I will come back to you with an answer.
Mr. Xavier: Thank you, senator.
GBA Plus, the analysis itself does not involve consultations in particular. It is important that the process apply in many ways in the same way, regardless of who makes the complaint. It’s the same with respect to judges. Judicial independence, in fact, requires that the process applies in the same way to judges, regardless of how they may identify. With a process like this that applies to everyone, that’s of paramount importance.
The council will elaborate rules and procedures for the different steps in the process. To the extent that there are specific aspects of certain steps that might apply differently to different individuals, depending on how they identify, that is something that would be spelled out more in rules of procedure than in the act. What is in the act is the high-level stuff that really shouldn’t vary from person to person.
Senator Jaffer: Maybe I didn’t make myself very clearly. I apologize for that.
I was asking, in your consultation, how would you know what the plus communities want? You look at issues of gender, ethnicity and everything, all the additional plus, in any bill? How have you assessed that? That is what I was asking the minister.
Mr. Xavier: Equity-seeking groups were not specifically consulted independently from the general public as part of the consultation process for this bill.
Mr. Lametti: Senator, Toby Hoffmann would like to jump in as well.
Toby Hoffmann, Director and General Counsel, Judicial Affairs Section, Department of Justice Canada: Thank you, minister. Thank you, senator, for your question. I was going to add, and hopefully it does shed a little more light, we do have professionals within our department who are specifically tasked to assist us with these analyses.
While we, as counsel, in looking at these legislative projects, bring our knowledge to bear, we also consult with them. I can say safely that they have a much broader scope of the field and are alive to these types of issues. I would add that for you, senator.
Senator Jaffer: Minister, I am sorry. I do not mean to belabour the point.
With the GBA consultation, do you not go outside your department? I’m not talking about the “plus.” Or do you just consult within your department?
Mr. Lametti: My quick answer is it depends on the context. It can happen, but it doesn’t necessarily happen. It depends on the nature and the complexity of the bill.
I would turn it over to Mr. Hoffman for a more procedural answer.
Mr. Hoffmann: Sorry, minister, I was going to rely on your answer. There may, indeed, be instances where there are external consultations. My understanding of what Mr. Xavier said, that did not occur in relation to this bill.
What I am saying, Senator Jaffer, is that the concerns aren’t tossed aside. We do have professionals internally as well who look at these issues with a view to bringing a fulsome analysis. I can say as counsel that we are often pushed to ensure that these issues are considered.
Thank you, minister.
Senator Jaffer: I will come back to this and discuss it with the chair.
Minister, one of the reasons from the day your government has been appointed that I understood, and I have kept explaining to our Chief Justice, is that you were looking at original committees that were recommending judges. The original committees who were recommending the judges, forgive me for saying this, but they normally, in the past, went to big firms. The bigger firms’ lawyers were appointed or nominated as judges.
You have a better process, but you are still working at it. If you are comfortable, may I ask, is that the holdup? In the past, we were being told that was the holdup. I do not know how to say it in a better way, but you were trying to get a fairer process off the ground so that there would be nominations from the whole bar, rather than from the big law firms.
Mr. Lametti: You are referring to the judicial appointments process now, senator? Okay, yes.
We have worked hard to make sure that the judicial appointment committees are representative. That can be one of the slowing parts of the process, not once they get appointed, but having to reappoint. We did extend the period from two to three years, precisely because we realized that having to recompose the committees every two years meant further delays.
We are course correcting. It is not, in and of itself, in the representation that it creates an additional challenge or time challenge in the system. It is a complex process in order to be transparent. We have to make all of the parts of the system work.
The Chair: Thank you, minister.
Senator Klyne: As already referenced by my colleagues, I too understand that the provisions of Bill C-9 are the product of extensive consultations with relevant stakeholders.
From your consultations with relevant stakeholders, what aspects of Bill C-9, in concrete terms, would have the most pronounced impact in yielding greater confidence in the justice system?
Mr. Lametti: I would say two of the things I highlighted in my speech. One is having a system that won’t drag on for years, having a system that won’t drag on because of lateral judicial review processes every time a decision is made five, six, seven times as a clear delaying tactic.
We have eliminated that by effectively creating a vertical appeal system with limited and specific numbers of appeal. The fairness to the individual is still protected. We’ve taken away this ability to bog down the procedure by constantly going to the federal court for a judicial review. That in and of itself is the biggest virtue.
The second is that we can have other penalties in addition to revocation. If a judge needs to have mandatory training, this body can force that person to have mandatory training. I can’t, as the Minister of Justice. The principle of judicial independence means I can’t go in and say, “You need to do this.” It has to be judges themselves, and that’s what this body will do.
Senator Klyne: That might lead to another question here. Currently, the Canadian Judicial Council is only able to recommend for or against the removal of a judge following a conduct process. There are no lesser sanctions available.
What options does the Canadian Judicial Council currently have when a judge is suspected of misconduct that is not serious enough to potentially warrant removal from office? How would this change under Bill C-9?
Mr. Lametti: For the time being, if it doesn’t reach that standard, if through the current process they don’t reach the standard of revocation, or if the council feels it doesn’t reach the standard of revocation, that’s it.
If they do reach the standard of revocation, they would go to the Minister of Justice. The Minister of Justice would then have to present a bill before parliament. I have reached that point in the recent past. Then the person in question took retirement. There isn’t a possibility for any of those other remedies.
[Translation]
Senator Dupuis: Thank you, minister, for confirming every time you submit an analysis. I think you appreciated the question. We, too, would have liked to receive it beforehand. You thought that the document had been provided.
I want to follow up on what Senator Jaffer said about people who are outside the judicial process. You rightly mentioned how proud we are of the independence of our system, which has credibility. Nevertheless, in Canada, on the ground, there’s a sense that something is lacking when it comes to proceedings, participation and decision making.
That seems to be echoed by the fact that victims groups weren’t included in the consultations at the outset. It’s troubling to see that the way things are done hasn’t changed. It’s troubling that a decision wasn’t made to consult from the outset not just those directly impacted by a potential removal from office — judges, themselves — but also those who have to live with judges’ decisions. I say that with the utmost respect for the judiciary. There are people on the receiving end of judges’ decisions and there are people who experience unacceptable comments, and you’re trying to fix that.
I have a question specifically about the scope of new section 157. Under the Constitution... Even senators don’t always realize that they can remove a judge from office, since it’s an excessive power. We boast about having an independent system, and we’re glad we do. The power is provided for in section 99 of the Constitution Act. My understanding is that it’s already in the Judges Act, which was passed in 1985. Why is it being kept in new section 157? Does new section 157 represent a substantive change from section 71 of the current act?
Mr. Lametti: Thank you for your question. What has changed is the process leading to the application of new section 157. Essentially, the current system was established in 1971, so it’s quite a few decades old.
In its own right, new section 157 preserves the independence of the judiciary, since the process leading to a judge’s removal by Parliament is an exceptional one. As I said, I’m not sure whether it’s something that has ever happened, but I know it hasn’t happened in the last 50 years.
Senator Dupuis: You’re saying that it doesn’t impede the judiciary’s independence or undermine the independence of judges because it’s an exceptional process.
Mr. Lametti: Yes, precisely, and the judges, themselves, lead the substantive process that precedes the section’s application.
[English]
Senator Pate: Thank you, minister, and thank you to all of your team for being here.
Since Bill C-9 was introduced, I have had a number of calls from folks concerned about transparency in the process and, in particular, why complaints that are anonymous will not be part of the initial screening process and how the public will be aware of what is coming in. We are not talking about breaches of privacy, obviously, but to know how many of these are anonymous, what the rationale for that anonymity might be, and I can imagine some of it in terms of some of the issues that came up around systemic misogyny, racism, ableism, class bias and that kind of thing.
I am curious how you plan to reveal that data — because I know you have a strong commitment to ensuring there is disaggregated data available on this — and how that will be made available.
As well, some concern has been raised about the lack of transparency about the process and how to access it. I am curious, as a starting point there.
Do you want me to ask it all, so you can —
Mr. Lametti: There is a lot in there already.
Senator Pate: Yes, okay, I will wait.
Mr. Lametti: Before I turn over the technical parts, transparency is critically important to the process. As a general rule of thumb, we don’t want to discourage anyone from making a complaint. Anyone can make a complaint. We don’t want to discourage anyone from making a complaint, whether that be an anonymous individual all the way up to the Attorney General of Canada.
What has been envisaged is a different kind of review process, depending on where the complaint comes from. If it is an anonymous complaint, then two members of the CJC, the Canadian Judicial Council, will review it to see if it should go forward.
Again, you want to take it seriously, but because it is anonymous, you have an additional safeguard in there. I think it is fair to say that there are different balances throughout. There is a greater role for lay people in the process, again, to help increase transparency, and my understanding is also that the CJC, depending on the process, can allow for other forms of written intervention by lay people — citizens — who may be involved in the process.
There are other technical parts of the answer, Mr. Xavier, perhaps, you would add in.
Mr. Xavier: No, I think with respect to the number of anonymous complaints, I just think that that would be for the council to set out in its annual report when it provides details on the process every year in the annual report.
This bill will require it to submit an annual report, but that is already the council’s practice.
The Chair: Senator Pate, you have a couple of minutes to ask your next big question.
Senator Pate: I apologize if I missed that detail.
Even if it is an anonymous complaint, there will be an expectation that the Canadian Judicial Council will report on the number and the nature of those complaints; is that correct?
Mr. Xavier: At least on the number. On the nature, I’m not sure how much detail the council can give. Under the circumstances, it will probably vary a little bit from complaint to complaint. That is maybe a question that might be better directed to the council.
Senator Pate: I am happy to do that. It would flag for you that one of the challenges, then, of collecting disaggregated data may not be having the nature of those kinds of complaints.
My second area of questioning is that the bill, like so many of these processes, is more reactive than proactive. I know there are some challenges around mandatory training, but there have been great increases in training for new judges. I am curious how the continual education will be impacted. What will be the avenue for feeding in?
Obviously, if there are a bunch of complaints about sexism, misogyny or racism, how will that be fed into the training process? Again, I will ask that of the Canadian Judicial Council, but it strikes me as something that you may be very interested in knowing as well, in terms of monitoring.
Mr. Lametti: They all feed into each other, and there is a virtuous circle that is created by all of these various measures put together.
As elected politicians, we can’t tell judges to undergo training. What we did do with Bill C-3, and the brilliance of Bill C-3 was using, effectively, the application process to say, “If you want to become a judge, you will have to go through this training.” So we have, in a sense, a contractual argument to say, “You have to do this training.”
Chief justices will tell you that that has helped, not just because all the new judges are receiving training, but it gives them additional levers with sitting judges, who may have otherwise been resistant.
So that helps. This process helps, the fact that there is a better disciplinary process. The fact that there are other kinds of sanctions that involve training, where a chief justice will be able to say to a member of the court, “You need to do this, because this is what the CJC’s decision was,” will help build, I think, a much more proactive attitude toward ongoing training.
We train in every single profession. We have ongoing training in pretty much every single profession that is out there. Why not have it here?
The Chair: Thank you, minister.
[Translation]
Senator Clement: Good morning, minister. Welcome to you and your team. On Saturday, The Globe and Mail published the results of a Nanos survey on Canadians’ confidence in institutions, and it reveals some troubling things about public confidence.
Why do you say the bill will increase Canadians’ confidence in the justice system, women in particular? After all, the bill doesn’t provide for full transparency when you consider new section 102. There’s a privacy element when it comes to the corrective measures. As soon as people hear the word “private,” they assume there’s an attempt to hide something and they aren’t happy about it. What makes you say that the bill will improve public confidence?
I’ll go ahead and ask my second question. How are you going to address that lack of confidence in your communications with the public once the bill is passed?
Mr. Lametti: Thank you. There will obviously be an outreach strategy, undertaken not just by us, as elected officials, but also by the Canadian Judicial Council. That will improve transparency.
I think bringing laypersons into the process will improve public confidence in the system, as will the fact that the process leads to more efficient and fairer outcomes from a sanctions standpoint. Minor sanctions can play a role in helping the public realize that the individual made a mistake, that something is being done to address the problem and that the person should be given a chance.
Generally, I think the public has confidence in the system. I am in the process of appointing judges who not only are highly qualified, but are also from very diverse backgrounds. They look like Canada. That is particularly important. I’ve had a lot of positive feedback from both lawyers and others about the fact that they are seeing judges who look like them. That goes a long way towards improving confidence.
It’s not just one thing. It’s a number of things at the same time, and I think we are heading in the right direction.
[English]
Senator D. Patterson: Welcome, minister. Excuse me for being late.
I would like to ask about the provision both in the Judges Act and now under Bill C-9 that a minister of Justice, or provincial or territorial attorney general, can request a full hearing panel to determine whether a judge should be removed from office. That’s been preserved in the new bill.
There is a constitutional principle of separation of powers to protect the judiciary from political influence. Does this provision engage issues related to the separation of powers?
Mr. Lametti: I don’t think it does because the decision-making power still remains with the judiciary. From my understanding of that power and provision is that it’s another input. Any Canadian can make a complaint. In some cases, it might be an attorney general or, in some cases, it might be people who go to an attorney general and say, “Look, I have this dossier here.” They leave it on your desk, and you have to decide, as attorney general, whether to put it forward to the council.
But it is the council that then takes it and decides, after a process, if the complaint is valid. They would have to come back to the federal Attorney General in order to seek revocation if that was the decision.
The actual substantive part of the process is still handled completely by the CJC.
Senator D. Patterson: Thank you.
The procedures for the misconduct complaints against federally appointed judges are currently set out in the Canadian Judicial Council policy document and bylaws. Now, under this bill, they are codified in the Judges Act, which gives them inflexibility. What was the reason for setting out the procedures in the bill instead of leaving them with the Canadian Judicial Council?
Mr. Lametti: I think there was a desire — and it came from the Canadian Judicial Council itself — to have a more entrenched set of procedures.
On the one hand, they have become more entrenched because we have put them in law. On the other hand, we have created a more flexible and efficient set of procedures in terms of substance. But the impetus, to my understanding, did come from the judges themselves. They wanted it to be more grounded in law as opposed to grounded in policy.
Senator D. Patterson: Thank you, minister.
Very quickly, under the new process as I understand it in Bill C-9, complaints alleging sexual harassment or discrimination bypass initial review by a screening officer. What is the reason for skipping that step?
Mr. Lametti: My understanding is that, because of the seriousness of the complaint, it immediately goes to a panel that includes not just a member of the CJC but a judge and a layperson. But I’m happy to have either Mr. Xavier or Mr. Hoffman add to that.
Mr. Xavier: That’s exactly right. We wanted to be sure, in the case of those complaints, that a decision maker familiar with the nature of the process and the nature of judicial misconduct took a look at the complaint and that it wasn’t just handled by a screening officer, who might not have the same familiarity with the nature of misconduct, because screening is a much more high-level function.
The Chair: Thank you, minister. I have three disparate questions. Maybe I will ask all three.
First, on the subject of consultation, one of the entities that has been a major contributor, for example, on issues of judicial ethics and whose views have been significantly welcomed and that have been also observers of the process is the Canadian Association for Legal Ethics. You didn’t mention any consultation with them. Can you confirm if they were in that consultation exercise?
Second, although streamlined, by my count, there are still at least seven levels of considerations of complaints. You mentioned the parallel with professionals. I don’t know of any other organization that has seven levels of process before a final conclusion is reached. I am interested in your comments on that.
Third, other professions, most notably law, include a provision that lawyers are not allowed to resign in the face of discipline. That’s not the case here. As a consequence, in every serious matter that we have seen in the Canadian Judicial Council’s consideration of complaints, judges retire before closure is brought to the issue, I think leaving the public unclear about whether the judge crossed the line meaningfully. So I am interested in whether you considered not allowing judges to resign in the face of discipline and built it into the legislation. That was my third question. Thank you.
Mr. Lametti: Thank you. I will come back to my colleagues in a moment.
On the last point, as I had hinted in my response to Senator Batters, you are right: The tactic of delaying and then resigning before one has a chance to bring up the bill to revoke was a huge issue. We did take away that financial incentive to prolong the decision by freezing the pension at the point the disciplinary proceedings start, so one can’t continue to collect and accumulate a pension.
The Chair: I was asking about it from the other end, which is not allowing them to achieve that goal so that the council or the Parliament can make a decision.
Mr. Lametti: That’s a fair point. I will leave it to Mr. Xavier or Mr. Hoffman to come back on this point.
The streamlining notion is also a fair point. We have vertically streamlined it and kept it vertical, but we feel there are still a number of safeguards for the person who is the subject of the inquiry.
I would leave it to Mr. Xavier to reply regarding both the Canadian Association for Legal Ethics and judges being allowed to resign.
Mr. Xavier: The Canadian Association for Legal Ethics was consulted. They provided feedback during consultations.
On judges being allowed to resign, there are very few cases where judges resign while a proceeding is ongoing. The point at which they resign is when there is no alternative, because the alternative is to sit through a removal procedure in Parliament. In other words, the verdict has been delivered as far as whether their misconduct was serious enough to warrant removal. That’s the point at which a judge would typically resign. It is very unusual that a judge resigns while the process is ongoing.
The Supreme Court has been very clear that the purpose of the process is to determine whether a judge, in those serious cases, should keep sitting or whether the judge continuing in the office undermines the confidence of the public. Stopping the process at the point where the judge resigns seems to flow from the way the Supreme Court has defined the purpose of the process as far as those most serious complaints are concerned.
The Chair: Thank you, Mr. Xavier.
We will soon move to a second round.
Minister, I wonder if you would indulge us for another 5 or 10 minutes. We started a little bit late. It would just allow a few more brief questions to be posed. The dialogue is a rich one, and I hope we’re all enjoying it.
Mr. Lametti: It is a busy day for me — we’re sitting — but I will do my best.
The Chair: Senator Batters, briefly.
Senator Batters: Absolutely.
Minister Lametti, on the public consultation part, I note that your consultations with the general public on Bill C-9 do not seem to be at all robust. The public consultations apparently consisted of an online survey, and a review of correspondence received from the public about this topic. I may have misunderstood, but I believe that your official indicated that 72 people, only, responded to the online survey. Perhaps that was about correspondence, I’m not sure, but if it’s 72 people, that is actually shockingly low.
Given the length of time you worked on this bill and the public outrage that has occasionally occurred on issues of judicial disciplinary conduct in the past, why didn’t you do a more robust public consultation?
Mr. Lametti: My sense of it is that the technical nature of the bill, and given the very select group of Canadians who would feel they have expertise on the bill or would feel they would have a reason to speak out on the bill, would explain the low numbers. On MAID, we had hundreds of thousands of people jump in with very little pushing. Part of it is the narrow and very technical nature of the bill; that explains that.
That being said, I’m pretty confident that, given the stakeholders that we did consult, given the experts that we did consult and the work that the judges themselves did on this bill, we have come up with a good balance that reflects the very positive set of changes moving forward.
Senator Batters: Is it correct that there were only 72 who responded to the online survey? Is that right?
Mr. Xavier: That’s my recollection, senator, yes.
Senator Batters: Okay. Thank you.
Senator Jaffer: Minister, you have been the first minister in my experience that has made gender-based analysis, GBA, available to the committee, and I appreciate that. Next step, I would like to ask you — because I was confused with the answers — how you conduct GBA. You won’t be able to answer now in this very short time. Perhaps you could send that to us in writing because I’m not quite convinced with the answers as to the technical nature — not with Senator Batters’s question but with my question. How is the public consulted? From what I understood it was within your department, so I have concerns about that.
The Chair: Would it be possible, minister, for your department to provide that in writing?
Mr. Lametti: Yes, I will undertake to have that provided.
[Translation]
Senator Dupuis: I have a question about new section 80, provided for in the bill. A concept is being introduced in relation to the removal of a judge. The last paragraph of the provision reads as follows: “the judge is in a position that a reasonable, fair-minded and informed observer would consider to be incompatible with the due execution of judicial office.” It appears that a new legal concept is being introduced in the French version. Similarly, the concept of a “reasonable, fair-minded and informed observer” is being introduced in the English version.
Why introduce these new concepts, instead of referring to a reasonable person, for instance? In other words, the concept and adjectives that were chosen seem to allow for the preferential treatment of judges. I’m not sure why, so I’d like to understand the rationale behind it.
Mr. Lametti: Before I turn things over to Mr. Xavier, I want to say that it isn’t a new concept. Not only does the concept of a reasonable person already exist, but so does the concept of a reasonable person in the circumstances or who has knowledge. That exists in the Evidence Act and in Charter interpretations already. To me, it’s not a new concept, but I’m not sure what Mr. Xavier thinks.
Mr. Xavier: That’s correct. The minister is absolutely right. It’s a concept that already exists in the jurisprudence. The determination as to the judge’s removal from office actually has to be considered from the perspective of a reasonable, fair-minded and informed observer. It is precisely that perspective that must be applied under proposed paragraph 80(d).
I believe you were referring to that provision. The bill simply lays out the concept more explicitly. Paragraph (d) is just a new formulation of what already existed. It’s not really a substantive change.
Senator Dupuis: Thank you for clarifying.
[English]
The Chair: Senator Dupuis, I apologize for interrupting you, but I want to give Senator Klyne the chance to ask one last question, if I might.
Senator Klyne: Does Justice have an Indigenous advisory committee? If so, was the counsel of that committee included in the extensive consultation?
Mr. Lametti: We are getting better as a result of the United Nations Declaration on the Rights of Indigenous Peoples, also known as UNDRIP, and with the ongoing discussions that we’re having to create an action plan for the implementation of UNDRIP and the principles behind it which will more effectively implement Indigenous input, if you will — co-development, development, input, consultation, depending on the circumstances — into every aspect of the bill. We’re still in early days, and while we do attempt to do that in the creation of every bill, we’re going to make it much more routine in the creation of every bill as we move forward.
We do think this bill will help an Indigenous person, for example, who wants to make a complaint, who undergoes a judicial process which has, in some way, offended or violated or insulted or demeaned. All of that has happened; we admit that. By having a better complaint process — a complaint process that might, for example, include an Indigenous person as a layperson or by having more Indigenous judges appointed to the bench, we will get to a better place.
Was this particular bill conceived in the same process under which it would have been conceived post-UNDRIP? The answer is no, but we’ll get there.
The Chair: Thank you. If we can squeeze one more minute out of you, Minister Lametti, Senator Boisvenu has a question.
[Translation]
Senator Boisvenu: I’ll be very quick. Thank you very much, minister, for staying a few extra minutes.
Public confidence depends on fair sentencing on the part of judges.
Further to Bill C-9, you said that you were confident that judges would give prison sentences for serious crimes like sexual assault.
There were two cases in Quebec where people were sentenced to house arrest. Quebec’s justice minister called on you to amend Bill C-9. What was your reaction to the request from Quebec’s justice minister?
Mr. Lametti: In the second case, it was only relating to the arguments. As Attorney General, I cannot comment publicly on a case that a judge is in the process of deciding. That would be a breach of my obligations to the justice system.
Senator Boisvenu: However, the minister, himself, asked you to do something.
Mr. Lametti: I am not going to comment on what the minister said regarding a case that is currently before the court or that could be appealed.
Senator Boisvenu: The man was sent home to serve his sentence. His case is no longer before the court.
Mr. Lametti: My position is the same. In other words, serious crimes deserve serious consequences. We gave discretion back to judges. I’m not concerned that we will see a wave of sexual assault cases in which the perpetrator will simply be put under house arrest. Sexual assault is a serious crime that deserves serious consequences.
[English]
The Chair: I extend thanks, Minister Lametti, to you and your colleagues, for, as usual, a rich and engaging conversation with us. Some of us — and perhaps you, yourself — would enjoy carrying on for hours, but I know you have commitments and so do we. We now give you a chance to slip away to your other duties.
We turn now to the second panel.
We have been joined again by officials of the Department of Justice, and in particular if I might introduce one additional member of the team of officials who are joining us, Ms. Riri Shen, Deputy Assistant Deputy Minister, Public Law and Legislative Services Sector. There will be no presentations here, but we will move right into questions for our judicial colleagues who have joined us.
Senator Batters: Thank you to these witnesses and officials. You have been very helpful on this particular topic in helping me get up to speed as critic of the bill. So I appreciate that. Thank you.
I was able to cover a fair bit of ground with Minister Lametti, so I have fewer questions for you. One of the questions I want to just focus on is that public consultation. We have found out that the online survey only had 72 people respond to it. The other part of public consultation was a review of the correspondence received from the public about this topic. How many pieces of correspondence are we talking about for that part of the public consultation on Bill C-9?
Mr. Xavier: That’s a good question, senator. I don’t have a number for you. It was correspondence received over the course of 10 years, so there was quite a bit of it. I have to say that was really the useful part as far as getting a sense from members of the public about what they thought of the process. The minister is absolutely right. The technical nature of the bill was just — it somehow wasn’t conducive to eliciting comments from the general public. When we looked at correspondence, what we had was a rich amount of material where people either had interaction with the process that left them dissatisfied or were commenting on something that they had read. So they were commenting as informed citizens, and that’s why that correspondence was especially useful to us. The themes that emerged from a review of that correspondence coincide with the major objectives of this bill, so cutting out judicial review sanctions for misconduct that isn’t serious enough to warrant removal; and involvement of laypersons in the process, that was another major theme.
Also, it was very clear from the correspondence, from people who had had interactions with the process, that they were confused about the process, because they found it very difficult to understand how it worked because of the way it’s set out in basically three different areas. Currently you have the enabling provisions in the act, and then you have a procedure that covers part of the initial stage of the process, and then you have a bylaw and then the bylaw and the procedure overlap slightly. People found that very confusing and wanted the process to be set out in the act. That’s probably one of the most frequent things we heard through that correspondence.
Senator Batters: I imagine a lot of people, maybe even some that are watching today, would be a bit confused about the fact that not all judges are appointed by the federal government.
Mr. Xavier: For example, yes.
Senator Batters: This act only applies to judges that are appointed by the federal government, which would be, in the province of Saskatchewan, the Court of King’s Bench — previously the Court of Queen’s Bench — the Saskatchewan Court of Appeal and the appeal courts across the country, the Federal Court of Canada, the Federal Court of Appeal and Supreme Court of Canada and some of those other federally appointed judges, but judges of, for example, the lowest level of the criminal courts, the provincial courts, the small claims court, are not covered by this bill. They are covered by their particular provincial governments and provincial bodies and they deal with this.
I am wondering when your consultations with provincial and territorial governments occurred, because your government started these consultations on this bill in 2016, I believe, so it’s quite some time ago, seven years ago now, and many of the provincial and territorial governments have changed in even the last few years. Much of this is technical in nature, but there certainly could be differences in how different provincial governments approach this sort of area. I’m just wondering if you can tell us when those consultations occurred. Did they occur only early on and then very little in the last few years? When did those occur?
Mr. Xavier: It was early on. It was in 2016. I don’t know if this helps or not, but we wrote to other justice departments. So the responses came from provincial deputy ministers of Justice. The engagement at the provincial level was not very high. In fact, we only received four responses —
Senator Batters: Four, did you say?
Mr. Xavier: Only four, yes. Only four provinces and territories were interested in responding.
Senator Batters: Do you recall which provinces you received responses from?
Mr. Xavier: Alberta, Saskatchewan, Ontario and Quebec.
Senator Batters: Great.
Mr. Xavier: Their responses were mostly focused on two questions in the discussion paper. We sent them the entire paper, but they mostly focused on two questions, which were the questions that really dealt with the provinces directly. We had asked whether attorneys general should continue to be allowed to require public hearings into a complaint. Anyone can make a complaint, but currently the attorneys general can require public hearings. We asked whether that should continue, and if so, whether attorneys general should be limited to requiring public hearings about the judges of their own jurisdiction. Those two questions were included in the discussion paper, and most of the feedback in those pieces of correspondence from those four provinces focused on those two questions alone. For the rest, they just indicated they had no concerns.
[Translation]
Senator Boisvenu: Thank you very much for being here. I have three or four quick questions. First, once the bill is implemented, judges could be subject to sanctions other than their removal from office. Is that right? What mechanisms have been set out? Say a judge makes a mistake in relation to a sexual assault case and is ordered to take training but doesn’t comply. What happens next?
Mr. Xavier: The bill does not set out any such mechanisms. If the judge does not do what they are told, another complaint could be filed by the chief justice of the judge’s court. That is the mechanism that would apply, and the second complaint would be more serious.
Senator Boisvenu: Let’s say that happens and the review mechanism kicks in. Basically, it’s like a second complaint. What would happen if a judge made an error or misstep while carrying out their duties and received a sanction below removal but didn’t comply?
Mr. Xavier: It would be up to the council. The seriousness of the matter could well escalate to the point that it would warrant removal. It would be up to the council to decide.
Senator Boisvenu: That would allow for something of a progression, so it could take months, if not years, for things to escalate to the point of removal. Isn’t that right?
Mr. Xavier: I spend a lot of time reviewing judicial misconduct cases provincially. A number of provinces already allow for lesser sanctions, below removal. I can’t think of a single case where a judge did not comply with the sanction imposed. That is extremely rare, and I’m not aware of any such cases if it has happened.
Senator Boisvenu: I compared the old process with the new process set out in the bill. As far as the old process goes, there’s an extra step. Fundamentally, here’s what I’m trying to understand: What is actually going to change for judges who make serious errors?
Mr. Xavier: Do you mean —
Senator Boisvenu: I mean in terms of applying the previous legislation versus the new legislation.
Mr. Xavier: It depends on which stage of the process you’re talking about. For the most serious complaints, the judge will have more recourse, especially from an appeal standpoint. Currently, at the council stage overall, there isn’t much recourse available to the judge. The judge has the right to submit observations to the council on the inquiry committee’s report overall, and that’s it. There is no hearing or anything else. With an appeal panel, the judge will have the right to a hearing and have the opportunity to answer questions.
Senator Boisvenu: Did you simulate how long the new process would take versus the old process? If a judge’s removal took two or three years, say, under the old process, how long will it take with the new process?
Mr. Xavier: It’s hard to say for sure. The council has to develop the policies for each step, and those policies will set out the time frames. For example, how long will a judge have to submit observations on the complaint and to respond to counsel fulfilling the role of prosecutor? All of those procedural elements will have to be decided by the council. How long the process takes will depend on that.
As for what’s being gained, judicial review comes into play. It will be replaced by a much faster appeal process. We are shaving about two years off the process. In the case of a complaint that reaches the judicial review stage and the right to appeal to the Supreme Court, the process will be about two years shorter.
Senator Boisvenu: How long does it take to remove a judge now?
Mr. Xavier: Again, if the complaint goes —
Senator Boisvenu: Not many judges have been removed in the last hundred years. Almost all the judges stepped down before they were sentenced.
Mr. Xavier: They resigned before Parliament was able to proceed with their removal.
Senator Boisvenu: Do you know of any cases in which judges were removed?
Mr. Xavier: Not by Parliament, no. Parliament has never removed a judge.
Senator Boisvenu: Under the bill, will we have the ability to remove judges, or will we have the same system whereby the judge is reprimanded for a serious mistake and resigns?
Mr. Xavier: It will be the same system. It’s hard to see why a judge would stay on the bench while Parliament was removing them from office.
Senator Boisvenu: What’s the point of the bill, then? The outcome will still be the same, with the judge deciding to step down prior to having to go before a disciplinary tribunal.
Mr. Xavier: The judge will go before the disciplinary tribunal. Currently, judges resign once the process has resulted in a recommendation to remove the judge from office. Once the judge has gone through the process and it has been recommended that they be removed from office is usually the point at which the judge steps down, so before Parliament has an opportunity to proceed with the judge’s removal, which is really just a formality. The sanction has been laid out. It’s clear that there has been serious misconduct on the judge’s part and that they must be removed from office. Typically, that is when the judge resigns.
Senator Boisvenu: What is the difference in terms —
[English]
Senator Jaffer: Thank you very much to all of you, and welcome Ms. Shen to the panel.
Mr. Hoffmann, I want to go back — and it won’t be a surprise to you — to the last answer you gave. I’m a little lost about when you said that you consult or have discussions about the analysis among yourselves. I may have misunderstood you, so I apologize. Did I understand you?
Mr. Hoffmann: Thank you for your question, Senator Jaffer. All I meant to say is that we have professionals within the Department of Justice that are specifically tasked to assess these kinds of issues. We, as counsel, in assisting the minister and the deputy minister of the department look at these issues, but we understand and appreciate that we may not have all the necessary knowledge. Therefore, we rely on our colleagues who are experts in that field to help us raise issues up, to make us alive to certain issues and to challenge us in terms of the analysis. That’s all I meant to say. I would like to say we’re the best, but we don’t know everything, senator. So we do have to consult with colleagues in the department.
I would say generally, as a department, that what makes us rich is that we have people who are entrusted with reviewing different issues as they concern the bill — GBA analysis as well as Charter analysis.
Senator Jaffer: Yes, you are the best, that is true. I agree with you.
Mr. Hoffmann: Thank you, senator.
Senator Jaffer: Justice has always had the best people working for it. With the greatest of respect — I don’t mean to be rude — I don’t think you necessarily know the communities. Some of you might. I’m not trying to be disrespectful or anything, but how can you analyze the whole community when your department doesn’t really reflect the new Canada? I’m lost on that. For the GBA Plus, perhaps, yes, because I understand more than 50% women, but for other communities — for the “Plus.” There are all kinds of communities. I may be all wrong, and I understand what you are saying that you have professionals who do that. I get that. But somebody who analyzes what your community needs or what the community lacks is not what I want. I want the community to speak for itself. I’m sure you understand where I’m coming from. That is why I am asking that question.
Mr. Hoffmann: Thank you, senator. That’s an excellent question. I hope you didn’t take from what I said that I meant to say that we have cornered the market on what everybody in every community thinks. Definitely not.
Senator Jaffer: No, I didn’t take it that way.
Mr. Hoffmann: Thank you. Your question is an excellent one, I will say it again. Mr. Xavier has spoken about the consultative process that occurred in this file. There are always opportunities for members of the community in the absence of any process to raise concerns with the department or the minister in relation to any legislative project. I can’t put a number on it, senator, but we have had an enormous amount of correspondence in our department with people who raise questions in relation to a whole host of issues.
In the department, we as officials are mandated to assist the department in responding in a timely fashion. It is my hope that people out there who have specific concerns would avail themselves of those opportunities as well.
Senator Jaffer: Thank you. I would like to wait for the ministers to send us analyses of how GBA Plus is done, and if I have more questions, I would ask that you and steering to respectfully look at whether to recall the officials back.
The Chair: Yes. We will do that, Senator Jaffer.
[Translation]
Senator Dupuis: I’d like to continue along the same lines, Mr. Hoffmann, and another witness may want to jump in. Thank you for being here today.
A certain number of organizations and the general public were involved in the consultation process leading to the bill on the judiciary. I made a comment earlier, and it had to do with the fact that certain groups or members of the public or society didn’t feel as though they were involved in the process. The minister’s answer made me wonder, because they weren’t consulted until late in the process. Victims’ views aren’t reflected. However, we are talking about people who today feel that public processes generally, including those related to justice, should have a requirement to consult everyone who plays a role, whether directly because they apply the laws or because they are subject to the laws or the bad decisions or measures.
Here’s my question. I understand that there were policy objectives and that you were trying to create an efficient process — orders come in and they have to be dealt with quickly — but does Justice Canada have a clear policy when it comes to consultations? I fully realize that, for GBA plus, you have a team in-house, but they, too, can have expertise. Does Justice Canada have a clear policy requiring that those to whom the law will apply be consulted? I mean not only those who will be applying the law, but also those who will be subject to the law and who are likely to interact with it.
Mr. Hoffmann: Thank you for your question, senator.
I would say that, in our department, we are very aware of the importance of consulting a lot of people. I think the minister said that we are in the midst of increasing our knowledge and improving our processes related to that requirement.
Mr. Xavier: I just want to mention, as Senator Batters did, that the consultation process was partly carried out in 2016-17. That was seven years ago, unfortunately, and things have changed a lot since then. That’s the reason. The bill’s introduction was unavoidably delayed, and I can elaborate on that, if you’d like. It explains why the consultation process was undertaken so long ago, and of course, things have definitely changed since then.
Senator Dupuis: I imagine that the department’s new policy now includes a line to broaden the consultation process, since it took so long between when the first iteration of the bill was introduced and the third iteration. Is that right?
Mr. Hoffmann: Within the department, we also had personnel changes, people such as myself, Ms. Shen and Ms. Azimi.
[English]
We don’t corner the market, but we have a broader perspective. The department has made it clear that, in terms of the people it hires, hopefully, we can bring that to bear, senator.
[Translation]
Senator Dupuis: It’s interesting you bring that up, because that’s exactly what I was talking about. Individually, you shouldn’t have to bear a departmental responsibility towards society.
Mr. Xavier, you didn’t get much time earlier to answer my question about the concept of a reasonable and fair-minded observer. The Quebec bar association has concerns about that language. Could you please clarify what exactly is new and what existing idea is being reiterated?
Mr. Xavier: It is more or less paragraph 65(2)(d) of the current Judges Act, which is being reformulated somewhat. The judiciary was consulted extensively on the provision because what it does is allow for a judge to be removed from office because of something someone else may have done.
It’s really hard to find an example. It’s not entirely obvious. The council wanted to make sure that new section 80 covered every possibility, that all scenarios that could give rise to a judge’s removal from office were captured. For that reason, it was necessary to come up with language that seemed appropriate and captured the concept. The idea of a reasonable observer is the perspective that is supposed to be applied in any case, and so it was captured in paragraph (d). The Supreme Court made that clear in its rulings on judicial conduct, so the idea was taken and laid out explicitly in the bill to convey that fact.
Senator Dupuis: Thank you, Mr. Xavier.
[English]
Senator Klyne: Welcome. Bill C-9 raises infirmity as a justification for removal from office. Intuitively, there could be an understanding there, but you elaborate on your understanding and intent.
Mr. Xavier: We kept the language of infirmity because it has been challenged in court and it was upheld. The courts found that it basically means a medical condition that leaves a judge completely unable to fulfill their functions. Because that term had received judicial consideration, we kept it in there. That’s what it means.
Senator Klyne: So the framework or guidelines around this would be the precedence of what has been declared once already.
Mr. Xavier: Yes, it has to be applied in a manner that is entirely consistent with the Charter of Rights and Freedoms. It cannot possibly capture, for example, a disability for which reasonable accommodations could be made.
Senator Klyne: Thank you.
Senator Dalphond: To follow up on the question of Senator Dupuis about the concept.
[Translation]
The Quebec bar association is concerned because “reasonable and informed person” is typically the language that’s used. Here, though, the bill refers to an “observer.” In English, it says “reasonable, fair-minded and informed observer,” but I see that it’s an idea the Supreme Court referred to in 2013 in Cojocaru. That means it isn’t an unknown concept in law. In our jargon, however, it’s fairly new.
My question ties in with Senator Boisvenu’s. He asked whether the process had really been made simpler. I want to check two aspects of the process with you.
As I understand the current process, when a matter is serious enough, a review committee does somewhat of a screening and determines whether the judge could be subject to removal from office as a result. The matter is then referred to an inquiry committee.
The committee can recommend that the judge be removed from office, but under the current system, the recommendation has to be endorsed by the Canadian Judicial Council as a whole, in other words, the 40 or 47 chief justices and associate chief justices. Under the new system, the inquiry committee’s decision is binding and does not need to be endorsed by the council, which is no longer involved in the process. That’s the first step being eliminated from the current process. Do I have that right?
Mr. Xavier: Yes, precisely.
Senator Dalphond: A second step has been eliminated: In the current system, once the council has successfully confirmed the decision — I can tell you I’ve been close to that before... When you have a committee of 40 people, and a committee member is sick, and you can’t take judges from the same province as the judge concerned, it’s hard to get a quorum of 22 or 23; it’s complicated.
To that end, the council had to amend its bylaws to make a quorum of 17, because there were not enough qualified or available people, or enough people who were not disqualified because of possible conflicts of interest. At this stage, there were lawyers who argued that the process should be done in both languages. There were chief justices who did not speak French, and there were cases from Quebec that were in French. Everything had to be brought before the council for adjudication. Is this time-consuming and costly step disappearing?
Mr. Xavier: Yes, exactly.
Senator Dalphond: This second step that is disappearing was a long and expensive one, once the council confirmed the decision that Madam Justice So-and-So — actually, it was always men who were recommended for removal, never a woman, so I’ll say Mr. Justice So-and-So — was removed. That judge could then go to federal court to challenge the decision.
If he lost in federal court, the judge could go to the Federal Court of Appeal. If he lost again, he could go to the Supreme Court, if given leave to do so. So this second stage, which I’m going to call “judicial review,” is replaced by the appeal committee, which will play the role of the federal court and the Federal Court of Appeal?
Mr. Xavier: Exactly.
Senator Dalphond: So the time involved is being reduced again by a year and a half to two years, because if you go to federal court and then to the Federal Court of Appeal, the minimum is one year, but it really takes two to three years.
Mr. Xavier: That’s exactly right, yes.
Senator Dalphond: They can then go to the Supreme Court, if granted leave, as in the current system?
Mr. Xavier: Yes.
Senator Dalphond: If you look at it objectively, they withdrew two important steps from the process, including the steps in federal court, and took a year to three years off the clock?
Mr. Xavier: That’s it, exactly.
[English]
The Chair: We got to the question, finally. Any more questions? A very brief answer.
[Translation]
Senator Dalphond: I wasn’t sure if Senator Boisvenu understood these steps.
Here is my other question: In the history of Canada, how many judges have been recommended for removal since 1970, since we’ve had the current process in place, and how many have resigned? We know that none of them came to Parliament and they all resigned in the end, but how many judges have been involved in a process like this since the 1970s?
Mr. Xavier: Five judges completed the process, and there was a recommendation for their removal at the end of the process that was forwarded to the Minister of Justice. Three of them resigned at this stage. Justice Girouard decided to mount a legal challenge in federal court. He resigned when he lost there. There is Justice Dugré, who is in the process of challenging the recommendation for his removal from office in the federal court. So that’s five judges in all.
[English]
Senator Pate: Thank you for that information. Although as we know, part of the reason for this bill — and two previous iterations, or more — is that part of the challenge is that these complaints have rarely been taken seriously in the past, and it is more recent awareness that has caused these sorts of bills to be introduced.
I am curious to what kind of stats — you heard the question I asked the minister, what kind of stats you are requesting and disaggregated data that you are directing the Canadian Judicial Council to take note of? I know you can’t direct them, but obviously there is collaboration and good, cooperative work between you. How do you see this bill and the approaches — what are some of the corollary work being done? Because clearly it is not just this. There is education and negotiation and policy development that will contribute to this. How do you see us addressing the issues of judicial bias, that is very clear?
Part of the reason the public is demanding transparency is because of abundance evidence of judicial bias when it comes to race, class, gender, ability. How do you see that playing out? What are some of the other mechanisms? What are the things this bill improves upon that you have not already mentioned and what are some that you are going to be monitoring this and suggesting additional changes going forward?
Mr. Xavier: Key improvements in this bill, along this vein, including laypersons is a critical improvement. You will note in Bill C-9, the council is directed to take the diversity of Canada when they set up panels. That’s something they have to take into account when they determine how to select these laypersons and place them on the roster. It is something that also they have to take into account when they determine which judges are part of this process.
As was mentioned earlier, complaints involving potential discrimination, and sexual harassment and so on, will not be subject to the screening functions, so they will be moved directly into someone with substantive knowledge of judicial misconduct. This is to ensure that those complaints are looked at by somebody who is really familiar with the nature of judicial misconduct and the ways in which it can have discriminatory overtones and so on.
In terms of the data, in a way, your question, Senator, is an excellent one, but in a way it is a little bit too early, because this bill has not yet been passed. We will have to talk to the council about the kinds of data they provide in their annual report. They are required by this bill to provide an annual report, and as I stated, it is already an existing practice. We hope the data from that annual report will help us appreciate how things are going and whether adjustments need to be made. The other source of some data may be section 147, a section that will provide for periodic reviews of all costs paid through the consolidated revenue fund. And that may also provide additional data on the nature of complaints and how long complaints take to go through the process and so on.
I hope that answers your question, at least in part.
Senator Pate: It does. So one of the things that strikes me in discussions I’ve had with some members of the Department of Justice in the past is, has there been an analysis of the situations where judges have been penalized, if I can put it that way, for taking judicial notice of areas that are particular to their expertise? I think of Corrine Sparks and others, whose expertise was characterized as discriminatory treatment, as opposed to a recognition of increasing need to diversify the bench? Has there been a look at some of those examples as you are developing legislation like this.
Mr. Xavier: I’m not aware that that’s exactly how bias has worked its way into judicial decision making — has been part of the process for this bill per se, because that goes to what constitutes misconduct. And what constitutes misconduct is something that very much needs to be left to the judiciary to determine. So a bill like this cannot really prescribe what constitutes misconduct in a particular way. Perhaps I’ve misunderstood your question?
Senator Pate: Well you may have or I may not have articulated it well. I apologize for that.
I think there are many examples of cases where previously seen as inappropriate conduct by a judge is now seen as appropriate conduct in the current situation in which we find ourselves. The only way that I can see that this has been incorporated is in attempts to provide additional education, when these types of measures provide other avenues, other ways to provide greater impetus. I understand from the minister’s comment that part of what you are trying to do is also provide greater . . .
Mr. Hoffmann: I understand the question now. I think judicial education and the provisions of the Judges Act regarding social context will be key in raising awareness, as the minister alluded — that is in cases like Justice Sparks. It is in a process, because she has taken judicial notice of a problem with a societal ill, that she is then subject to discipline. Hopefully, we’ve progressed as a society.
The Chair: I have a couple of questions before we move to a brief second round.
You made the observation that one of the features of this bill is greater lay representation, but layperson participation only occurs at two of the various levels. In some cases, it is curiously excluded; for example, in the reduced hearing panel, there is no lay representation. In the full panel, there is. Related to that, judges get to choose whether they want to pursue the reduced panel or the full hearing panel. If they choose the reduced panel, it is mandatory under the legislation that such a panel be used.
It is ad hoc, almost, in predicting whether laypeople will be involved. If you take, for example, anonymous complaints. With respect to the Canadian Judicial Council, if I may say so, we have seen bizarre decisions at the front end. If one thinks of Justice Smith in Thunder Bay, almost no one can understand why that matter actually proceeded. There are likely to be many that are unusual and have been removed from the process. But that would have been a natural place for lay representation, I would have thought.
Can you speak a little bit about that? Then I have one other question.
Mr. Xavier: Certainly. Lay representation will be included for those two principal steps that involve findings of misconduct. At the review panel level, the review panel will be primarily responsible for determining whether misconduct has occurred that is not serious enough to warrant removal. The review panel is also the gatekeeping entity for full hearing panels that will look at any case that is potentially serious enough to warrant removal. The full hearing panel will also include a layperson, and that is the panel charged with determining whether a judge should be removed from office and with making that a report to the Minister of Justice.
Judges can’t choose between the full and reduced panel; they don’t have that option. If the review panel at that initial stage finds that the complaint is so serious that removal might be warranted, it goes to the full hearing panel. There is no option for the judge; they have no choice. It goes to a full hearing panel.
The reduced hearing panel only comes in if the judge is dissatisfied. If the review panel has found that the matter is not serious enough to warrant removal but that there was misconduct and it has imposed some form of sanction, and the judge is dissatisfied with some aspect of the review panel’s process, then they can take the matter to a reduced hearing panel.
The reduced hearing panel does not include a layperson because it is meant to address a very specific potential issue with the review panel’s process. The review panel only proceeds in writing; it will not hold any oral hearings. For the vast majority of complaints, that should be just fine. There might be the odd complaint where, because of the nature of the complaint, the principles of procedural fairness might guarantee the judge the right to a hearing of some kind or, for example, the right to cross-examine a particular witness or adduce certain kinds of evidence.
If the judge feels that their procedural rights have not been respected or they want a more fulsome process — they want a public hearing — that’s where they can exercise the option to go to a reduced hearing panel. The job of that hearing panel will be to ensure that the process provides the required level of procedural fairness.
The questions that a reduced hearing panel will be facing — we don’t expect there to be many of these — will likely be more technical in nature, probably revolving around questions of evidence. As a result, it seemed better to have the third person on that panel be a lawyer rather than a layperson, because it seemed like technical knowledge of legal proceedings would probably be at a premium in that type of hearing.
The Chair: My second question is one of statistics. I will riff on the questions of Senators Jaffer and Pate. The legislation in subclause 160(1) identifies the requirement of an annual report and some specific statistics that must be provided. However, what would be far more valuable is not just the number of complaints and complaints dismissed but subcategorization. I will identify a few suggested to me: complaints based on gender, race or disability, if those are disclosed by the complaints — the areas of law around which there are complaints. The legal profession, for example, categorizes the numbers of complaints in criminal law or real estate to be able to determine the competence of lawyers in some of those areas is lacking or if they don’t understand their ethical obligations.
You could easily, it seems to me, have required that in the legislation as part of the annual reports, but you didn’t. My question is around whether you should. As important as Senator Jaffer’s question is, understanding where these complaints are coming from and what’s happening to them in categories of the public seem to be awfully important.
Mr. Xavier: We were wary of over-prescribing the CJC. We ourselves don’t deal with the conduct process from day to day. There is nothing that prevents the CJC from including all that information in its annual report; we very much hope they would do so. That’s a question I would invite you to put to the council when they come before you. It would be incumbent upon the council to provide as much information about the nature of complaints as they possibly can in their annual report.
There is no reason the council could not do that, and it is my understanding that they have every intention to do so.
The Chair: Thank you very much. I exceeded my own time, so I apologize to my colleagues. Or maybe, Mr. Xavier, you exceeded my time.
Mr. Xavier: I probably did. I talk far too much. I apologize.
Senator D. Patterson: It is a chair’s prerogative.
To the witnesses, I understand that, following the House of Commons Standing Committee on Justice and Human Rights’ study of this bill, it was amended with respect to complainants to require a review panel to inform a complainant if their complaint is dismissed and the reasons. That’s a move toward transparency, which I know the government accepted, which is good.
However, could the proposed complainants process be more transparent? For example, could complainants be further included in the new process by, for example, giving them the opportunity for submissions about their complaints to review panels or hearing panels? Do you have any comments on that idea?
Mr. Xavier: It is possible that in a given process, a complainant would be given standing. That has happened before. It would be for the council to prescribe in its procedures.
It’s important to appreciate that the judicial conduct process does not create what lawyers call a list — a formal legal dispute — between the complainant and the judge. The complainant comes forward very much as a representative of the general public, and the question is whether, in light of the information that the complainant brings forward, the public can still have confidence in the judge — not the complainant but the general public. It is important to be careful to keep the process focused on public confidence.
That seems to flow from the way the Supreme Court has described the purpose judicial conduct proceedings. If a judge has wronged the complainant in some way, and the complainant has the right to some kind of remedy, the remedy does not come through this process. The judge might have committed a crime, breached the Human Rights Code or some other piece of legislation. That will be for another proceeding, process, court or tribunal — some other body — to determine.
The judicial conduct process is very much focused on public confidence. That doesn’t mean that, in the odd case, you won’t have a complainant that might be asked to make submissions or even given standing. That has happened before, and it might happen again in the future.
Senator D. Patterson: What’s the mechanism for giving a complainant standing? Where is the authority for that?
Mr. Xavier: The authority will be in the procedures that the council will elaborate for the different steps of the process. The council and its various decision making bodies or administrative bodies, and all administrative bodies, implicitly have the right to issue — and the capacity — to issue policies that set out procedures to regulate how the different steps will take place. I am speaking of something that will be sort of analogous to rules of court. The council will have to do that for the various steps of the process, and issues of standing will — and intervenors or anything of that nature — will be dealt with through those —
Senator D. Patterson: Implicit in their jurisdiction?
Mr. Xavier: The one time it did happen, the complainant simply retained counsel and applied for standing to the inquiry committee, and the inquiry committee granted the complainant standing, for very limited purpose, to cross-examine certain witnesses.
Senator D. Patterson: Thank you.
The Chair: I am the only one on the second round now. So I have one small question, which relates to the dialogue in the earlier panel with the minister and with you, Mr. Xavier.
You indicated that the only judges who actually ever quit at the last minute are people who are facing the kind of capital employment punishment, so to speak, that is, a recommendation that they be removed from office. But there are cases where a matter has proceeded through a process and a negotiated resolution has taken place without a resolution of the complaint. I’m thinking, for example, of Associate Chief Justice Douglas from the Court of Queen’s Bench of Manitoba, and, as I understand it, a resolution was her retirement at a certain particular time, but no resolution of the complaint. The ability of a judge to do that before a final determination seems to me to be unfair to the complainant who never really gets to understand whether the complaint has been substantiated or not.
With this new process of different sanctions able to be imposed upon judges, it seems to me a stronger argument for the matter to have to be resolved and the judge not to be able to slip away through resignation or retirement. Can you comment a little bit on that? I’m not buying the argument that the five cases — there was a decision, so it’s not really a problem. I’m suggesting that there are some other cases where there is not a decision and that it is a problem.
Mr. Xavier: You are right. It does happen occasionally. Justice Douglas is probably the most high-profile example of that. I believe there was another case about 20 years ago, where the judge — I believe it was Justice Flahiff, a judge accused of criminal wrongdoing, simply resigned. So that does occasionally occur.
Again, the focus of the process is on whether the judge should continue in office, given the allegations made, and if so, have they committed misconduct, and does anything need to be done to address that misconduct? Once the judge is no longer in office, there is no point — the purpose of the process is kind of at an end. As I said earlier in response to Senator Patterson’s question, the process does not create a lis between the complainant and the judge. It’s not a formal legal dispute. It’s not a complainant-versus-judge proceeding. It is very much a judge-versus-public confidence proceeding. So that’s the focus. It can, perhaps, be frustrating for the complainant not to receive some sort of resolution through the judicial conduct process, but that’s — in a way, resolution of their own personal concerns is not the focus of the process. It can certainly be part of it. Public confidence may require that the judge apologize to the complainant because, in the circumstances, that obviously seems to be part of what’s required in order to restore public confidence. But the focus is on restoring public confidence throughout —
The Chair: I would just say that similar criteria apply with respect to lawyers and public confidence in the administration of justice and the role they perform, and we establish rules that don’t allow lawyers to quit in order to avoid the sanction, is my point. But I appreciate your response on that. Thanks very much.
This brings our discussion with departmental officials to an end, and I want to extend thanks to Mr. Xavier, Mr. Hoffmann, Ms. Shen and Ms. Azimi for joining us today in a rich and engaging conversation as usual. I want to thank the senators for their thoughtful questions and dialogue with the witnesses.
There is some possibility, colleagues, that the Senate may sit beyond four o’clock next Wednesday. That’s unclear at this point. But I wanted to share with you, unless you have an objection, my intention to seek a motion in the Senate that would enable us to sit. I would welcome your viewpoint or advice on this.
Mark Palmer, Clerk of the Committee: [Technical difficulties] would be entitled to sit.
The Chair: That would be what our motion would do, and there may be motions coming from other sources.
Senator Batters: Just without knowing really much about this, but part of the reason why we’re going to be sitting is because we’re going to be dealing with important government legislation. I wouldn’t really want to be in committee at the time when we’re dealing with important legislation in the chamber at the same time.
Senator Jaffer: I am inclined to agree with Senator Batters, especially when this bill or different versions of it have been around for a long time. There is no urgency. If there was, I would support you and steering to proceed with the motion, but if this is not urgent, should we miss what’s happening in the Senate?
The Chair: Could I make a suggestion, then — Senator Patterson.
Senator D. Patterson: I believe the bills that are being considered next week are supplementary estimates, FYI.
The Chair: Could I suggest, then, that we hold off on this motion, but perhaps if it seems wise, bring a motion asking for leave for it to be considered immediately, and we will be as constructive as we can along those lines. Is that an acceptable way to manage it for now? Thank you. I’m not asking for a guarantee that it will get a blessing, but just that it will be managed in a respectful way, if we have to come to that.
That brings this session to an end, and seeing no other engagements, I’m going to declare the meeting adjourned. Thank you all.
(The committee adjourned.)