THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
EVIDENCE
OTTAWA, Thursday, March 30, 2023
The Standing Senate Committee on Legal and Constitutional Affairs met with videoconference this day at 11:33 [ET] to consider Bill C-9, An Act to amend the Judges Act.
Senator Brent Cotter (Chair) in the chair.
[Translation]
The Chair: I will now ask the senators to introduce themselves.
[English]
Senator Jaffer: Senator Jaffer from British Columbia.
Senator Batters: Senator Denise Batters, Saskatchewan.
Senator Pate: Kim Pate from the unceded, unsurrendered territory of the Algonquin Anishinaabeg.
Senator D. Patterson: Dennis Patterson, from the ceded territory of Nunavut. Thank you.
[Translation]
Senator Clement: Bernadette Clement from Ontario.
[English]
Senator Klyne: Good morning. Marty Klyne, senator from Saskatchewan, Treaty 4 territory.
[Translation]
Senator Dalphond: Pierre Dalphond, I represent De Lorimier, Quebec.
[English]
Senator Arnot: Good morning. David Arnot from Saskatchewan. I live in Saskatoon, which is in the heart of Treaty 6 territory.
The Chair: I’m Brett Cotter, senator from Saskatchewan and chair of the committee.
We’re pleased to continue consideration of Bill C-9, An Act to amend the Judges Act. To start off this morning, we welcome, from the Indigenous Bar Association, Laura Sharp, Treasurer, who is joining us by video conference — welcome Ms. Sharp — and we also welcome, as an individual, Dr. Caroline Dick, Associate Professor with the Department of Political Science at the University of Western Ontario. Ms. Dick is also joining us by video conference.
I’m going to invite each of you in a moment to begin your presentations of approximately five minutes’ duration, which will be followed by questions and conversation with the senators for approximately one hour.
Laura Sharp, Treasurer, Indigenous Bar Association: Thank you for the opportunity to make submissions to the committee today regarding Bill C-9, An Act to amend the Judges Act.
I’m a Mohawk member of Six Nations, and I’m here representing the Indigenous Bar Association in Canada, or IBA. I would first like to acknowledge the Anishinaabe Territory of Rama First Nation from which I am speaking to you today.
The IBA is a national non-profit association comprised of Indigenous legal professionals and law students. Our mandate is to promote the advancement of legal and social justice for Indigenous peoples in Canada and the reform of laws and policies affecting Indigenous peoples.
As I’m sure you’re all aware, Indigenous peoples in Canada are disproportionately affected by the Canadian legal system. In the past, the IBA has made complaints to the Canadian Judicial Council, or CJC. Bill C-9 amends the process through which the conduct of federally appointed judges can be reviewed by the CJC. Overall, the IBA gives its qualified support and submits that Bill C-9 is a step in the right direction.
Our submissions today focus on several points where we believe the bill can be strengthened or clarified.
The first is in relation to paragraph 3(b) of the Judges Act, which requires that any person appointed a judge of a superior court:
. . . undertakes to participate in continuing education on matters related to sexual assault law and social context, which includes systemic racism and systemic discrimination, including by attending seminars established under paragraph 60(2)(b).
On that point, the IBA relies on the submissions of the Roundtable of Legal Diversity Associations, or RODA, which will follow this afternoon. The substance of their submissions is that the subjects of continuing education are under-inclusive and this clause should be amended to reflect greater inclusivity.
The IBA notes that the Truth and Reconciliation Commission’s Calls to Action 27 and 28 set out required learning for lawyers and law students, and submit that judges should undergo similar training.
Third, section 160 relates to the council’s annual reports, which are also a step in the right direction. However, as noted by Senator Pate yesterday evening, it falls short of providing the data regarding the type of complaint. As such, the public will not be made aware of the number of complaints related to racism or the demographics of those making complaints. The CJC’s data — collected and made public in other processes, in particular regarding the demographic information of federal judicial applicants and appointments, including gender and Indigeneity — have been very useful in measuring Canada’s progress in diversifying the bench. Additional data regarding judicial complaints would be useful for all Canadians.
Third, in the past, there was a situation where the IBA had complained about a specific judicial conduct, and an inquiry into the conduct was announced by the CJC. However, the judge in question announced his retirement and retired before the matter could be considered. The CJC has no authority to inquire into a retired judge, and as such, no resolution or determination occurred regarding the judge’s actions. Allowing judges to retire to avoid reprimand or removal is an oversight of the Judges Act and risks the public’s loss of confidence in the judicial system.
Indeed, the affected First Nation continues to be negatively affected by the lack of resolution.
Finally, section 102, which provides for reviewing and responding to allegations of judicial conduct not serious enough to warrant the removal from office, is a welcome addition. This provision helpfully includes public apologies and continuing legal education. Paragraph (f) also provides that the council can take any action that the panel considers to be equivalent to any of the actions referred to in paragraphs (a) through (e). In the IBA’s opinion, these can and should include consultations and potential interactions with Indigenous communities affected by a judge’s harmful actions, either by way of a sharing circle or some other Indigenous dispute resolution method. Indigenous dispute resolution methods are diverse and nation or community dependent, but for true reconciliation to take place, the council should consider various methods of reconciling wrongs in order to ensure Indigenous communities have or have restored confidence in the judicial system and right relations are maintained.
Mr. Chair, nia:wen for the opportunity to give submissions on behalf of the IBA. I would be pleased to answer any questions from the committee arising from my submissions.
The Chair: Thank you, Ms. Sharp.
Dr. Caroline Dick, Associate Professor, Department of Political Science, The University of Western Ontario, As an individual: Thank you, Mr. Chair, for inviting me to comment today on Bill C-9. I’m trained in both law and political science, and my research focuses on the intersection of these two fields.
As the committee members are well aware, the balance between judicial independence and judicial accountability is often difficult to find. Both are critical to public confidence in the administration of justice. In my view, amendments to the bill would bring about a better balance between these two goals by strengthening accountability in a way that does not jeopardize independence.
There are two lines of accountability that the bill engages. The first is accountability for judicial misconduct. The inclusion of lay persons on review panels and full hearing panels is very important in terms of transparency and enhancing public confidence in the process. However, I would amend the bill to include one lay person on reduced hearing panels, as well as appeal panels. I say this for one overarching reason, which is the fact that the standard for removal turns on whether a judge’s continuation in office would undermine public confidence in the administration of justice. Given the centrality of the public’s perspective to the standard for removal, I believe a lay person should appear on all panels.
This brings me to the issue of who appoints the roster of laypeople that serve on complaint panels. Here I would recommend a change to the appointment process for lay persons in section 82. At present, the council appoints lay persons and sets the criteria for appointment, but just as the naming of individuals to the judges’ roster is done on the recommendation of the Canadian Superior Courts Judges Association, I would favour lay persons being recommended by Parliament or by a nominating committee appointed to Parliament. At present, Parliament’s only involvement in the composition of panels is found in section 117, where the minister appoints one lawyer to the full hearing panel. However, that appointment defaults to the council where the minister fails to make the appointment within 30 days. I think that if greater public confidence is to be instilled in the discipline and removal process, lay appointments should come from outside the council.
The second accountability issue raised by the bill is the accountability of the Canadian Judicial Council as the administrative body that regulates judicial misconduct. I won’t say too much here because I believe there’s a witness on the next panel who is better positioned than I to make this argument in detail. I will say that from an accountability perspective, the prospect of removing access to both the Federal Court and the Federal Court of Appeal is concerning because it leaves the council as the only real check on itself. The bill does provide for an appeal to the Supreme Court of Canada, but the success rate when applying for leave to appeal is low. So under the bill, the decision of the appeal panel will almost always be final, with no meaningful right to external review.
I do appreciate the desire to avoid costly and protracted legal proceedings that delay the removal process, but I think that the bill goes too far in trying to address the issue. There is little prospect for external judicial oversight in the bill, and insulating the council from the Federal Court, which is the most obvious source of review, effectively leaves the council regulating itself, especially in a context where Parliament has never voted on the removal of a judge from office. The few judges that have been recommended for removal by council have resigned before those proceedings could occur.
Thank you. I’m happy to answer any questions that you have.
The Chair: Thank you, Dr. Dick, and thanks to both of you for your succinct presentations. We’ll invite senators to pose questions to you, beginning with the sponsor of the bill.
Senator Dalphond: Thank you to our witnesses. I know you have prepared for this appearance, and it’s quite appreciated. We need input from people outside of Parliament.
My first question will be for Ms. Sharp. You referred to an issue that was covered yesterday by other witnesses about data collection and access to more data. I think you raise an interesting and important issue.
In terms of the annual report, could you elaborate on what you would like to see in the report? You know about the complaint process. There are some numbers provided as well as an example of the type of complaints that go before a panel. Could you be more precise on what type of data you’re looking for so we can make observations on that?
Ms. Sharp: Yes. I referenced the data collected and produced by the CJC in other instances. In particular, when they give their final report on the appointment of Supreme Court justices, they produce the number of people who applied, the number of men, the number of women, whether they’re Indigenous, et cetera. We would like to see something similar. These charts are really helpful for us to advocate for changes or to know when things are not going well.
If there are 600 complaints and most of those are denied, but they could be segregated into denials and who made the complaint, whether or not they identify as Indigenous, et cetera, or whether this could be internal or external and made public as to whether — I believe Senator Pate brought this up last night — a certain judge had received multiple complaints that allege racism, there may be a trend there.
In putting all of this data into charts, there doesn’t necessarily have to be a right way to organize this, so long as it is intelligible in order for organizations and the government to determine if there is a problem with a certain judge or just systemic issues. Or maybe it’s that a certain population is making complaints because they don’t understand what the subject of a judicial complaint really entails, in which case more public legal education may be needed.
All of those things could be shown in this data, which we currently don’t have.
Senator Dalphond: Thank you. Professor Dick, you are proposing we include lay persons on review panels and appeal panels, but do you think this could complicate the matter?
I know you’re also advocating for judicial review or right of appeal, either to the Federal Court or to the Federal Court of Appeal. If we have a lay person on what they call the appeal panel, that will transform the nature of the panel. Would it then be considered more of an administrative tribunal than a court? It’s more of a legal issue. It’s about the nature of the body and if you have a lay person at the appeal level. I think the consideration of the proposal is to avoid the normal Federal Court of Appeal by replacing it with a panel of judges that will act within more limited time frames.
Ms. Dick: My concern is that having the appeal within the council doesn’t take it outside the council, and there’s no external review. That’s why I do favour having an appeal perhaps to the Federal Court of Appeal. That would perhaps make what that appeal committee or panel does slightly less judicial. However, I think the way that I see the council and the process still keeps the council as an administrative body rather than a court, including that appeal panel. I think it would be an administrative appeal panel.
I think at the end of the day, because the standard for removing a judge is public confidence, it just seems curious not to include public input into the decision making at all levels.
Senator Dalphond: Thank you.
Senator Batters: Thank you to both of you for being here today.
First of all, Ms. Sharp, to your knowledge, was the Minister of Justice’s consultation with Indigenous groups and associations adequate? What was your organization’s involvement with this consultation process?
Ms. Sharp: Unfortunately, I cannot comment very much on that. The Indigenous Bar Association did not give any initial feedback, and I’m not aware whether or not we were contacted. We may have been, but as a small organization that exists completely pro bono, we don’t always have the ability to respond to every request. Although, when we were asked to speak here today, we obviously knew that, based on our experiences in the past, we needed to be here.
Senator Batters: I really appreciate it because your organization has often testified before our committee and provided very helpful comment.
Would you mind checking and letting our committee clerk know whether you did receive any request from the justice minister’s office, or more likely the ministry, about consultation for this bill? It may have come quite some time ago because they started consulting about this bill, I believe, in 2016.
Ms. Sharp, overall what level of confidence would you say Indigenous peoples have in the justice system, and specifically with the judiciary? What, if anything, has shaken the confidence of Indigenous peoples in the system? Do you foresee this proposed process that is revamped in Bill C-9 having any impact on that?
Ms. Sharp: It won’t come as a surprise there’s a lack of confidence in the judicial system by Indigenous peoples generally given the number of Indigenous people who are incarcerated and the number of children who end up in the child welfare system.
That being said, there are definitely instances lately where we’ve seen some major shifts in the way that law is done, particularly with recognition of the multi-juridical space that Canada occupies by acknowledging Indigenous laws, for example, in the Restoule litigation that is ongoing.
There are definitely points where there is good, but we still have a lot of work to do. With regard to the most recent complaint of the Indigenous Bar Association against a judge, the situation was that this judge commented on the validity of a land claim of a First Nation in which he was in direct conflict because he had a cottage very close to that land. The complaint was made. It was initially not considered, and then the IBA asked for a reconsideration, and they indicated that the CJC would look into it and that there would be a formal process, but this judge resigned before there was any indication.
So this First Nation is still in this land claim process, and negotiations have slowed because of the comments of this judge. The IBA did not want the judge to be removed. We wanted it to be made right with the community, which is a public apology acknowledging that there may be some validity to this land claim, and he has not seen the evidence, and he was not the judge, and that this could have been before him.
Circumstances like this, where there’s a conflict of interest, obviously shake the confidence of not just an individual but a whole nation and others who are concerned about these things, which is why we’re here today.
Senator Batters: Ms. Sharp, you commented on this aspect briefly in your opening remarks, so I wanted to ask you about the penalties that can be imposed under Bill C-9 in cases of judicial misconduct that don’t meet the criteria for removal of a judge, but there’s a reformed process under Bill C-9, and those other penalties could include expressions of concern, warnings, reprimands, forced apologies, training, education or counselling. But Bill C-9 does not propose the option to either suspend the judge temporarily or dock their pay.
I know you commented on some other sanctions that your organization thinks should be imposed, perhaps, or have the ability to impose. Would you agree that a suspension or monetary consequence could be an appropriate remedy for judges’ discipline in certain circumstances?
Ms. Sharp: I know many provinces have the ability to suspend a judge, and the IBA believes that suspension can be an appropriate remedy, in particular while something is going through the CJC process. Our friends at RODA will speak to this more in depth this afternoon, but a certain judge did not have anyone who was Muslim come before him for a time, and so it was meant to be ameliorative. There was a complaint about this judge, but there were questions of whether this was systemic discrimination or what was going on, and because these things are private — it’s not made public what’s going on in this process of the CJC — there was a perception that this judge should have been suspended at this time. Whether suspension is appropriate in very many circumstances is, I believe, up to the CJC. There may be certain circumstances where actions are so harmful that while there is a process ongoing, they should be suspended, although I would say that would obviously be a rare situation. We do not have a position regarding monetary fees.
Senator Pate: Thank you very much to the witnesses, both for appearing here today and for all of the work you do on an ongoing basis.
My first question is for you, Ms. Sharp, and then I’m happy for Dr. Dick to join in. The UN Special Rapporteur was here earlier this month and made a number of findings and comments that were quite critical of the manner in which Indigenous people experience many systems, including the criminal legal system. For many Indigenous people, particularly Indigenous women, the relationship between them and the legal system has been described as complex, frustrating and lacking in ability to trust.
Many people have been vocal about their experiences of systemic discrimination and colonialism. And, most recently, in light of the decision in Sharma, many Indigenous women have expressed huge concern about the setbacks in terms of the understanding by the judiciary of the realities faced by those who are most marginalized.
I’m curious as to how you see this stacking up. You’ve provided a lot of evidence already about this, but if you care to, please add to that in terms of how you see the role of your organizations in assisting in ensuring that judges know what is appropriate behaviour.
Because, as you’ve indicated, as have I in some of my questions of previous witnesses, the range of behaviour is such that we’re aware of many complaints going in that don’t go anywhere but certainly allege racism, misogyny and other forms of discrimination. But oftentimes we’re dealing with a judiciary, a bench that itself doesn’t understand those issues very well.
I’d be interested in how else you see we could move forward on this, and any other recommendations besides those you’ve already made that have been extremely valuable.
Ms. Sharp: Several weeks ago, there was a conference — I’m not sure of the name of it — but I think there were about five judges and five academics that practise Indigenous law, and they were giving training on how to apply Indigenous law in courtrooms.
I’m not sure if all of these were civil court judges, or included the criminal law system, but in some of that training, it was almost all Indigenous academics, and they were talking about the ways that our own laws and ways of knowing can be brought into these systems to both come to a better result that is not punitive, but also create relations between First Nations, judges and those in the legal system.
The way that IBA sees their role is that we are advancing this view of a multi-juridical system that includes more Indigenous ways of knowing, and, obviously, we’re advocating for increased training for judges. Almost all law schools have implemented Truth and Reconciliation Commission Call to Action 28, which requires them to take a course on Indigenous peoples and the law, which includes Indigenous law.
I taught this course at Toronto Metropolitan University last year, and the way that students change over the course of the year after they have been given this information is night and day. And lawyers having to do CPD, or continuing professional development, related to Indigenous peoples, though not always required by law societies, is becoming more common and is also super important. So when we’re saying we want judges to do this type of training, we want them to, but we want it to be from Indigenous people. We want them to work with the IBA and with other organizations to provide this training and do it in a way that respects all parties, compensates them accordingly and creates right relations. Thank you.
The Chair: Dr. Dick, I know you got cut off briefly from our dialogue. If you have some contributions to make in response to Senator Pate’s question, I welcome them.
Ms. Dick: Thank you. I am not an Indigenous person, so I offer all of my comments with caution. However, we are at a point in this country where Indigenous women constitute over 50% of the federal female inmate population when they constitute 5% to 6% of the population overall.
I teach a course on racialized injustice at Western University. One of the weeks that I have on my course is a week where we talk about Angela Cardinal, an Indigenous woman who was the victim of a sexual assault. She was a willing complainant witness who ended up literally being put in shackles and imprisoned for five days to testify. It’s not the first time that has happened when it comes to Indigenous women.
The problems are mammoth. I think they affect every single aspect of the legal system. Certainly, there is no shortage of data on the lack of confidence that Indigenous people have in that system. It will require a multi-faceted approach but I agree that judicial education is critically important. I was sorry to see the way that the bill on judicial education was revised over time. We just have far too many judges engaging in behaviour that cannot be justified or defended. There needs to be an intervention and I firmly agree that it needs to come from individuals who have experienced those subject positions.
The Chair: Thank you, Dr. Dick.
Senator Arnot: I have one question for Laura Sharp and one question for Professor Carolyn Dick.
Professor Sharp, you want to amplify paragraph 3(b). You don’t want it narrowed just to sexual assault issues. My own view is that the judiciary should be studying social context issues with much more richness. I don’t understand why the judiciary would be fearful in any way about studying social context issues — for instance, discrimination on the basis of racism, discrimination on the basis of gender, discrimination on the basis of disability, discrimination on the basis of mental health and addictions, understanding the numbered treaties, treaty implementation in a modern context, understanding the treaty relationship and understanding the responsibility that all Canadians have, and certainly the judiciary has, in reconciliation. You mentioned the TRC’s Call to Action 28. There’s certainly a huge call for the judiciary to understand Indigenous culture and Indigenous spirituality in a modern context.
There is a common denominator, in my opinion, as to why judges get into trouble sometimes and it usually comes down to when judges appear not to understand the social context within which their decision making is occurring. The only way to amplify that is to make sure the judiciary has a full grounding in contemporary social context issues.
As an example, if a judge has a background in corporate law and banking law, you can’t necessarily assume that they have a current understanding of the social context within which some of their decision making is made. It may well be that the last time they were in university was 30 years before appointment.
I make that point because sometimes I hear that judicial independence is a barrier to cooperating with civil society. I think it behooves the judiciary to work with civil society, to collaborate, to cooperate and to ensure a partnership. I can speak to that from my own experience. If that happens, I find there is an enriching and an enlightening process which can help the judiciary be more effective in their decision making. Thankfully, there is a good model that exists which is demonstrably successful. There are two senators here today who are very familiar with that model: Senator Jaffer and Senator Cotter. That model was created by Douglas Campbell when he was a provincial court judge in B.C. and then became a Federal Court judge. It involved working with civil society and bringing those experts to the judiciary for their judicial education.
The Chair: Senator Arnot, we’re three minutes into your question and I would like to hear the witnesses’ reflections on your observations.
Senator Arnot: I’m not finished. I will give them time to write in their answers because this is such a great question. I am here representing Senator Dupuis. My view is that I am here to upset the apple cart, which I am good at.
Senator Jaffer: Can Senator Arnot have my time as well?
Senator Arnot: Thank you. May I have your time, too?
The Chair: We’ll see.
Senator Arnot: I’m saying all this — and I know it’s a lot — because I think it hits at the nub of what you’re talking about and should give both witnesses an opportunity to comment perhaps in writing because I know I am saying it in a long way. It’s an important question, in my opinion.
The judiciary really has nothing to fear from this kind of collaboration. One thing I’ve heard in the past is that the judiciary may be importuned and may be swayed. I have great confidence in the intelligence of the judiciary to be able to discern that and to see things and examine with their own critical thinking. My point is they need to be exposed to that.
The second question that I have is for Professor Dick. You’re saying that lay people shouldn’t be appointed by the judicial council. I think that’s a valid concern. What mechanism would you promote for that? What kind of criteria would you put forward as that is exercised?
I notice that lay people begin to become outnumbered and not even exist on some review panels as it gets more serious. Do you have any comments on that?
I invite both witnesses to comment on those fundamental issues that I think are important. I would like to see the committee review any materials you have that answer some of those questions because it could be informative on the recommendations that we make on Bill C-9.
The Chair: The good news, Ms. Sharp and Dr. Dick, is that you have between you five minutes to respond to Senator Arnot’s questions, thanks to Senator Jaffer.
Ms. Sharp: I think your question is whether there is a way that we can expose judges better to all of these issues, and whether there is a hesitancy to take this type of training. Am I correct, senator?
Senator Arnot: I want to eventually speak about the model of the Western Judicial Education Centre which [Technical difficulties] in my opinion. You can look that up. Take your time on that.
Ms. Sharp: We will comment on the model.
We do agree that increased exposure is absolutely needed. All kinds of training is needed. However, there is this hesitancy for judges in some circles. We saw this when Osgoode was implementing Call to Action 28. They were saying there needed to be a mandatory course and that it had to be voted upon by the Senate, and so on. There was some real opposition, both by students and professors, that said this affects academic independence, and so on. There are staunch proponents to this and a lot of it comes down to we don’t know what we don’t know and judges don’t know what they don’t know sometimes in these circumstances. When they are brought into the fold and learn these things, people are grateful and see things in a new light. Thank you.
The Chair: Dr. Dick, on both points if you could?
Ms. Sharp: I believe the second point was in relation to lay people; is that correct, senator?
The Chair: It was, but I think that was directed to Dr. Dick specifically.
Ms. Sharp: Perfect.
Ms. Dick: I am of the opinion that Canada right now has veered too far to the side of judicial independence, and it’s this constant rejoinder that we get to exclude other voices, to insulate judges in a way I’m not sure is always appropriate.
In 1993, the Canadian Bar Association had a task force. It was led by Madam Justice Bertha Wilson, and they looked at this question of judicial independence and this resistance to social context training. The question they ultimately posed was: What is it that you need the independence to do that would require you not to hear from these various groups? I think that’s a question worth asking.
With respect to the idea of lay people, I found out I was going to be here on Monday so I haven’t had a lot of time to think it through, but I was thinking to create a nominating committee. I don’t know exactly how the appointments are going to go. I know that people will sit for four years, so whether that nominating committee would meet once every four years or whether it is rolling, I think that would be a good way.
I would anticipate that committee would be appointed by Parliament.
In terms of the criteria, it would be very important for the council to participate in the criteria because they are the ones who know exactly what it is they’re going to need these individuals to be able to do.
But I think that in the same way that we’re talking about social context training and bringing other voices in, it is important to expand the participation that occurs in this process. I think this would be a very simple and not particularly controversial way of giving Parliament a little bit of a role.
Of course the council would still be putting the panels together from complaint to complaint.
The Chair: Thank you, Dr. Dick.
Senator Klyne: My question is for Ms. Sharp from the Indigenous Bar Association. The bill establishes a new process for reviewing allegations of misconduct that are not serious enough to warrant a judge’s renewal.
With respect to the overrepresentation of Indigenous people in the correctional system, it’s interesting to bring in Calls to Action 27 and 28. In many ways that should be a preventative thing, that if they had more awareness and the actions of Calls to Action 27 and 28 are taken up, it may mitigate and potentially eliminate the need for any type of these reviews.
But failing that, when it comes to reviewing allegations of misconduct that are not serious enough, how do you see Calls to Action 27 and 28 coming into play where there is no removal? You referenced things around — I don’t think you said sentencing circles, but you said something about circles and other resolution opportunities that could come through some Indigenous involvement. Could you expand on that?
Ms. Sharp: In my example earlier of the First Nation who had an issue with a judge, we said that an apology would really help. In order to come back into right relations with people, often things like sharing circles may be needed in order to give the First Nation confidence in the system that they are committed to making it right, committed to listening to what the wrong was and that they are committed to changing their actions in the future. Regarding these different types of additional cultural competency training in Calls to Action 27 and 28, even if we train judges as a preventative measure, you cannot train someone on every single thing that may occur or may be perceived as racist, or be actually racist, in an hour-long training session or even a day or a week.
Many of these things are new to them. This is a continuing process, so if there is an issue, we would hope that the judiciary and the CJC would recognize that training doesn’t just stop at one or two CPD sessions and they continue to use the same CPD sessions over and over again. These can be changed and used in an individual case-by-case manner.
Senator Klyne: I want to ask Dr. Dick a question, but first I want to ask if you have a sense of how the bill can be improved to reflect what you are trying to achieve here.
Ms. Sharp: Sharing circles could potentially fall under paragraph (f) if the council takes it upon themselves that this is an action they consider to be equivalent to any other action referred to in paragraphs (a) to (e). So no revision may be necessary. However, if the Senate wants to be explicit about this provision, then they could add an additional subsection that indicates Indigenous methodologies of dispute resolution may also be pursued.
Senator Klyne: Thank you.
The Chair: I have three or four questions. Let me begin with a couple of questions for you, Ms. Sharp. You mentioned the point of judges retiring to kind of escape the consideration and maybe guillotine of a finding of misconduct. Is there a mechanism by which that can be achieved here, given your point as well that when a judge retires, he or she becomes kind of outside the jurisdiction of the Canadian Judicial Council? Do you have an idea on that?
Ms. Sharp: That would require an amendment to the act that adds an additional provision that indicates that the CJC has the jurisdiction to continue a complaint after a judge’s retirement.
The Chair: I served on the Federation of Law Societies advisory committee on how to implement the TRC recommendation that lawyers obtain training in Indigenous law and the like. I observed, as I’m sure you have, that the Truth and Reconciliation Commission, led by a very distinguished judge, senator and colleague of ours here, Murray Sinclair, did not make a recommendation regarding education requirements or expectations for judges.
Embedded in that, it felt a little bit like Justice Sinclair, in his capacity as a judge, was attentive to this issue of judicial independence. To be honest — and I’m aligned with Senator Arnot on this — I am disappointed in that outcome. Can you reflect a little on that, whether a very distinguished person has already said that crosses the line a little bit in terms of us telling judges what they should learn?
Ms. Sharp: I certainly don’t want to put any words in Justice Sinclair’s mouth. I very much respect him and the work he did.
I will say that our opinions differ there, and I would like to see judges be required to take CPD training on these issues, but that’s all I can say. Thank you.
The Chair: Dr. Dick, could I ask a question of you briefly? It overlaps with some of the observations of Ms. Sharp.
If we didn’t amend the act, is one of the mechanisms by which a whole collection of these questions could get addressed — richer lay representation on panels, or at least the panels designed with outside voices — the issue of what ought to be the shape of reporting by the Canadian Judicial Council?
If I were the chief justice listening to these accounts and testimony, and if the legislation isn’t changed, I would be strongly tempted to want an advisory body to offer me advice on all of those questions so we can get the reporting out as responsively and as accountably as possible, and get the kinds of people who would serve on those panels as richly and community informed as possible. Is that an option here other than making changes to the act, Dr. Dick?
Ms. Dick: I suppose it’s an option but I think that if we’re here to study Bill C-9, it is something we want to entrench right into the bill. The council has previously, in 2019 for example, tried to make the argument that they do not qualify as a federal board commission or other tribunal, trying to resist this idea that they are a regulating agency. I feel they are a regulating agency and for that reason I think it’s critically important that there be access at least to the Federal Court of Appeal.
Similarly, on having an advisory council, I’m not against it — let’s do both — but I would also want to see those lay people having input on every single one of those panels both because of the standard used to determine misconduct, because of the legitimacy it confers and, as already mentioned here today, the legal profession of judging is insular. These are people from a certain level of income, with certain training and a certain way of thinking, and I think alternative perspectives would be helpful.
The Chair: Thank you very much. I did borrow a bit of your time, Senator Patterson. Thank you very much for that. We are able to move to a brief second round.
Senator Batters: I want to give Professor Dick a little more time to comment on this sort of thing. I very much agree with what she is talking about here and that the process, even in its revamped way, would still potentially equate to the council regulating the council without external oversight. I want to give you more time to explain your important perspective on that.
Ms. Dick: Well, again, there are probably people coming in the next panel who will be even better than me at commenting on that, but I studied the judicial council before and I wrote a paper on Lori Douglas. What struck me with that complaint was the fact that not just the judge but independent counsel in that case actually felt the procedures that are clearly stated by the CJC were not being followed. It was critically important that they be able to go to the Federal Court and bring applications for judicial review.
I’m well aware that those proceedings can be incredibly long and delayed and people can bring them in a very frivolous manner, but there have been instances where access to the Federal Court, in my view, was absolutely critical where the council did make mistakes. The council is not infallible — no one is — so removing that seems incredibly problematic to me.
Then I start to think about, well, which judges might be the ones who are most in need of having access to that Federal Court for legitimate reasons. In that case, it was a female judge who was pursued doggedly to be removed from the bench because other people had posted salacious pictures of her on the internet without her knowledge or consent. That’s now a crime in Canada. I worry about the fact that people will need access to the Federal Court where perhaps anti-Indigenous sentiments and misogynistic sentiments, whatever they might be, make their way into these panels. I think at that point you need to be able to go outside the council to get review.
I think we all know as well that all institutions have their own interests in protecting their reputation. Again, I think that’s human nature, and nothing specific to the council. I think the way the bill is set up right now is far too insular.
Senator Batters: If you would please provide our committee clerk with a copy of that paper that you referenced about the Canadian Judicial Council, it would be helpful. Thank you.
Senator Klyne: You referenced the inclusion of lay persons, and you had a view, I would say, about appointing from outside the council. There are a couple of things I would like to understand and one is, with respect to your idea or description of what these lay persons could be, when I look at paragraphs 82(3)(a) and (b), they say what the person could not be and then paragraph (c) suggests it should be as they meet the selection criteria established by the council. There is still no clarity for me there.
I still struggle with section 84, which states:
As far as possible, the Council shall name persons who reflect the diversity of the Canadian population to the roster of judges and to the roster of lay persons.
I would like you to give me a description of whom the lay persons are, and the purpose and objective of them and how they should be appointed.
Ms. Dick: In terms of who lay persons are, that will be determined by Bill C-9. I would leave it to the council to decide what kinds of attributes they think these individuals need to have.
These are very small panels now, relative to going to what used to be a full panel, so the diversity idea is very nice but I think it will be difficult. At the same time — I don’t know the section off the top of my head — but there is a suggestion for the roster of judges and the roster of lay persons that we should take into account functional bilingualism, and then I start thinking about the same kinds of critiques we have seen when it comes to appointing judges to the Supreme Court of Canada. Will this work against immigrant Canadians? Will it work against Indigenous people? There is probably a class component in terms of who has learned both English and French.
So I’m not in a position today to say this is what I think their criteria should be, but I do think that managing diversity and managing this desire for official languages on panels of three people, for example, is going to be challenging.
Senator Klyne: Do you have an opinion about what you feel is the overarching objective of doing that with the lay person?
Ms. Dick: The overarching objective of what?
Senator Klyne: Appointing lay persons and suggesting what they should be looking for.
Ms. Dick: I think that it has to come back to that standard for the removal of a judge. What does the public think? What undermines public confidence? And that’s not even that easy to gauge. If I were to ask my students, who are in their 20s and 30s, what they think would undermine public confidence as opposed to me, it might differ. That’s a challenge as well. All we can do at this point is to have some of that lay input instead of leaving it to judges and lawyers to decide what they think the public interest and public confidence look like.
Senator Arnot: I certainly invite the witnesses to provide some further written material in respect to the questions that are being asked, and I say to my colleagues on this committee that I think this is a glorious opportunity to address this issue of judicial independence. If judges had the social context issues well in hand, we wouldn’t probably have a need for removal of judges. So there is a really good preventative issue here and you have an opportunity, on a silver platter, to address this issue. I’m wondering if the steering committee would consider — and I recommend this — asking former justice Douglas Campbell to come before the committee and give his advice on these very issues and talk about the model, which was a very successful model. I think it’s really important because I would really like to see this committee recommend strongly the need for social context education with the judiciary inside Bill C-9. There is an opportunity to do it. I hope you will be able to do that. I would support it.
The Chair: I don’t think there are any answers we will ask of the witnesses there.
Senator Arnot: No.
The Chair: It’s connected to your earlier dialogue with them. This brings us to the conclusion of this panel, so let me extend my thanks initially to Ms. Sharp and also to Dr. Dick for their presentations and the rich dialogue that you have had with us and the direct and constructive answers to our questions. It’s much appreciated. We are having a very engaged dialogue on this topic within our committee and you have made meaningful contributions to it, and I want to thank you both.
Senators, we will continue with the second panel for consideration of Bill C-9, An Act to amend the Judges Act.
On our panel today, I want to welcome Sheree Conlon, K.C., Executive Member of The Advocates’ Society. She is joining us via video conference. Welcome, Ms. Conlon. Also, we have Juliet Chang Knapton, Chair of the Roundtable of Legal Diversity Associations. Your organization has already been referred to, as you have heard, earlier on in the first panel, and we look forward to your remarks.
We’ll invite you to speak to you for approximately five minutes each. That will be followed by questions and discussions with and among the senators.
Sheree Conlon, K.C., Executive Member, The Advocates’ Society: I would like to begin by acknowledging I’m speaking to you on Mi’kma’ki, the ancestral and unceded territory of the Mi’kmaq people. This territory is covered by the Peace and Friendship Treaties entered into in 1726.
Mr. Chair, thank you for the opportunity to make submissions to the standing Senate committee today regarding Bill C-9, An Act to amend the Judges Act.
I’m a partner at the law firm of Nijhawan McMillan & Conlon Barristers, and I am here representing The Advocates’ Society.
The Advocates’ Society is a national not-for-profit association of litigation counsel with approximately 5,500 members located across Canada. Part of The Advocates’ Society mission is to promote a fair and accessible justice system in Canada.
My submissions to you today will focus on one central point: The Advocates’ Society is concerned that Bill C-9 does not allow for an adequate amount of court oversight of the CJC’s decisions in its judicial conduct process. I will present to you a simple remedy to this concern that we believe will still achieve the government’s laudable goals for reform.
The Advocates’ Society’s written submission to the committee, dated March 29, 2023, expands on the points I will make in my preparation today.
Overall, The Advocates’ Society supports amending the Judges Act to reform the CJC’s process for reviewing and addressing complaints made against federally appointed judges. We have seen that the current process is susceptible to delay and high costs. These inefficiencies diminish public confidence in the accountability of members of the federal judiciary for their conduct, and we agree they need to be corrected.
The Advocates’ Society also agrees that one principal source of the delay and costs in the current process is that parties can apply to the Federal Court for judicial review at multiple points in the process, and then parties can avail themselves of several levels of appeal. We submit that Bill C-9, however, overcorrects this problem by replacing the court review process with review mechanisms that are almost entirely internal to the Canadian Judicial Council. Under Bill C-9, parties can only seek leave to appeal the decisions of the CJC’s appeal panel to the Supreme Court of Canada.
This is a concern because there is no right of appeal. Rather, an appeal is only available if the Supreme Court grants leave. The Supreme Court is not an error-correction court, and leave is only granted in cases of public importance. Historically, they only grant leave in about 7% to 8% of cases per year, so there is no guarantee that the Supreme Court will grant leave to appeal, even in a case where the CJC’s decision is wrong — and, in our respectful submission, all decision makers can get it wrong sometimes. That is the purpose of appeal courts.
The Advocates’ Society is concerned that Bill C-9 creates a legislative scheme in which the Canadian Judicial Council is the investigator, the decision maker and the appellate authority with respect to allegations of judicial misconduct. In the end, external judicial oversight of the CJC’s decisions and actions is all but eliminated.
The proposed process is concerning because court oversight of administrative actions is fundamental to ensure their legality and fairness. The lack of court oversight of the CJC’s process undermines the security of tenure of the judiciary, which is a critical component of judicial independence.
The Advocates’ Society suggests there is a simple remedy to our concerns: We propose instead that the parties be provided with a right to appeal the CJC’s appeal panel’s decision to the Federal Court of Appeal instead of the Supreme Court of Canada.
We must stress that we believe our proposed amendment will not reintroduce delays and costs we see in the current process, which the government is rightly trying to fix. The proposal ensures that only the CJC’s final decision will be subject to appeal directly to the Federal Court of Appeal. This will eliminate one layer of judicial review — the Federal Court — and it will eliminate judicial review of interlocutory decisions, which historically has been the primary cause of the delay and the expense, while also preserving a right of judicial review on the final decision of the CJC’s internal process.
We believe this small change that we propose to Bill C-9 strikes the right balance between efficiency, public confidence in judicial accountability and fairness to all parties, all while maintaining judicial independence.
Mr. Chair, I would be pleased to answer any questions the standing committee might have arising from these submissions. Thank you.
The Chair: Thank you, Ms. Conlon.
Juliet Chang Knapton, Chair, Roundtable of Legal Diversity Associations: I’m honoured to be appearing before you today. Luckily, I reside in the unceded and traditional territories of the Algonquin Anishinaabeg, so I was able to be here with you today.
The Roundtable of Legal Diversity Associations, or RODA — which doesn’t have a website, so probably nobody knows what it is if you don’t have a website — is an umbrella organization that brings together a coalition of 22 equity-seeking Canadian legal associations, although I note we are in the process of welcoming three new organizations into our membership fold.
It was formed in 2011 with the goal of fostering dialogue and promoting initiatives relating to the advancement of inclusion, diversity, equity and accessibility in the legal profession, the judiciary and within the broader legal context.
As part of our mandate, we monitor and provide input on policy developments within the profession and legal systems. RODA is an entirely volunteer-run organization.
As you can see from the written submissions that I hope you received earlier today, our members include some of the largest and most established of the equity-seeking legal groups, many of whom have appeared in front of Senate and parliamentary committees before, as well as many smaller groups, some very well established and some having just been born.
Although RODA has been very active in the Ontario provincial and legal regulatory sphere for many years, this is RODA’s first time appearing in front of a federal parliamentary committee, and I thank you for inviting us to be here.
My comments today, both written and oral, are a collection of diverse voices. While we work on a consensus-based model, RODA does not speak with one voice. We seek to find common ground on matters and find consensus; however, what we really do is try to amplify diverse voices that are typically not heard and don’t have the space in traditional realms.
My comments here today are really around the idea of putting forward the diversity of experience, comments, analysis and considerations that we can bring to the table to help inform and enrich your dialogue in your analysis of things.
In general, RODA supports Bill C-9, An Act to amend the Judges Act, not because it addresses all of our concerns, or even maybe some of our primary concerns, but because the needle needs to move forward. And whether you decide to make the amendments that we or anybody else talks about, at this point, it does need to move.
Our main comments today are to emphasize the importance of centralizing equity, diversity, inclusion and accessibility into all aspects of the judicial system. And, in particular, in a small way today, for Bill C-9, our comments focus on transparency and judicial education.
In terms of transparency, RODA first highlights the importance of publicizing how complaints are dealt with, meaning that public written decisions need to be published for all decisions at all stages, and that useful and clear statistical information about the topic of the complaint, at what stage it was finally addressed and what the final outcome was should all be made public. This includes the decision to dismiss a complaint.
In terms of judicial education, RODA highlights the importance of explicitly noting the discrimination being addressed, having mandatory education that is alive to the social context — and I appreciate the comments from the senator before I joined you here today — having that education as part of a regular and frequent cycle and having more tools to create the best chances for remediation to be effective.
We need a judiciary that has cultural competency, and that means we need to be aware of your own cultural beliefs and values, as well as others’, how they may be different from others and being able to learn about and honour the different cultures of those and those you work with.
Again, RODA emphasizes that awareness of a cultural viewpoint, an attitude toward cultural differences, knowledge of different cultural practices and world views and cross-cultural skills and tools are all part of that mix.
If you’re going to, in the judiciary, and if we, as Canadians, want to centralize equity, diversity, inclusion and accessibility in all aspects of our judicial system, it is going to be the way — as RODA finds, anyway — that we’re going to build a more inclusive, more fair and more just Canada.
I’m happy to answer any questions you may have on that wide-ranging area of topics. I have written submissions and would be happy to answer your questions. Thank you. Meegwetch.
The Chair: Thank you, Ms. Chang Knapton. I am going to invite Senator Dalphond, the sponsor of the bill, to begin.
Senator Dalphond: Welcome to the committee and welcome to our witnesses. My first questions will be for The Advocates’ Society.
Ms. Conlon, you are proposing that there be a right of appeal to the Federal Court of Appeal, and I understand this is also a suggestion that has been made by the Canadian Superior Courts Judges Association in their letter to us of March 28, 2023, which is very recent, so I understand you share the same view.
Could you comment on this proposal that was made before the other place when you appeared there? I understand that was voted down.
Ms. Conlon: I can comment in that the submission we have made to this committee is in substance the same submission that was made to the House of Commons standing committee, and I did, in fact, appear there as well. Following what occurred after, there were motions put on the table to add the amendment to the bill, but they were ruled out of order.
As I read it, they were not ruled on in substance but ruled out of order, but this was the position taken by The Advocates’ Society originally when the submission was done to the House of Commons standing committee.
Senator Dalphond: It was out of scope for the bill. Thank you.
Ms. Chang Knapton, you referred to a weird story that happened with the Tax Court of Canada with Justice Spiro, which is well known in the Jewish community in Toronto, and further to some things that came out in public on “The Fifth Estate” on the CBC. It was said he may have exercised some pressure to prevent someone from being hired as a new professor, if I have correctly summarized the story, and as a response to that, the Chief Justice of the Tax Court went on to issue to him, more or less, an order that he would not sit on cases involving either people of Muslim faith or who are Islamic, something like that. I don’t know how you enforce that kind of order.
Juliet Chang Knapton: Neither do I.
Senator Dalphond: It was clearly a weird order. You referred to it as being kind of a look at the face, a look at the name, and it is kind of discriminatory at face value, if I can use the word “face,” but this was not an order from the Canadian Judicial Council. It was someone who happened to be a chief justice exercising his management power in the court, assuming that it goes that far, that issued that kind of order.
That is the main concern that you referred to, and you expressed some concerns that this could happen again. Hopefully, it will not happen again, because it’s such a weird order that I have never heard of before. How do you see us addressing that through this bill, which is dealing with the disciplinary process and the conduct review process?
Juliet Chang Knapton: Again, I didn’t specifically describe the event in those words, but there has been concern with all RODA members about the experience with that particular policy that was instituted.
The way it feeds into this process around Bill C-9 is it talks to the extent of a lack of awareness or understanding of how people from equity-seeking groups experience the judicial process. While that particular instance is one that is out of the scope of the bill, it flowed from a context where the CJC was involved. It was investigating the complaints on this particular matter. The CJC was reviewing the particular complaint against the judge, and there was another action taken at the court level.
My point for bringing the holistic event up — not specifically the details of it — is only to say that it is representative or illustrative of a lack of awareness about what the social context on the ground is and how these things are received. What is happening outside of the public purview that has real impacts on people’s rights, and what is going on?
When we talk about issues around transparency, releasing data and how people obtain information, these are the contexts I wanted to put RODA’s comments in.
Senator Dalphond: I conclude by saying that I understand your message is that we need more training on the social context. It’s already in the act, but obviously even some chief justices didn’t properly understand what that means and you welcome the committee making observations about the importance of judicial training.
Juliet Chang Knapton: Yes, and there are many other areas of the judicial system and the way that equity-seeking groups experience the judicial system that need work. This is one small part.
Senator Dalphond: Thank you very much.
Senator Batters: Thank you both for appearing here today. You both bring very valuable perspectives to this crucial issue on Bill C-9. My question is for The Advocates’ Society. I want to go more into this amendment that you are proposing and your presentation about it today.
In your presentation and in the letter that you wrote to Minister Lametti, The Advocates’ Society states that in its view, Bill C-9, as you stated earlier, overcorrects the existing inefficient system that allows parties to apply for several levels of judicial review of the CJC’s decisions. You state that Bill C-9 effectively eliminates external judicial oversight of the CJC’s actions and decisions, risking substantial unfairness to parties. There is a small amendment that you have proposed to remedy this lack of external oversight.
Have you had any communication with Minister Lametti or the Justice Department officials about your concern and the proposed amendment? Have you received a response about that? If so, what was their response? Or was it only through that committee process, and I imagine the House of Commons Justice Committee chair ruling it out of order?
Ms. Conlon: The only communication that we have had in relation to it was our participation at the committee level and then the outcome of that following the hearings that took place last fall, in November. Apart from that, we have not had any communications with the minister or any of the staff regarding the proposed amendment.
Senator Batters: Can you shed some more light for us on the importance of effective judicial oversight of administrative actions and decisions?
Ms. Conlon: Yes. Thank you. The Federal Court and the Federal Court of Appeal have commented on this as it relates, in particular, to the Canadian Judicial Council on a number of occasions. They have found that the CJC is subject to review by the Federal Court system through judicial review. The Supreme Court of Canada has also commented, generally speaking, that it is a constitutionally protected right that administrative bodies are subject to review.
This act allows some review, but the concern of The Advocates’ Society is that it is inadequate review because of the test for leave at the Supreme Court of Canada. If we look at the statistics of the number of cases that leave has been granted over the last decade, it is in the range of about 8%, which means that 92% of the cases are declined. Most of the cases that are accepted are actually criminal law cases. If we narrow that further to administrative law, which is what this would be, it is even less.
The concern is that the process, effectively, is all internal and it eliminates, in practice, an adequate level of external judicial oversight. We’ve seen a number of cases where the decisions of the Canadian Judicial Council are overturned within the Federal Court system. It is possible to get it wrong without actually meeting the test at the Supreme Court of Canada for leave.
So here, under the new system, without having the appeal as a right to the Federal Court of Appeal, there can be decisions that are wrong and that do not meet the test and have no ability to be externally reviewed. That goes to concerns around the tenure of judges, which is about judicial independence, but it’s also about the public’s confidence in the system. If it’s all internal and not externally reviewed by that objective measure, then we question the issues raised as relating to accountability and public confidence in the system.
Senator Batters: Thank you. You’ve also stated in your written submission to Minister Lametti and to the House of Commons Justice Committee that “Bill C-9 Would Make the CJC an Outlier among other Administrative Bodies.”
Can you elaborate on that, please?
Ms. Conlon: Yes. As part of our preparations for this submission, we undertook extensive research of other examples, including law societies and other regulated professions and administrative bodies generally. We found a number of examples where the right of appeal is to the Federal Court of Appeal. For example, many of the law societies have that, but we were unable to find any example where the only right of appeal was to the Supreme Court of Canada, so that is where that came from. We were not able to locate any other administrative body where the right of appeal only exists to the Supreme Court of Canada.
Senator Batters: Thank you.
Senator Klyne: I have a question for Ms. Chang Knapton.
In the letter we received earlier this morning, you noted that the CJC has a process to file a complaint about an individual experience with a specific judge, but how do stakeholders learn about policies that impact them within the judicial system? Largely, it gets aligned to being a poor lack of communication of policies that impact stakeholders.
Then you go further, and that kind of transcends into the need for greater transparency in the CJC review process to avoid similar contents that you describe in your letter, such as if ameliorative action is taken, at whatever stage should the CJC publish the action and the reasons for doing so, in particular the decision to dismiss a complaint without reason. You give other reasons at points in the process where, again, it should be communicated.
Ultimately, from your point of view, there is a lack of transparency around the subject of complaints. There’s no requirement that the complaint be categorized or detailed, and the public won’t see if complaints are being made and how they’re being addressed.
It seems to me this is a very reasonable ask that you’re making. Where should clearer language be provided to ensure that that is part of the process?
Juliet Chang Knapton: I don’t know where that lies, really; I’m not a drafter of legislation. However, it does need to be codified somewhere. I think it would be fantastic in a bill. If there’s another method to codify that kind of requirement, maybe there’s another way to do it.
The point is that it needs to be done because there isn’t a culture of transparency. As a practice, it isn’t done. To ensure that it is done and to change the tide on the current experience that equity-seeking groups have regarding all kinds of things — usually around assumptions that are being made about them that impact them — then we need to know what is on the table. That comes from not only issues around data explanations but having some confidence or engagement by the judiciary, by the judicial system, with equity-seeking groups at a much more fundamental level.
I agree. I don’t think it’s actually a very unusual request at all. I think in many institutions around the globe, private and public, we are seeing the move to disaggregated data, to being able to actually have somebody other than the institution that is collecting that data be able to analyze it, look at it from different viewpoints and think about what it means in a bigger context. You can’t do that without the information.
We see it across so many different spectrums when it comes to matters of the judiciary, judicial appointments, who is applying and when they are applying. It is sort of out of the scope of this bill, the point being, though, that there isn’t a culture of transparency. It needs to be codified to change that.
Senator Arnot: I’m going to set the context here. My question is really for Ms. Chang Knapton.
Do you agree that the principle of judicial independence, which has, in part, insulation of the judiciary from improper importuning, comes with a corresponding high responsibility that the judiciary has to Canadian citizens, that there is a trust relationship between the judiciary and Canadian citizens? At the core of these complaints issues concerning improper conduct, it’s about the reputation of the judiciary and perhaps a breach of that trust relationship.
If you do, do you agree that the judicial independence should not be a shield to continuous professional development and education on social context issues? Now, I note that you mentioned equity, inclusion and diversity should be present in all aspects of judicial education and all aspects of these processes. So I’m asking that.
Second, I see in section 84 a qualifier, a caveat:
As far as possible, the Council shall name persons who reflect the diversity of the Canadian population to the roster of judges . . .
I mention that because I am wondering why that qualifier is there. It connotes the idea that the existing cadre of all the judges in Canada is not reflective of equity, inclusion and diversity and we need to do much more work on that, and I would like to hear your comment on that.
The other thing that I would like you to speak of is amending the act or making comments or observations. I’ll be frank here: I think that a comment or an observation really isn’t as strong as it should be coming from this committee, and we should be looking at amendments. If there are any amendments you would like to propose quite clearly, please put them in writing, and we will look at them as a committee. Amendments speak much more seriously about what needs to be corrected, and I see this committee on this issue having a very important opportunity to make strong comments about some major flaws in the system, which I believe you have identified. That’s my context setting for an answer to those questions.
Juliet Chang Knapton: Let me do the best I can, and thank you so much for that question, senator. I can’t even summarize the first two questions you asked, but yes and yes, so thank you for those.
In terms of the —
Senator Arnot: You can write about them later, if you would like, but feel free to give us as much information as you want.
Juliet Chang Knapton: Thank you.
In terms of section 84, you have had previous testimony from the Canadian Muslim Lawyers Association and others around the current makeup of our judicial complement across the country. It doesn’t reflect the current diversity within Canada. I think there are some efforts being made to change that, and if my law school classes are any evidence of where we are going with that, I am hoping to see a much more diverse bar coming up the line. That said, there is probably much more that could be done, and you have probably already heard some of the commentary around that.
Let me speak directly to this comment around making amendments as opposed to how we have drafted this particular submission. The point about amendments is this: For an organization like ours, which has something like 22 to 25 membership groups, and around 6,000 voices coming around, it is very difficult for us as non-drafters doing this on a voluntary basis to come up with the appropriate language or a specific recommendation on how the drafting of an amendment should go. Our value to you is probably not along that line, but to try and highlight to you where we see the gaps and what the experiences of our members have been and to hope that gives you the context and the guidance you can use, amongst all the other good information that you are receiving, to put forward a better amendment than probably we would ever be able to draft.
That said, I will go back to our membership and see if there is something more pointed we can put forward to answer that.
Senator Arnot: I think you have the opportunity to make individual comment, notwithstanding the fact that RODA may restrict you.
Juliet Chang Knapton: All right. Well, thank you for that.
Senator Jaffer: Thank you to both of you for being here.
I will start with you, Ms. Chang Knapton. You brought up the case of Justice Spiro, and you spoke about it. Yesterday, when the Muslim lawyers came, when I saw the material they filed, I was shocked. I phoned them and said, “Are you serious? Are you going to file this at the committee? Are you sure?” I could not believe it. I could not believe what was there, and I will tell you why I could not believe it. Muslims are not all brown. Muslims come in all kinds of colours, all shapes, all over the world — even the names; you would not know I am Muslim. How can a judge say, “This is a Muslim person,” except if you are brown, you are racialized? When was it that you first heard about it? Because the Muslim lawyers said they just happenstance found it.
Juliet Chang Knapton: Thank you for that question. Again, I want to make it very clear that I’m not specifically commenting at all in any way on the Spiro matter. RODA’s concerns are around the policy that was developed and in the context in which that developed and the lack of information and transparency around the entire process, also speaking to the restrictions that the CJC had at that time about what it could do in regard to a complaint and, quite frankly, the response that was received, which was pretty much to dismiss the complaint.
In that context, I guess what I can say is we heard about it through our membership, and the Canadian Muslim Lawyers Association is part of our membership. We did not have an independent source. We stumbled upon it when they stumbled upon it. I think the concern that the Roundtable of Legal Diversity Associations had was that when it attempted to obtain further clarification and information about the matter as a serious and concerned party, we could not find a route to do it. We could not find a route to find clarification, to be able to understand all the parts that were moving. It’s hard to meaningfully comment or address issues where you have pieces that are coming out.
Regarding the comments we made around that whole policy situation, the restrictions that the CJC had — also the way the Arab Canadian Lawyers Association along with the Canadian Muslim Lawyers Association, other members of our groups, experienced that entire complaint, the discovery of this policy, the process, people trying to obtain information — the entire thing was lacking. It speaks to gaps in the system. It speaks to gaps in knowledge. It speaks to a whole range of problems.
You are right to be outraged, senator. It was an extremely telling moment about the way that our system functions, who is benefiting and who is kept out.
Senator Jaffer: Have you followed it up, say, with the justice minister or the Chief Justice?
Juliet Chang Knapton: We’ve written two letters to the Tax Court of Canada, and we’ve received no response. As a purely volunteer-run organization who are made up of members who are already doing work within their particular communities, we don’t have a lot of capacity, quite frankly, to chase down a ton of information around these things, so we rely on our members to come forward and basically inform the general group about what is happening.
Senator Jaffer: Thank you.
To both of you I have a second question. Were you consulted before the preparation of this bill? This is Senator Batters’ question that I’m following up on.
Juliet Chang Knapton: Thank you. No, we were not, and I will say that we would have loved to have been. However, this is the first time that RODA has been invited to any kind of federal jurisdiction. RODA is only 10 years old, and until very recently, probably in the last three years, we were not much of a national organization. We’ve now expanded, and we’re growing rapidly. I don’t even know how we were invited here today, quite frankly, so thank you to whoever invited us. But I think perhaps it’s because of that national outreach, where maybe our voices have more value at the table.
Ms. Conlon: We were not consulted in the pre-legislative stage. The Advocates’ Society did provide a submission to the House of Commons Standing Committee on Justice and Human Rights. That’s how we became involved, but beyond that, we were not consulted.
Senator Jaffer: Do you both believe that Bill C-9 will increase public confidence in the judiciary?
Ms. Conlon: We do, overall. As we indicated in our submissions, The Advocates’ Society supports the amendments that are in Bill C-9. To draw on the language of Ms. Chang Knapton, it moves the dial in an important direction.
Apart from streamlining the actual discipline process, the ability to order disciplinary measures short of removal is a very significant advancement. There is a lot of conduct that falls short of that, and the only option was to seek the consent of the judge to participate in remedial measures. Now, the Canadian Judicial Council has the ability to order it.
It’s in those in-between areas that we suspect there are a lot of issues that arise and where the opportunities for education come in.
Discipline, by its nature, is reactionary; you’re reacting to a complaint. The ability to order remedial measures, including education, is an important step in the right direction.
The Chair: Briefly, Ms. Chang Knapton, on the same question.
Juliet Chang Knapton: Yes, it does move the dial, as I have already said. Could it do more? Absolutely. Should it do more? Perhaps.
The reality is that if this is going to take another five years, that is too much harm. Our equity-seeking communities are suffering under the system as it is. This bill hasn’t been changed since 1971, and it desperately needs an update.
I don’t know what the right balance is in terms of amending it and making it better and stronger, but it needs amendment and to move forward. I don’t know what the right balance is there.
Senator Clement: Welcome, and thank you both for being here.
I take your point, Ms. Chang Knapton, about equity-seeking groups operating on a voluntary and consensus basis. It would be very difficult — nigh impossible — to ask you to draft amendments, so I understand your point.
I am encouraged to hear you say your classes are more reflective. When I go back to my law school at the University of Ottawa, it feels very different from when I was there some 30 years ago, which is good. But as a person who has lived experience in the legal profession and a lot of intersectionality, I am often called upon to speak from that space, and it is exhausting.
In your brief, you talk about bringing lived experience into this process, so I wonder if you could elaborate on that. That’s number one. Number two, we talk a lot about consultation; I don’t think we speak enough about relationship building. I am wondering if the CJC works on relationship building with equity-seeking groups. From your perspective, has that happened?
Consultation is one thing, but if we want to move forward, we have to actually build trust in terms of how we communicate with each other and we’re not just consulted for focus groups. Those are my two questions.
Juliet Chang Knapton: Thank you so much, senator. I hear you. It is exhausting, and I can tell you that all of my members are exhausted. I am exhausted. Thank you for taking the space that you do in coming forward and speaking on these matters. I don’t think that people who don’t have lived experience understand how oppressive that is to live with every day. That said, lived experience is a key part of understanding.
I am an educator, though, and I do believe in education, so I have to believe, doing this work in a sincere manner, that people can learn, people will learn and that change does occur. That is the inspiration, driving force and energy that most of our members go forward with. Why bother speaking up if you don’t believe at some level, at some point, somebody with some power will listen, will change — perhaps even the individual themselves — if they are given the time, space, information and tools to be able to make that transformative move?
We don’t change with the snap of a finger. We change because we learn something, we hear something and we have the space, the impetus and attitude to put it all together. A lot of things need to come together for people to develop cultural competency and awareness, and move forward on some of these topics.
The relationship building with the Canadian Judicial Council has been lacking, I would say. I will be cautious here: I haven’t asked the members of RODA if they have developed relationships with the Canadian Judicial Council, but I have not heard of any one of them feeling that they have had a positive experience or that they even really understand the parameters or the guidelines that go into the decisions the CJC makes. Given the context of this bill and so much of what you have heard about how it’s an all-or-nothing decision-making process, it restrains any institution, no matter how good or weak, from being effective. So it is simply not effective in its current model in so many ways.
Senator D. Patterson: Ms. Chang Knapton, I understood you to say that all the decisions of the CJC need to be published, including reasons. Could you expand on why that is necessary? What’s missing in the current draft of the bill?
Juliet Chang Knapton: Thank you so much for that question. I think there is a perception that if something is dismissed at the initial outset, it must be frivolous or vexatious, and what somebody sees as frivolous or vexatious may differ depending upon the context from which that particular complaint was made.
If a proper system were in place, there should be no fear of being transparent about the decisions being made. Frankly, I understand insularity and immunity, and I respect that, but I think there needs to be an understanding that judges are not perfect, nor do I think Canadians expect them to be perfect. But they do expect them to learn, to be fair and to be competent. To be able to see that all acting out in a way that is clear and accessible, you need to have that data. You need to see that the complaint came in, it was given the appropriate amount of space and it was dismissed appropriately.
As a former decision maker, I can tell you that the way a reason is drafted, what information goes into it and how it is dealt with is highly controlled. You can decide how much or how little you want to say about it.
The demand to have a reason for a dismissal at any stage — or whatever the ameliorative process is that you have decided upon at a particular stage — shouldn’t be something that is shrouded in secrecy. We should move to a place where the judges aren’t put in a position of embarrassment but a position where they are encouraged to grow. You are in that position for a very long time; you will affect a lot of people. You have the power to do some very important and good work. Simply because you are in one place at a particular point in your life doesn’t mean that you don’t need to continue growing.
When we talk about issues around discrimination, it is not “one and done.” It is a daily practice of checking oneself, where we are, what we have learned and what we know. It is a constant movement of being aware of all of the pieces that are going on.
That awareness is something that we should be demanding from our judiciary. Their ability to move and be confident in that space and be able to judge with that kind of awareness and confidence is very important.
Senator D. Patterson: I’m glad I asked you that. Thank you.
To The Advocates’ Society, I thought your proposal of limiting the appeal to the final decision was important. You do understand that the present process is susceptible to delay, and there are some notorious examples of that which we want to correct. Can you just explain to me how limiting the appeal to the final act will avoid this problem of delay that we’re all concerned about?
Ms. Conlon: Yes, thank you.
First of all, as drafted and as proposed by The Advocates’ Society, it would eliminate the ability to go to the courts — so to step out of the administrative system on interim or interlocutory decisions — and seek review. Currently they start at the Federal Court, they can then be appealed to the Federal Court of Appeal and then leave can be sought from the Supreme Court of Canada. I’ve heard the minister refer to that process now as a vertical process and the lateral moves are removed. We agree with that: The lateral moves should be removed on the interim or interlocutory decisions, and if you look at the most notorious cases, that’s where the delay arises.
The goal of making the system more efficient and faster is achieved even with the proposed amendment that we’re making because the judicial review of the interlocutory decisions are still gone. They’re not there anymore. The only decision that can be appealed is the decision of the appeal panel, which is the final decision. Once the internal administrative procedures have been exhausted, an appeal as the right to the Federal Court would be open to either of the two participants. And as it stands now, there is one external layer of appeal. It’s to the Supreme Court of Canada, so it’s already contemplated that there would be one that exists in the system. We submit that it should be the Federal Court of Appeal because it is a real right of appeal versus an illusory one.
Senator Pate: I want to apologize for missing part of your testimony. I meant no disrespect, but that doesn’t make it any less disrespectful.
Please, Ms. Chang Knapton, I would like if you could expand on some of what you just raised. You have incredible experience in this area in terms of your tribunal experience, your teaching experience and your lived experience. I am not a racialized woman, but as someone who has tried to raise issues of sexism and racism before bodies and as someone who, unlike my colleague Senator Clement, doesn’t have to go back before those courts, I can appreciate some of the experience of the dismissal, the denial, the denigration, the disdain and the disrespect with which trying to raise those issues is met, including by folks who consider themselves progressive on these issues.
The fact we have some of the folks, particularly very privileged and well-resourced men, in those positions, could you speak to what some of the examples of the experiences of people have been who have tried to call out this racism, sexism and the discriminatory attitudes by the bench?
You’ve alluded to some of it and spoken to some examples, and I apologize if I missed more specificity, but I would like to give you an opportunity to expand. What prompted me to ask is when you said people learn by knowing. A lot of folks have no context; people don’t even notice these things are happening. Sometimes they do it and don’t even know they are doing it to their colleagues or folks appearing before them.
Juliet Chang Knapton: Thank you very much, Senator Pate, for that question.
One of the most difficult things I think for all of us — and I want to say writ large for all people — is we don’t know what we don’t know. When we are accustomed to handling ourselves thinking about things, conducting ourselves and moving within systems in a certain way, we forget that not everyone experiences those systems the same way.
People talk about how they are greeted is more or less important to them and how they are identified by gender is more or less important to them. I note that none of us here, on these name tags, for example — I have not been invited to share what I would like to be referred to as my honorific or pretext — my pronoun is not denoted here and neither are any of yours. That leads to a way of being that removes space for assumptions. I will fill it in and, therefore, I am going to assume, Senator Pate, that you are female and prefer to be called Ms.
Because we don’t make it explicit — some of those systems, those automatic judgments — we don’t realize that there are people moving around in those systems who have a completely different experience with that. If you are somebody who is misgendered your entire life, you are extremely traumatized by that process. So having the ability for people at the front end to be able to recognize you properly, to say your name properly and to identify you in a way that is respectful to you is very important — but we don’t. We don’t do that because we assume I am going be able to tell what I should say to you to be respectful and you will receive it because I am trying to be respectful and, therefore, I am.
I think when I talk about the experiences of diversity-seeking groups, it is the acknowledgement that our systems are based on a lot of assumptions. When we go forward in this context with a complaint to a particular body who doesn’t have lived experience or a particular heightened awareness to the lived experiences of people who may be bringing forward those complaints, that complaint may appear to be frivolous or vexatious. Why would anybody get upset because I called you Mrs. instead of Ms.? Why would anybody get upset about that? You shouldn’t get upset. The commentary is around what they have experienced in life, not about acknowledging that not everyone has had that same experience.
We are all walking around with tender spots — not that we should be walking on eggshells; we all have to have some level of resiliency in life and I don’t want to suggest that we don’t — but we are coming at it from different places. In terms of the way we communicate, the way we receive things like complaints, the way we talk about the disciplinary process and the way we talk about things in very black and white terms — that judge is bad or that judge is good — everyone is on a spectrum, and it depends on where you are on that spectrum at a particular time, on a particular topic, whether you are going to be able to handle that situation properly.
I think that with the suggestions that RODA has tried to make here, we are trying to increase the chance that those sorts of comments, complaints, problems and conflicts will be dealt with in a more competent manner. I don’t know if that answers your question.
The Chair: I have one observation and one question. The question is for Ms. Conlon, but the observation, Ms. Chang Knapton, if that’s correct, is you have created a problem for RODA in the sense that the value of your contributions to us almost certainly guarantees that you are going to be invited back again and that will burden you and other volunteers in your organization more, so thank you for your presentation.
Ms. Conlon, I have a legal question and a brief one. Under the previous regime, with respect to judicial conduct inquiries, there was no judicial review to the existing legislation. The Canadian Judicial Council resisted that, as you will recall, but it got fashioned in any event. There isn’t actually an explicit privative clause in this legislation though there is constructed the appeal route. I am worried that your suggestions, with the greatest of respect — because I have a lot of respect for The Advocates’ Society — won’t matter greatly because judges who decide they want an interlocutory review will pursue one anyway and insist on judicial review.
Similarly, if the only route right now is the legislation as written, judges may still pursue judicial review and argue they should be entitled to that because natural justice was violated. Can you speak a little to the “it doesn’t make any difference” question?
Ms. Conlon: We did look at this in a fair bit of detail and we see section 158 of Bill C-9 as a privative clause. In that bill, it indicates a decision made by the council under any of Divisions 1 to 3, and Division 1 relates to the discipline processes we’re talking about today. It says that it “. . . is not to be questioned or reviewed in any court other than provided for in this Part.” So we looked at that and saw that as a privative clause that does — or at least it is unclear as to whether it eliminates the right of judicial review which gives rise to the concern about whether or not there is adequate judicial oversight and whether the act, as amended, is vulnerable to challenge.
The Chair: Thank you. That’s very helpful.
Senator Batters: Is it correct if I call you Ms.?
Juliet Chang Knapton: I actually refer to myself as “Mx.”
Senator Batters: Okay, no problem. So, Mx. Chang Knapton, I totally recognize you are not, within a volunteer organization, able to do detailed amendments or something like that, but would you consider this a gap? Senator Clement very smartly pointed this out yesterday. Section 84, which is titled “Diversity,” says:
As far as possible, the Council shall name persons who reflect the diversity of the Canadian population to the roster of judges and to the roster of lay persons.
I was pointing out to a witness yesterday that perhaps there’s a limited pool, currently, from which to draw judges. First of all, it’s a very strange comment to refer to “as far as possible,” but then to say “the roster of lay persons.” As I pointed out yesterday, that would almost be the entire population of Canada. Would you concede that this is a gap and something that perhaps we should look at as an amendment?
Juliet Chang Knapton: Thank you very much, senator, for that question. I agree. The wording is something we have puzzled about. My members have also puzzled about it. We were so pleased to see a recognition of a need for equity, diversity and inclusion in all those pieces and therefore some recognition that there needs to be a movement in that way that we were happy to see the clause, period.
I assume the “as far as possible” piece is an expression that drafters were trying to obtain language for. However, yes, it is a gap, and I think it’s a gap that is probably beyond the scope of this bill to address. There is definitely a gap in who is able to access the judicial system in a positive way, who is able to move up within that system, make change and have a voice.
I think the concept of having section 84 is, at least, the beginning of that process. Could the language be better? Yes. Maybe it could be — I don’t know what the word is — “beefed up” or somehow strengthened or clarified. I agree it probably could be better.
The Chair: Thank you to both of our witnesses today. This has been enlightening for us. I confess that our committee is enthusiastic in its consideration of this bill, and you have helped that consideration immensely. I’ve already mentioned the potential for both of your organizations to continue to help us, subject to your availability and willingness. This is certainly one example where that has been absolutely clear for us. Thank you both once again.
At this point, senators, we will be continuing our consideration of this bill when the committee reconvenes in April. Thank you all.
(The committee adjourned.)