THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
EVIDENCE
OTTAWA, Wednesday, April 19, 2023
The Standing Senate Committee on Legal and Constitutional Affairs met with videoconference this day at 4:22 p.m. [ET] to consider Bill C-9, An Act to amend the Judges Act; and to examine and report on the matter of self-induced intoxication, including self-induced extreme intoxication, in the context of criminal law, including in relation to section 33.1 of the Criminal Code.
Senator Brent Cotter (Chair) in the chair.
[Translation]
The Chair: Honourable senators, welcome to this meeting of the Standing Senate Committee on Legal and Constitutional Affairs.
I would like to ask the senators to introduce themselves, starting on my left.
Senator Boisvenu: Senator Boisvenu from Quebec.
Senator Dalphond: Senator Dalphond from Quebec.
[English]
Senator Klyne: Marty Klyne, a senator for Saskatchewan, Treaty 4 territory.
[Translation]
Senator Dupuis: Renée Dupuis, independent senator, senatorial division of The Laurentides, Quebec.
[English]
Senator Jaffer: Mobina Jaffer, from British Columbia. Welcome.
Senator Pate: Kim Pate, Ontario. I live here in the unceded, unsurrendered territory of the Algonquin Anishinaabe.
Senator Patterson: Dennis Patterson, from Nunavut.
Senator Batters: Denise Batters, Saskatchewan.
The Chair: I’m Brent Cotter, the chair of the committee, from Treaty 6 territory in the homeland of the Métis.
Today we are continuing our study of Bill C-9, An Act to amend the Judges Act.
We are joined today by Professor Richard Devlin, Professor at Schulich School of Law, Canadian Association for Legal Ethics; Raphael Tachie, President, Canadian Association of Black Lawyers; and Rosemarie Davis, Vice President, Canadian Association of Black Lawyers.
We will begin by inviting both Professor Devlin and Mr. Tachie to make five-minute presentations, to be followed by questions and discussion from the senators. I’m going to invite you, Professor Devlin, to begin.
Richard Devlin, Professor, Schulich School of Law, Canadian Association for Legal Ethics: Good afternoon, Mr. Chair, and thank you for inviting me to appear as a witness on Bill C-9.
I’m a professor at Dalhousie University in Halifax, Nova Scotia. I’m here as a member of the board of the Canadian Association for Legal Ethics, more specifically because, in the last couple of years, I have edited two books on the issue of judicial discipline. One is called Regulating Judges and the other is Disciplining Judges. Those books bring scholars from around the world to give their best wisdom on this particular difficult issue.
The research from those books indicates two key points. First, the design of a complaints and discipline process is not just a technical project. It’s an important act of statecraft. It’s about allocating and distributing power within the polity. Second, because we’re involved in an act of statecraft, it is vital to identify the principles or values that should inform the design and implementation of such a regime. Historically, two principles were identified, primarily independence and accountability, but the research indicates that, in fact, there are a number of other key values that need to be borne in mind, and these are the principles of impartiality, fairness, transparency, representativeness, proportionality, reasoned justification and efficiency.
I have reviewed the transcripts of the previous meetings of this committee, and it’s very obvious from those conversations and your questions that you certainly appreciate the significance of this legislation and the importance of calibrating these various values.
Bill C-9 also attempts to calibrate these values but does so in a way that puts excessive emphasis on two values, that is, independence and efficiency, and does not do enough to give sufficient attention to the values of impartiality, fairness, transparency, representativeness and reasoned justification.
The Canadian Association for Legal Ethics suggests at least five types of reforms to this legislation.
The first one is that not enough attention is paid to the rights of complainants, thereby compromising the principles of fairness, transparency and reasoned justification. The original bill only had one reference to the rights of complainants. It stated in clause 87 that the CJC “shall establish policies respecting the notifying of complainants of any decisions made . . . .” At the House of Commons committee, there was an addition to those, providing that the reviewing member and the review committee “shall inform the complainant in writing of their decision and the reasons for it.” These two amendments do not go far enough. There are four additional reforms required: First, the screening officers should also have a duty to give reasons if they dismiss a complaint. Second, complainants should have a right to request a reconsideration of a decision to dismiss a complaint. Third, complainants should have a right to be kept reasonably informed of the progress of their complaint. Fourth, complainants should have a right to request to participate in the hearing panel process on the basis that it would be in the public interest to do so.
Our second major concern is that there is insufficient lay representation in the process, thereby compromising the principles of impartiality, independence and representation. There is lay representation at only two stages in the process. They are one of three members of the review panel and one of five members of the full hearing panel. In other words, the lay participation is ad hoc and occasional rather than pervasive and structural. Again, there needs to be four reforms: First, there should be lay representation on the reduced hearing panel. Second, there should be lay representation on the appeal panel. Third, if there is a request by a complainant for reconsideration of a decision to screen out that complaint, there should be lay representation in that reconsideration process. Fourth, there should be lay representation in the decision as to whether to go forward with an anonymous complaint.
Our third major concern is with the composition of the reduced hearing panel and that its processes may favour the impugned judge, thereby compromising the principles of impartiality, independence and representativeness. There are three problems here. First, as I have already indicated, there is no lay representation on the reduced hearing panel. Second, clauses 104 and 110 of the legislation seem to give the judge an automatic right to choose a reduced panel rather than a full hearing panel if the review panel is proposing something less than a recommendation for removal. Third, clause 15 suggests that the reduced panel hearings might not be in public. In other words, a judge can choose to avoid any lay engagement at this stage of the process and perhaps have it in private, and that’s problematic. The solutions are threefold: First, again reiterating, lay representation should be on the reduced hearing panel. Second, the reduced panel should be discretionary, not at the option of the judge, and only if it’s in the public interest. Third, we should identify explicit criteria as to when the reduced hearing panel can be in private.
Our fourth point is that the remedies for misconduct are not sufficiently comprehensive. They do not include a power to suspend, thereby compromising the principles of transparency and proportionality.
Our fifth and final point is that the stipulated elements in the annual reports by the CJC are not adequately tailored, thereby compromising the principles of accountability and transparency. In other words, the annual report should, for example, include statistics on the demographics of the complainants, for example, based on race, gender, sexual identity or disability. There should also be an articulation of the types of complaints that are coming to the CJC. Is the alleged misconduct inside court or outside court? Is it based on incompetence? Is it based on discrimination?
Those are the five concerns that we have. I’m happy to expand upon them in the question and answer period.
I want to conclude by saying that it’s been more than five decades since this legislation was subject to legislative review. The role of Canadian judges has changed profoundly in that time, Canadian democracy has changed significantly in that time, and the expectations of the public have changed enormously in that time. It might be another 50 years before there is another legislative review of this legislation. Bill C-9 is a unique moment. The Canadian Association for Legal Ethics is happy to help the Senate try to improve this legislation. Thank you very much.
The Chair: Thank you, Mr. Devlin. I’m sure we’ll follow up in the discussion on the points you have raised and perhaps others.
Raphael Tachie, President, Canadian Association of Black Lawyers: Thank you once again for inviting the Canadian Association of Black Lawyers to speak to you on these important issues related to criminal justice reform.
Before I start, I would like to highlight that I understand that the Roundtable of Diversity Associations out of Ontario presented to this committee last month. CABL is an active member of that association. We are aware of the content of their presentation, and we are fully supportive of that presentation. We’re participants of their written comments.
For the purpose of our presentation here, I want to highlight a theme that drove our analysis of the proposed amendments. We represent a community whose members do not always have access to justice, so the reforms proposed to Bill C-9 focus on providing transparency and access to associations such as CABL and awareness of the complaints processes available and the basis for complaint and the policies behind certain resolutions so that we can, when the occasion is appropriate, stand up and intervene on behalf of the members of our community.
You will notice in RODA’s written submission that it highlighted a case in front of a Tax Court involving litigants of the Muslim faith. As an association, we had reached out and collaborated to try and get some information about the policy behind some of the decisions of the Tax Court, the Federal Court at the time. What we found was a very challenging situation in terms of getting access to the policy and rationale behind certain decisions. Associations that I represent, equity deserving groups and immigrant communities do not always have access to appropriate legal representation. Amendments that provide and make transparent to the public the basis for complaint, the basis for certain policy decisions, so that we can have access to it, allow us to represent the interests of our communities.
In particular, for CABL, one of our core mandates over the last few years has been interventions, as well as presenting community impact statements before courts and adjudicative bodies when particular incidences impact — even though they are individualized — Black Canadians as a whole, so the opportunity to understand and see the basis for a complaint or policy decision around how certain complaints are dealt with is helpful for us to represent the interests of our communities.
Finally, I want to complete my comment around judicial education requirements and to focus on seminars for the education of judges, including seminars on matters relating to sexual assault law and social context. I had the opportunity to speak to the house committee a few years ago on similar language, and what we proposed at the time was that it’s incumbent on the committee to balance judicial discretion with the requirements for education. One of the things that we ought to hold high being able to have a judiciary that reflects the diversity of experiences in Canada. We are not there yet, but if we focus our energy on that, prescribing education seminars becomes less critical. The focus should be working with the judiciary — I think this bill takes the right approach to that, but it just doesn’t go far enough — to help them develop and access community research and information about the different experiences of various Canadians who appear before these courts.
The other piece of the bill that we were interested in understanding more was the frequency of seminars and education that judges have to go through. While we are supportive of a non-prescriptive requirement for education, we would very much like to see a prescription around the frequency of education and access to community resources that inform judges on the diversity of experiences that show up before Canadian courts. It will be helpful to see this in the bill.
Thank you very much for the opportunity to speak to you once again, and I’m happy to take questions.
The Chair: Thank you, Mr. Tachie.
We will now open it up for questions and discussion with senators, beginning with Senator Dalphond, the sponsor of the bill.
Senator Dalphond: Thank you very much to the witnesses we have both in person and virtually. I think it’s always good to hear from people that have interesting comments and perspectives to offer.
My questions will be directed to Professor Devlin because I think he wanted to say more than what he was allowed to say in five minutes. I noted many points, and I won’t be able to cover all of them. I’ll cover one, and I guess my colleagues will cover the other ones.
On the last point you made about the data, complainants, the treatment of complaints and the nature of complaints, I assume you referred to the fact that the annual report, which I have in my hand, gives you some numbers, but it’s an introduction to the complaint process and it stops there, so you want to get more information. Maybe you could elaborate on that.
One of the other issues you mentioned was to refer to some data about complainants, which I guess will require a kind of form for complainants where they have been invited — but I guess it will not be compulsory — to declare their sex, to declare whether they belong to a racialized group or the LGBTQ community or that they self-identify, as we do, for example, when they become judged or other things. Could you elaborate exactly on what you are looking for and what we could invite the council to do to give some observations to include in the next reports?
Mr. Devlin: Thank you, Senator Dalphond.
I’m probably one of the few people in Canada who has actually read all of the annual reports of the CJC going back to the 1980s. We see a difference in those reports over the years. Back in the 1980s, they started off quite thin, maybe 10 pages, but they then get up to 60 or 70 pages over the years. In the 1970s, ‘80s and ‘90s, they were quite substantive and qualitative. They actually talked about the sorts of challenges they were having and the complaints that were coming forward. They talked about family law and they talked about self-represented litigants. They were very fulsome reports. Since about 2016 — I see you have got one with you there — they have become very thin. They are essentially pie charts and graphs, and they don’t give any substance or real sense of the issues that are coming forward.
The idea here is actually not necessarily to go back to something that’s as descriptive but to really to identify whether there are patterns that are appearing in the complaints processes. Are they based on race? Are they based on gender? Are they things that happened in the courts, or are they things that judges might be doing outside the courts? The ones I have identified — and there may be many others — would be, again, the distinction between potential misconduct within the court or outside the court. It might be related to competence in terms of either knowledge of the law or the ability to treat people with appropriate dignity and respect in the courtroom, or it might be elements of discrimination. Those are at least three criteria that I think would be helpful.
In terms of demographics, others might have extended views on this, but I certainly think that gender variables would be important here, race variables, sexual identity and disability. On your point, this is all, of course, subject to voluntary disclosure. You can’t require people to self-identify. You might have others in the actual complaint itself. You may have another box that has something that identifies them or other options or variables that you would like to identify.
I think one of the previous presenters from RODA said what gets measured gets counted. That’s a very effective statement to indicate that we need data to really understand what’s happening in the process. There are a lot of allegations and concerns in the larger community about judicial misconduct, but if we actually had some real data, we would know if there is any veracity to those concerns, and if there is, we could generate further reforms to try to respond to those concerns. It’s really about knowledge helping us design better systems.
I hope that answers your question.
Senator Dalphond: You are not asking the data to be identifying judges as such but to be aggregated data. There are so are many complaints about, for example, inappropriate comments. If there is one per year or there is 300, there is a different pattern there. Maybe there is more training required on that issue, for example.
Mr. Devlin: That’s right. For instance, there might be a particular issue that a judge makes on a particular decision, and many get upset about that decision. There might be one judge but 300 complaints. It’s really still just the one issue for the large public interest. Then there might be another situation where there is only one complaint but it is a very important complaint, even though it only involves one person. Again, that’s the sort of information that needs to be captured rather than just raw numbers that don’t give us a real sense of the issues.
Senator Dalphond: Do I have more time?
The Chair: Not really. I think we’ll have more time for a second round, subject to how many questioners there are.
Senator Batters: My questions are for Professor Devlin. Thanks for being here. I appreciate all of your work on this important issue.
First of all, I want to start with what you briefly had the chance to outline today and what you said in your Justice Committee testimony at the House of Commons. To start, I want to focus on the fourth concern you voiced there:
Our fourth point is that the remedies for misconduct are not sufficiently comprehensive. They do not include a power to suspend, thereby compromising the principles of transparency and proportionality.
I have been concerned about that particular aspect as well, Professor Devlin. Could you please elaborate on your concern with remedies for misconduct, and, in your view, why is it important for those remedies to include the power to suspend a judge?
Mr. Devlin: Thank you very much.
First of all, it’s a very important step forward that the legislation does have the seven potential remedies. They did not exist previously. Before, it was just a recommendation for removal. The CJC has been using many of these remedies without legislative authority over the years, so all this is doing is codifying actual practice.
The one that’s missing is suspension, because when you look at the seven penalties identified in clauses 102, 113 and 120, they are actually mostly relatively light. You go from them to suddenly a recommendation for removal. There is nothing graduated about this. Suspension fills in that gap in the middle. Also, many of those remedies can be in private. They are not necessarily public. So there are two concerns there: There is a big jump, and then they can also be in private.
I’m not sure whether it’s appropriate in this forum to identify a number of cases where judges potentially could have been suspended for their misconduct but weren’t and where we didn’t go as far as removal, but I can mention some cases that, in my opinion, would be worthy, if not of removal, then certainly suspension. We can think about the Nova Scotia Court of Appeal judges in the Marshall case, where they said that Donald Marshall Jr. was sort of the master of his own destiny. We can think about the case of Justice Boilard in Quebec, who, frankly, was upset about some criticism of him and walked away from a major biker case. I understand it cost millions of dollars to retry the case. Some people might argue that the recent case with Justice Spiro, involving a university hiring process, might be worthy of suspension. Then, recently, there were concerns about Justice Clackson in Alberta, where there were discriminatory comments about a Nigerian expert witness.
There are a number of cases where maybe the remedies that are available now would not be enough, and I think the power to suspend a judge could happen at two stages. The first might be while the investigation is happening so as to protect the public from a judge about whom there are concerns, for example, based on discrimination. The other situation might be that after the process is completed, a suspension might be appropriate to express concern about the egregiousness of the misconduct which was not so great as to warrant removal but to seriously sanction the judge for that misconduct. It can serve two functions in that regard.
Senator Batters: Thank you very much.
When I asked Minister Lametti about it, he deferred the question to his official, who responded that their thinking was something along the lines that if they thought it was serious enough to potentially look at suspension or a docking of pay, then they thought it might be serious enough to actually look at removing the judge. I was surprised by that reasoning, especially because a number of the provinces, I have just recently learned, have this ability to suspend a judge with or without pay. Those are, of course, provincially appointed judges. I don’t really see what the difference would be for this particular situation. What would you have to say about the provincial ability?
Mr. Devlin: I agree I was unpersuaded by that reasoning. I read the transcript. I would point out, though, that in some provinces, provincial court judges can be suspended, but so too can judges in Australia, England, Wales, Netherlands and the U.S. Those are similar democracies to ours, so I don’t think there is a particular threat of judicial independence. Many other advanced democracies do this. There are strong precedents for it.
I would also point out that chief justices can also temporarily suspend members. The concern with that is that you end up with a checkerboard system. One chief justice might think something is worthy of suspension but another one doesn’t, whereas you have some uniformity through the Canadian Judicial Council. Then at least you would have a cohesive picture of suspension.
I don’t think it’s a radical suggestion. I think it makes sense if we’re interested in a continuum of potential sanctions. It fits in very nicely and there isn’t this significant leap.
Senator Batters: Exactly. And would you —
The Chair: May I invite you to a second round?
Senator Batters: Absolutely.
[Translation]
Senator Boisvenu: My question is for Mr. Devlin.
I followed your testimony attentively and my first question is this: If there is no amendment to the current bill — and that is what you are suggesting — do you believe that the public trust could be altered or that trust in judges, which would come under review, could be altered? Could the public trust be altered if the bill is adopted as it stands?
[English]
Mr. Devlin: Thank you, Senator Boisvenu.
My sense of this is that, first of all, until recently, this legislation was very much flying under the radar of many Canadians. Having said that, I think there are enough cases happening in Canada that people are increasingly concerned about whether there is an appropriate regime for ensuring accountability of Canadian judges.
If these reforms aren’t added, then there will be concerns about how seriously the complaints are being taken and how seriously complainants are being taken in the process. For example, when you look at the legislation, there are 15 references to the procedural rights of judges. There is only one reference to the rights of complainants. There is clearly an imbalance in terms of responding to the legitimate rights and interests of judges but also the legitimate concerns and rights of complainants. I think many complainants will say that nothing has really changed with this new regime in any significant way.
It is similar in terms of lay representation. Advocates of the legislation have made a great deal of the importance of lay representation. As I mentioned, lay representation only happens at two stages of a five-stage process. Again, the lay representation seems to be ad hoc and sporadic rather than being built into the DNA of the legislation.
So people might look at legislation and think that there has been some improvements, and yes, there are absolutely some benefits in this legislation, but the opportunity is being missed to really make it responsive to the needs of Canadians in 2023 and going forward.
The Chief Justice once said in 2018 that we have a regime from the 1970s that’s operating in the mid-2010s. I would think that if this legislation goes forward as is without reforms, the legislation that is maybe from the early 2000s is going forward for the 2020s and 2030s. I think we may be a decade or so behind where public expectations of accountability are being matched.
The Chair: Professor Devlin, could you be cautious about not moving the earpiece in front of the microphone? It produces feedback for those listening in. You may need it for the next question, but if you do set it aside, it would be safer for our —
Mr. Devlin: Sorry. Technology is not my strong point. My apologies.
[Translation]
Senator Boisvenu: My second question, Mr. Devlin, is about the CJC report. You referred to the Canadian Judicial Council, for the people listening. Do you believe that the current reports lacked transparency, and do you believe that the content of those reports should be reviewed to be even more explicit about the types of offences or behaviour being judged?
[English]
Mr. Devlin: Thank you very much.
As I mentioned in response to one of the previous questions, the reports are helpful. There is some data in the reports at the moment, but they are, in a sense, very spartan. They are quantitative rather than qualitative. I think people want to understand how the system is really working. We have got some numbers here, but what are the real problems that people are having with judges in Canada? How is the judiciary responding to these problems? They need to be, as I have said previously, more fulsome. They don’t need to be 80 or 90 pages again, but they just need to be more specific as to the types of concerns. Are the complaints being made, for example, in the family law context or in the criminal law context or in the tax law context? What’s the context here? The report needs to be more contextual, with lots of data, but also slightly more qualitative as well to give an assessment.
Certainly, in some of the earlier reports, the Chief Justice, in drafting them, reflected on the state of the judiciary at this moment. They were almost like a state of the nation address but for the judiciary. Those reports showed the imprint of the personality of the Chief Justice. The current reports appear to be drafted, essentially, by an administrator and they give data, but they don’t give a reflection on how well we are doing as a judiciary. Something that’s a bit more reflective and contextual would inform the public of where the judiciary is at and how it’s trying to make sure we have the best judiciary in the world.
Senator Jaffer: My question is to you, Mr. Tachie. The reason for this bill, I would imagine, is that the government wants people to have confidence in the judges and in the complaint process. What have you heard from your association members about the complaint process, and where are the gaps?
Mr. Tachie: Thank you, Senator Jaffer.
The first piece is that our association has been very intimately paying attention to certain judicial complaints because it impacted our communities directly. I was interested in hearing Professor Devlin’s comments around suspension as part of the medium of remedies. One of the things that we have to consider is that suspension, depending on how you apply it, can create stigma, and it can create stigma against particular kinds of judges. We know, for example, that certain Black judges, when they’ve provided analysis and take race into it, receive blowback from the community. We see that in newspapers. We see that in various commentaries. What we want to highlight is that the complaint process works if it is transparent and we can all see it — and my colleague Rosemarie will speak a bit about that, given the opportunity — but more importantly, the process of how remedies are applied is also important because they can create certain stigmas for particular kinds of judges who are sometimes viewed with a brighter light and a wider scope on those things. While the bill takes a great step forward, we need to be intentional and purposeful about thinking through how the process works as well as the types of remedies that are available and how they are applied.
The Chair: Would you like to provide some additional observations?
Mr. Tachie: Was that question to us?
The Chair: I was following up on your observation, Mr. Tachie, that Ms. Davis may want to speak about issues and expectations of transparency.
Rosemarie Davis, Vice President, Canadian Association of Black Lawyers: Thank you so much for that question.
To what my colleague had said, the lack of transparency breeds mistrust, obviously, in the community, and this is an existing condition as it is. You may have heard my colleague mention the incident with the Tax Court and the council litigants of the Muslim faith, and this was with respect to a policy that was implemented by the Tax Court in or around 2020. When a community is not aware and does not know about the reasons for a policy, the purpose behind the policy and how it impacts a particular group and, in this case, marginalized communities, it breathes into an existing system of mistrust. This is certainly an opportunity for the bill to think about how best it can create visibility and more transparency around the decisions that go into, for example, the review panel’s decision-making process. That is critically important. When you know what you are dealing with, when you know how you are affected by a policy or a decision-making process, then you know how better to arm yourself.
The Chair: Thank you very much.
Senator Jaffer: Ms. Davis, I want to say to you that when I read this bill, it really frustrated me because it’s using very neutral terms like “discrimination” and words that I think society has moved on from. It’s systemic; it’s not discrimination. It makes me get the impression that either the court system or the government is behind. They are not naming it. I know you have done work on naming an issue. What do you think, after having read this bill, about naming issues?
Ms. Davis: I agree that it needs to be more explicit. We are in a time and in an era where systemic discrimination is experienced. It is felt. I can say it is my lived experience. It is important that we call it out for what it is. These bills, as they are being crafted, need to be explicit in their language. Perhaps one way to go about that is to speak to us — as the Senate is doing now — and speak to the individuals who are having the lived experiences. We need to call it what it is: racial discrimination. Systemic discrimination. You are right that the language is vague. I may not have the right language, but this is an opportunity to figure out what that language should be.
Senator Jaffer: Discrimination could be against any group, and I find what’s frustrating in this bill is that it doesn’t name the different systemic discriminations, because “discrimination” is nowadays — maybe not before — a very neutral word.
Ms. Davis: You are right. I agree with you, senator. In fact, there could be sexual orientation discrimination. There is disability discrimination. There is gender identity discrimination. Here is an opportunity to be more explicit and be more detailed in the types of discrimination that are actually out there and that individuals are experiencing at the community level.
The Chair: Thank you, Ms. Davis.
Senator Klyne: Welcome to our guest panel here.
My first question is for Professor Devlin. You had suggested in your testimony before the House of Commons that clause 87 is unsatisfactory because the complainant is shut out of the process once the complaint is filed. You suggested that the complainant should have a right to be informed about the progress of the complaint and should be given reasons if the complaint is dismissed. If there are hearings or an appeal, they should also have a right to participate, and they should have a right to request reconsideration of a decision at any stage in the proceedings. This is particularly important if it is dismissed by the screening officer, the reviewing member of the CJC or the reduced hearing panel.
Just to focus on the request for reconsideration, would procedural fairness be served or satisfied if certain grounds for reconsideration were given, such as allowing a request for reconsideration following a reduced hearing panel?
Mr. Devlin: I didn’t get the last part of your question. Could you repeat it again? I missed it. I’m sorry.
Senator Klyne: Yes. I’m just wondering if procedural fairness could be satisfied if certain grounds for reconsideration were given, such as allowing a request for reconsideration following a reduced hearing panel.
Mr. Devlin: The conversation around reconsideration comes out of a particular case in Ontario. There’s nothing in the CJC’s policies or bylaws that will allow for reconsideration at all. There was a complaint against a judge in Ontario made by members of an Indigenous community. That complaint was dismissed. The Indigenous Bar Association sought a reconsideration of that decision. It was dismissed at the initial stage by a member of the judicial panel at the screening stage. It was reconsidered, and then it was moved forward to a review process, an inquiry process. That took about two or three years, by which point the judge had reached retirement age and the process stopped. The problem with reconsideration is there’s nothing either in the bylaws nor anywhere to say there’s a right of reconsideration. It seems to be completely ad hoc.
The second point is that the right to request reconsideration needs to be available at several stages of the process, particularly at those stages where there’s no lay representation. If there’s no lay representation at, for example, the reduced hearing panel, there should be reconsideration. I’m trying to marry the idea of reconsideration with lay representation. That’s why it’s particularly important to go back to the screening stage, because the vast majority of complaints are screened out very early on. Only about 10% or less go to the later stages of the process.
When you come to the question of — which stage were you mentioning again?
Senator Klyne: I was asking about grounds for reconsideration probably at the end.
Mr. Devlin: Under the current —
Senator Klyne: Because they can’t participate.
Mr. Devlin: The final stage of the process now is this: After there’s a decision by the full hearing panel, there can then be an appeal to the appeal panel. I wouldn’t say there’s a requirement for reconsideration there because there’s an appeal mechanism. The reconsideration requests, I think, are more important at the earlier stages to the process rather than at the later stages of the process because there are mechanisms in place within the proposed regime to allow for appeals, which are different from reconsideration. It’s an opportunity for an additional consideration of the process. They’re not necessarily at the latter part. They’re more important at the earlier parts.
Senator Klyne: So you can probably say at any stage of the proceeding?
Mr. Devlin: Yes, there needs to be a second opportunity for rethinking. The proposed regime allows for that sometimes but not always. The Federal Court of Appeal and the Federal Court have said that the CJC is not an infallible institution. Sometimes people make mistakes. There should always be an opportunity for a second thought. I don’t know if that helps.
Senator Klyne: I would ask a connected question of Mr. Tachie or Ms. Davis. Do you agree with Mr. Devlin that complainants should have a right to participate? If so, how and to what extent should they be able to participate?
Mr. Tachie: I would agree with Professor Devlin that a complainant should have a right to participate, subject to a few caveats, which was part of my initial comments. In some instances, a complainant does not have the ability to fully participate. Having access and recourse to associations and groups and organizations that work with particular communities, where the complainant is from that community, might be a helpful way of including the voice of a community when the complaint, for example, impacts an Indigenous community, a Black community or a particular kind of immigrant community. That’s a helpful way of bringing in the full context of an experience that someone might have before a court or with a judge.
The Chair: Thank you.
[Translation]
Senator Dupuis: Thank you to the witnesses for being with us today.
I have a question for Professor Devlin and for Mr. Tachie.
In your presentation, you seem to have highlighted the fact that expectations about everything related to the justice sector are much too high compared to certain requirements. You listed a certain number of principles. I agree with that.
Does Bill C-9 seem to address a desire by the government to cut costs? Currently, a judge can challenge a decision at several stages. That can take years and is very costly. It can be assumed that Bill C-9 addresses that issue. Does Bill C-9 address anything else? I have a hard time seeing it.
[English]
Mr. Devlin: Thank you very much for the question.
You’re absolutely right when you say that efficiency concerns and cost concerns are driving a great deal of this legislation. There were a couple of cases in the last several years that lasted six or seven years. One of them lasted almost 10 years. There were issues around the costs of that, the legal costs and the time of the CJC. There were issues around the retirement benefits and pensions for judges. Those efficiencies and costs have taken an undue precedence in driving this bill.
If we’re going to achieve public confidence, efficiency is one concern. Certainly, people are concerned about the possibility of judges drawing out the system for a long time, as the government has indicated. But the public is also concerned about accountability, transparency and the representative participation that I mentioned. If you’re going to achieve this abstract idea of public confidence, you need to try to touch several key points.
Primarily, this bill tries to emphasize the importance of procedural rights for judges — which is absolutely appropriate — and efficiency, but it doesn’t do enough to support complainants or to include lay representation or provide sufficient transparency. The bill is certainly an improvement over the current regime, but it’s not sufficiently well calibrated in trying to bring in these other important public goods.
I’m not sure if I answered your question.
[Translation]
Senator Dupuis: With respect to the issue of the efficiency of the system for women, who are often victims of discrimination in the judicial process, the response in Bill C-9 is not at all satisfactory. It will cost them less in taxes, but they have no assurance in terms of transparency or justice. If they want to file a complaint, they will be better received than they were to date, is that right?
[English]
Mr. Devlin: Certainly the analysis that I’m presenting today says that if you were a complainant and if you had a particular concern around, for example, gender discrimination, I don’t think complainants have enough rights in the process at the moment. Therefore, the Canadian Association for Legal Ethics is saying that we need to do more to respond to the rights of complainants. The complaints are diverse, as Mr. Tachie and Ms. Davis indicated, based on race, gender, sexual identity or disability. Again, the legislation has prioritized a certain public good, which is a positive step forward, but it could just do a bit more.
[Translation]
Senator Dupuis: Mr. Tachie, could you tell me if I’ve correctly understood your comments?
I do not know if your organization was consulted by the Minister of Justice. You spoke about training on the social context. I thought I understood that you were suggesting that organizations like yours, which can be described as community resources, should be stakeholders with the Canadian Judicial Council to provide training and determine its content.
[English]
Mr. Tachie: No, that’s not exactly what I mentioned. CABL is certainly a representative of a particular kind of experience of Black Canadians. For example, we’re all lawyers. We’re not fully reflective of the full breadth and tapestry of the Black experience in Canada, for example. I would not suggest that we be the drivers of training, but we appear before judges and represent clients before judges so we have certain experiences that we can share. What I was suggesting was that the development of training take into account the views and experiences of various community resources, not specifically CABL. We’re actually not in the business of offering training in that sense. That’s what I meant. I hope that clarifies it.
[Translation]
Senator Dupuis: Thank you. That answers my question.
[English]
Senator Pate: Thank you to the witnesses.
My first question is very basic. One of the things Minister Lametti has said in introducing this is that Canadians need to know that the judicial system is fair to all and then he touted this bill as a way to increase public confidence in our judicial system. I think you’ve been very clear, Professor Devlin, about your views on that, as has CABL. I’d like to know if you were consulted. You’re an expert in this area. You’ve written two books. You teach in this area. You’ve been involved in judicial education. Were you consulted on this bill?
Mr. Devlin: The Canadian Association for Legal Ethics responded to the initial discussion paper that came out in 2016. I will confess that I forgot that we actually had responded to that because it was in 2016, and simply because our president, Amy Salyzyn, was able to dig it out of our own archives we were able to find a document where we responded, but that document is seven or eight years old now. It was very much a response to what I think was sort of blue skying by the Department of Justice. We certainly weren’t consulted in any form when this legislation was coming forward. I would compare it to the process around the creation of the revised ethical principles for judges, which came out a couple of years ago. In that process, not only were there initial sort of blue skying ideas, but once the principles were starting to be articulated, people were invited to give their feedback on them. People knew specifically what they were responding to. We were not consulted in any formal way. We were watching where things were going. It was also happening initially through the pandemic, so nobody was particularly interested in this journey in the early 2020s. It’s only really in the last six months, I would say, that people have started to pay attention to this particular legislation. So we were not formally consulted in any way.
Senator Pate: Thank you for that.
You’ve made a number of recommendations. I know it’s late in the game, and unfortunately we are going quickly to clause by clause on this. Do you have any articulated or suggested amendments that you would be able to share with the committee?
Mr. Devlin: I can try to work on those, is the best I can say.
Senator Pate: If you could, that would be extremely helpful. Thank you very much. We need it tonight, actually.
For both you and CABL, it strikes me that your expertise and your knowledge in this area are vitally important. You’ve already given us your position on disaggregated data, so I’m not going to ask you about that, but there have been so many cases, as alluded to by some of my colleagues, that never get to the complaint stage because the individuals don’t trust the process or the system. How would you recommend we monitor cases that veer towards that?
I can think of a number of cases involving sexual assaults or violence against women where it’s very clear that there are sexist and racist attitudes being applied, class-based attitudes as well as gender identity and gender issues generally and disability issues that you’ve identified that never get categorized. Is there a way you can see that a comparison of cases and outcomes can be looked at in terms of where we see patterns of judges acting in certain ways so that we can look at systemic challenges?
Mr. Devlin: Should Mr. Tachie go first? If I’m in the room, I might get more attention. Perhaps he should go first and then I can follow up.
Senator Pate: That’s a great idea. Thank you.
Mr. Tachie: In the same vein, I’ll call on my colleague Rosemarie to see if she has other thoughts as well.
I would, Senator Pate, raise a really interesting point that from CABL’s perspective, we support but are also wary of how it can be abused. Professor Devlin touched on measurements and reporting and the nature of reporting. That’s a helpful resource to put out so that organizations like CABL and the Indigenous Bar Association, who are involved in the community and see systemic issues, may be able to identify those. The second piece, and the direct answer to your question, is that it is an opportunity for these organizations to sometimes raise those issues if LEAF, the Women’s Legal Education & Action Fund, or CABL, for instance, see different perspectives and different complaints that might not show up on an individual basis but may be raised and may be potential on a systemic basis. To me, that’s an opportunity, but I’m wary of how it can be abused. Having not worked through and thought about it, I’m careful about how far this should go. I believe it’s an exploration of the ability for communities to bring complaints.
I’ll stop there, and maybe if there’s anything else, I’d be happy to answer it later.
The Chair: Thank you very much.
Senator Dalphond: Maybe just to follow up on the discussions we are having about the level of participation of complainants, if we look at the report — and the report is not very detailed — we know that 336 complaints were opened, according to the report of last year, and 303 were closed, which I assume represents that some were related to provincial court judges and some were related to people who may be abusing the process, people who don’t understand the difference between a complaint and an appeal about the substance of the judgment versus the behaviour of the judge. Isn’t it dangerous if we open up too many review processes? The complaint is dismissed, so then they can go to another level to have a review of the rejection of a complaint?
Mr. Devlin: Sure. That’s very much an articulation of the efficiency concern. If there are 300 complaints — in fact, there have been 600 complaints in recent years. That’s a concern.
It seems to me that there are, broadly speaking, three reasons why complaints may be dismissed, and you’ve mentioned them. One reason is maybe the complaint is actually against a provincial court judge. That’s not hard to explain. If someone wants a reconsideration of that, that’s a one-line answer. It’s not a lot of resources. Secondly, if the complaint is about a distinction between an appeal and an allegation of misconduct, again, that’s not difficult to explain. People may not hear it, but at least you’ve considered and made sure, as the administrator of the process, that you haven’t glossed over something. Thirdly, as Mr. Tachie and others in previous meetings have suggested, there appears to be some patterns here around gender, race or other categories wherein there need to be fulsome reasons given as to why it’s being dismissed. Simply saying “it’s dismissed” by a screening officer without giving genuine reasons can only breed suspicion in the larger community.
People sometimes describe that this is just an administrative function and they’re just weeding out inappropriate complaints. For the people who are making the complaints, they don’t see this as between something that’s adjudicative and administrative. For them, this is determinative. This is the end of the road. If people have a complaint, then surely they should at least be given a reason. It doesn’t have to be extensive reasons. If you actually read a case called Best —
Senator Dalphond: Sorry to interrupt, but isn’t that the purpose of the two amendments in the House of Commons, reasons to be provided —
Mr. Devlin: But they’re for the review committee and the review panel. They’re not for the screening stage. That comes later. If you’ve been dismissed at the earlier screening stage, you never get to those stages that are covered by the House of Commons amendments.
The Chair: Mr. Devlin, thank you for that response and Senator Dalphond for the question.
Senator Batters: Thank you. That sounds like a good amendment.
Professor Devlin, with respect to the late representation in this process, Minister Lametti admitted that feedback from public consultations revealed strong support for greater public participation by laypersons. To that end, he noted that:
The laypersons would participate in two stages; they would be members of review panels, charged with imposing sanctions for less serious misconduct, and they would also be members of full hearing panels which would hold public hearings and recommend to the Minister of Justice whether a judge should be removed from office in the most serious cases.
In your view, why is that insufficient? How can we increase lay representation, and what purpose would that serve?
Mr. Devlin: The minister is right. There’s lay participation at two stages. It’s a five-stage process. Why is it in two parts of the process and not in the other parts?
Certainly, one of the ones we have the most concern about is the reduced hearing panel. That’s a group of three people. It’s a member of the CJC, it’s a judge and it’s a lawyer. So the question is, why is there a lawyer there and not a layperson? Nothing has been said about the importance of having lawyers in this process, but suddenly we bring in a lawyer and not a layperson. At minimum, the lawyer should be replaced with a layperson.
I also think there should be lay representation on the appeal panel. It’s made up exclusively of five judges, three from the CJC and two Superior Court judges. Now, the argument might be that, at the appeal level, they only deal with questions of law, and therefore, it’s appropriate for judges. But actually, when you look at the relevant provisions that outline the powers of the appeal panel in clauses 134 and 131, their powers are more than just dealing with questions of law. They actually have a power to remake the decision. Essentially, again, the lay representation is shut out. It’s not like a regular appellate court. It’s actually got all power and authority to make all the decisions it wishes, and there’s no lay participation.
At those stages, there are at least two more stages where there can be lay representation on those bodies. Thirdly, with our comments about reconsideration, they don’t require lay participation in the screening process per se, but if there’s a request for reconsideration, our proposal is to have lay representation in dealing with those requests for reconsideration.
Senator Jaffer: I’m going to give my time to Senator Pate. Is that okay, chair?
The Chair: Absolutely.
Senator Pate: Really, what I’d like to hear is the response that you weren’t able to give to my last question.
Mr. Devlin: Right. This is following on Mr. Tachie’s point.
My sense is that a lot of this is also about information and education. I think the way into this is to actually have, as we’ve suggested, more comprehensive annual reports. But we also need leaders within the judiciary to — I think this did happen in the earlier reports, where the Chief Justice did reflect upon challenges. A good example of this is they talked about the challenges being generated by the increasing numbers of self‑represented litigants. That actually generated a process and protocol for judges in dealing with self-represented litigants.
I think we have precedents that if we have the information and the data, then we can find, on the basis of that data, that the Chief Justice and leaders in the judiciary can say that we recognize there are challenges here, and we recognize that there’s a lack of public confidence, whether from one community or another, we are identifying patterns here, and we will proactively take steps as the judiciary to step forward and try to be responsive to the concerns of the communities.
The way into it is you can’t do it in the legislation per se, or at least I can’t think of a way to do it, but if you have the data, then you can have the leadership from the judiciary to move this forward.
Senator Pate: Thank you.
The Chair: I think that concludes the second round, which means that brings this session of deliberations of the committee to an end. I want to extend my thanks to Mr. Tachie and Ms. Davis for their attendance once again with us by video conference and Professor Devlin as well for the work that you and the Canadian Association for Legal Ethics have done for us and the insights you have provided. I also want to take a moment to acknowledge a professor, Amy Salyzyn, the president of the Canadian Association for Legal Ethics, who attended and kept an eye on Professor Devlin to make sure he didn’t go astray. I also want to express appreciation for the Canadian Judicial Council who has led work on ethical principles for judges. They were the ones who led, as Professor Devlin identified, a richer consultation process. Thanks for their work.
That concludes our conversation here.
Senator Batters: Before we leave our consideration of Bill C-9 today, I want to propose something. We’ve had very helpful testimony from this witness when talking about potential amendments. He said he can try to work on that, and we had to say please do it tonight. Also, I’ve had a bit of work done by the Library of Parliament about this issue of what the provinces do for provincially appointed judges on sanctions dealing with particularly suspensions and docking of pay. There’s quite some interesting evidence on that, but even that memo won’t be available for translation until tomorrow sometime. With that, I would also personally like to hear potentially some evidence from maybe Ontario Judicial Council, maybe one of the smaller provinces, probably a province that has maybe updated their system within the last 50 years, unlike the federal system, because I think that’s an important part that I would like some evidentiary foundation before providing amendments on those things. In light of that, I would like to propose that instead of having clause-by-clause on this bill tomorrow, that we potentially have evidence on that and perhaps have clause-by-clause maybe in a week from now.
The Chair: Senator Patterson has raised the idea of having some specific discussion on the way forward with respect to Bill C-9. My suggestion is we do that, but subject to your views, because it’s your committee, my suggestion is we do some work on Bill C-28, try and bring closure to that, and then return to the path forward on Bill C-9. Subject to the amount of amendment we see to the draft report, my guess is we would have a decent amount of time for that discussion before we conclude today. Would that be acceptable? Senator Patterson, you were also seeking a discussion. Is there consensus that we proceed in that way, then? As a result, that will give Professor Devlin an extra hour to work up those amendments.
On that note, we should suspend for a moment to disengage with the witnesses. Thanks to all of you again for your presentations and your very rich dialogue with us. It’s very much appreciated.
The next item on our agenda today, colleagues, is the consideration of the draft report on Bill C-28, which is an unusual piece of work where we’re producing a report in relation to legislation that has already been passed and is in effect, as you’ll recall.
You will have received a new draft earlier this week. The last time we met, as you’ll recall, the committee went through the report paragraph by paragraph, and I think it’s fair to say, with those instructions, the analysts have responded, and our focus today, subject to your views otherwise, is that we would be attentive to the recommendations we might attach at the tail end of the report. Let me begin by asking whether it’s an acceptable way of proceeding to understand that the body of the report is satisfactory in its present form with, perhaps, the odd minor change in language that you might forward by e-mail. I saw a comma missing at one point, and I will pass that along. You may have a few of those, but otherwise we might, perhaps, move to the recommendations, if that’s acceptable.
I’m going to invite each of you to make some suggestions on that as we work our way through. Whoever would like to begin, I don’t know that you necessarily have to follow in the order of the recommendations, but I’m open to the comments you would like to make. I know secretly that Senator Dupuis had a couple of observations to contribute, and subject to others wanting to kick it off, could I invite comments from you, Senator Dupuis? I’m thinking first about the potential recommendation regarding a constitutional reference and also some of the other early recommendations in the draft.
[Translation]
Senator Dupuis: In fact, I had a comment concerning the French version, in the observations and recommendations in paragraph 84; I could make my comment when we get to paragraph 91, or I can do it now.
There’s also a comment that I have agreed to present: It’s from Senator Arnot, who agreed to replace me occasionally during this study. He wanted to move a recommendation that is currently under the “Parliamentary Review” section. He wants it to be moved much earlier, to make it an instruction to encourage the Minister of Justice to consider the possibility — I’ll tell you exactly where it is in the text, which was distributed by our clerk or will be soon — to move what is currently in paragraph 104, where the committee recommends that the parliamentary review should give due consideration to the possible merits of creating self-induced intoxication offences. He would thus like to move paragraph 104 to bring it just before paragraph 92 in the report. I don’t know if any colleagues would like to comment on that.
[English]
The Chair: That would be the recommendation, at least as things presently stand, number two, following the constitutional reference.
Mark Palmer, Clerk of the Committee: I think the idea was to move it to number two.
[Translation]
Senator Dupuis: The way the proposal was presented to me is that it is what is set out as a “parliamentary review” in the current paragraph 104, which reads as follows:
The committee also recommends that this parliamentary review should give due consideration to the possible merits of creating self-induced intoxication offences, including as laid out in the proposal by Professor Coughlan.
What I understand from Senator Arnot’s proposal is that he wants to remove the context of the parliamentary review from paragraph 104 and move it to the committee’s second recommendation and translate it in terms that suggest that it is the minister who will give due consideration to the possibility of creating that offence.
[English]
The Chair: That is what is being distributed now, I think, a slight change in the language and relocation of it in the report.
Senator Dupuis: Yes.
The Chair: Is there support among us for this adjustment and also the relocation of the recommendation made by Senator Arnot, essentially, through Senator Dupuis?
Senator Pate: I’ll certainly go with the will of the committee, because it’s already in there, but in the interests of ensuring that everything is on the record, when this was proposed, we went back to Professor Froc and to Professor Sheehy to ask for some advice on this. Their response was that:
Basically, this is the “drunk discount” that was mentioned in the Brown decision:
Perhaps the plainest demonstration that Parliament’s objective cannot be limited to the protective goal is found in the explanation, by the Minister, as to why the stand-alone offence was rejected as not meeting his goals. He accepted the view that the option of a new stand-alone offence of criminal intoxication would be inadequate. While it offers protection against extremely intoxicated violence, it fails to meet Parliament’s accountability objective in that the offender would not be held to answer for creating the risk of more serious underlying violent crime, with its more meaningful stigma and punishment. Even if found guilty of the new offence, the offender would not answer, by reason of their self-induced extreme intoxication, for the full extent of the harm in law, and would benefit from what the Minister described as a “drunkenness discount” (Standing Committee on Justice and Legal Affairs, April 6, 1995, at p. 6). He observed that “[t]he government believes that a person who becomes voluntarily intoxicated to the point of losing conscious control or awareness … should be held criminally accountable for that offence [i.e., the underlying assault] and for nothing less”, said the Minister in the House (Hansard, March 27, 1995, at pp. 11037-38).
So it was suggested that we not go along those lines.
Senator Batters: It’s interesting to hear the comments of Senator Pate on that, because I didn’t have that information before.
Initially, I was tending towards supporting this particular recommendation and the placement of it. It does, of course, just recommend that the Minister of Justice, in very short order, give due consideration to the possible merits. Maybe that’s the best way to get a very full discussion about that document, about that possibility, and whether that’s something that’s warranted or whether, for those reasons, a fuller accounting of it. I think that might be the best way to do it, perhaps.
Senator Dalphond: I agree with the last two comments, because that was an option that was considered but not at length, because the delays were so short and they were scared of the kind of no-law zone after the judgment of the Supreme Court. They wanted to plug the hole. This is an option they discarded because they thought it could not be. With mens rea, it’s 15 years, but if you are drunk and didn’t want to commit it but you committed it once you were drunk, you get 15 years. There is no mens rea. So you get seven years, five years, three years. That comes to a discount, and the lawyers will plea bargain using that option instead of going for the full risk. They say, “Let’s settle for that one.” And it’s easier for the Crown. You get plea bargaining. I think that was the concern that the minister has expressed, and also Professor Kent Roach from the University of Toronto. That’s also what he raised as a concern. To me, that’s why I was a bit reluctant to go as far as Senator Arnot wanted to go and say this is the solution. I think this is an option that has to be considered, and that was not considered at length at the time of fixing the problem.
I agree with the last comments of Senator Batters. It’s something that we should invite the government to consider. There might be good reasons not to do it — Senator Pate referred to two professors who had serious concerns about that option — but I think it’s worth being discussed.
[Translation]
Senator Dupuis: I believe the interest of Senator Arnot’s proposal is that it can be done now, while working on this issue, instead of waiting for the parliamentary review that will be conducted in a few years. It’s best for the issue to be considered at this time, as there is work to be done regardless. It is just as well that the work be done now, rather than waiting for an eventual parliamentary review.
[English]
The Chair: I support us calling for this work to be done. We were seeing, prior to Bill C-28, cases being thrown out. A number of you have brought that to our attention. That’s not surprising, because the legislation that was applicable to those accused was ruled unconstitutional. That is itself problematic.
If the present legislation is ineffective — here I’m not talking about constitutional but ineffective — in being able to achieve convictions — and we heard that from some very well-respected witnesses in the field of criminal law, for example, Professor Grant. Even the defence lawyer in Brown says the new legislation won’t get any convictions. You don’t usually hear that from defence counsel who are counselling to write a better law, basically. We will discover in a trial one day next October that we have got a law that doesn’t work here. I think it helps if we have a plan or the Government of Canada has a plan to deal with that eventuality if it arises.
Personally, based on my reading of the legislation, I worry a lot that the reach of harm is going to be very difficult for prosecutors to achieve. The attractiveness, at least, of the Coughlan amendment is it acknowledges the kind of drunkenness discount but builds gradations of seriousness based on the type of harm that you did, kind of like criminal negligence causing death or dangerous driving causing death. The different categories of consequence achieve different consequences of punishment. They may be labelled differently, but there will be something ready to put in place if the present law is unworkable. We don’t get to decide that question; the Department of Justice will. I do think we should be asking them to get on top of this in case this turns out to be a better or only option if what we have considered and approved last June doesn’t work.
Having made that pitch and acknowledging Senator Pate’s qualified endorsement of this, if I could put it that way, are we comfortable with adding in roughly this language as a recommendation in the report?
I don’t know whether raising your hand said make it number two or whether you wanted to speak.
Senator Pate: In light of the fact that this was only what Professor Coughlan — I would say self-induced or other intoxication offences. It leaves it more broad.
The Chair: Yes.
Senator Jaffer: Just a stylistic thing: We wouldn’t put the professor’s name there, right? It will be at the back. We haven’t done that throughout.
The Chair: It will appear in the appendix as his, but we could say “as proposed in Appendix D.”
Mr. Palmer: Or just leave it and have a footnote.
Senator Jaffer: It’s just that we haven’t used names otherwise.
The Chair: Would you be comfortable if we said “as set out in Appendix D”? We won’t refer to Professor Coughlan, but if somebody wants to know, they’ll find out where it came from. Agreed?
Senator Batters: In paragraph 100, it’s talking about the disaggregated data collection. The first point under that paragraph 100 does also talk about “outlined by Professor Coughlan” there.
The Chair: Which paragraph?
Senator Batters: It is paragraph 100.
[Translation]
Senator Dupuis: Can I ask you to repeat the wording that we accepted for the text from Senator Arnot? Was his text changed or not?
[English]
The Chair: The one that was distributed, I think we have made minor changes to it, but as much as anything, we have just anonymized Professor Coughlan and expanded the scope of the consideration of it, as Senator Pate has suggested.
[Translation]
Senator Dupuis: Can the wording be repeated, please?
[English]
The Chair: So it would read much the same: The committee recommends that the Minister of Justice, without further delay, give due consideration to the possible merits of creating self‑induced or other intoxication offences as proposed in Appendix D.
Satisfactory?
Senator Pate: I was more concerned that they’d only take his recommendation. It’s a new addition.
Senator Dalphond: It’s a change.
[Translation]
Senator Dupuis: Yes, it’s a new change. It’s the former paragraph 104, Senator Boisvenu. In the former paragraph 104, Senator Arnot proposed making a new recommendation giving the mandate to the minister. So, he made it recommendation number 2 — or, if you prefer, a new recommendation number 2.
[English]
The Chair: Senator Pate, you were expressing an objection to this language?
[Translation]
Senator Dupuis: He was making this recommendation to take it out of the clause. Recommendation number 6 deals with the parliamentary review, on page 24 of the bill. It’s paragraph 104. He moved it to recommendation number 2, after recommendation number 1, entitled Reference to the Supreme Court of Canada. He made it a recommendation that stood on its own, in which the minister is now mandated, instead of dealing with this issue in a parliamentary review.
[English]
The Chair: If I understand you correctly, we would contemplate that the slightly amended language of paragraph 104 become the second recommendation in the report.
Just to clarify the language, Senator Pate, did you have reservations about this phrasing?
Senator Pate: I was suggesting “or other” based on the fact that we had Professor Coughlan’s name in there, but with the suggestion that we make it a footnote. You know what I mean? I’m trying to broaden it so that it’s not just going to be a reference only to what he recommended and that there were other concerns raised by, as you mentioned, Professor Grant, Professor Sheehy and Professor Froc about what that might create and what the downside of that would be.
[Translation]
Senator Dupuis: In that case, can we leave the text as it is, but remove — So, it would read as follows in English:
[English]
“ . . . possible merits of creating self-induced intoxication offences” — period — with a footnote with references to all witnesses who discussed the merits, advantages and disadvantages of this type of —
The Chair: And you are comfortable with the drafters working up the footnotes and steering giving a thumbs up to it?
Senator Dupuis: Yes.
Senator Dalphond: I just want to understand. Do we keep the words “other intoxication offences” — no, we don’t need it? Okay.
[Translation]
Senator Dupuis: “Voluntary intoxication” would be mentioned, and a footnote would be added with the names of the witnesses who discussed this issue.
[English]
Senator Dalphond: I’ll go along with that. I’m agreeable, except that I won’t make it recommendation number two, especially because I have a presentation to make about recommendation number one. So that might become number one. Maybe that’s too much focus. It should be later on in the process —
The Chair: Can we leave it as number two until we return to number one? I don’t want to leave Senator Batters out.
Senator Dalphond: I think number one is too early in the process. It’s like those are the things we embrace. I think it should be lower down in the recommendations.
Senator Batters: Now that I have listened to it a second time, it makes a little more sense about the footnote and that sort of thing. I think that’s fine. It makes more sense to me as you were just describing it, Senator Dupuis. That’s good.
I just have to say that I think because we’re asking the Minister of Justice to do this right away, without further delay, it should be quite early. I don’t think it’s misplaced to have it fairly early in these recommendations because it is something that the minister is going to have to give consideration to very quickly.
The Chair: We could sort that out in terms of placement, but we now have a recommendation that has a marker as number two with support from Senator Batters and some reluctance on others. Let’s hold that in a state of suspension, recognizing that we want a logical flow to the recommendations.
Senator Jaffer: I’m making another suggestion of moving recommendation number five. It’s something for steering to consider. I think that should be number one, followed by consultation by the government. Because then it follows with the consultation.
The Chair: Would you then put the one we just discussed as the second one?
Senator Jaffer: The third one. That will be the third one, because this will be one, two and then the third.
The Chair: Subject to Senator Dalphond’s intervention regarding recommendation number one?
Senator Jaffer: Yes.
The Chair: Are you comfortable with that as a sequence? Thank you, Senator Jaffer.
Senator Jaffer: May I also just suggest that — maybe I’m being arrogant; forgive me. But is this in camera?
The Chair: It’s in public. So far, nothing you say ever seems arrogant, so don’t hesitate.
Senator Jaffer: I suggest we put our recommendations first and then say we concur, concur, concur. The reason is I say that is that human nature is such that you just read first, so I suggest we just put ours first and let the minister or whoever is reading it say they also concur with those — rather than putting those right in the centre.
The Chair: Concurring with the House recommendations —
Senator Jaffer: Yes. I suggest we put that at the end and put our recommendations first.
The Chair: That’s very helpful. Thank you for that. If that’s too bold and too strong, at least it’s endorsed by all of us so we’re all to blame.
Senator Batters: Properly sober second thought.
The Chair: Could we turn to recommendation number one? I want to invite Senator Dalphond to lead on that conversation.
Senator Dalphond: [Technical difficulties] with the steering last week when we got the draft. Recommendation number one says:
The committee recommends that the Government of Canada refer the question of the constitutionality of section 33.1 to the Supreme Court of Canada …
It struck me that we see at paragraph 8 of the same report — and I can invite you to go back to page 3 of the report, paragraph 8 — we wrote, summarizing the witnesses:
Generally speaking, witnesses’ main concerns were not about the constitutionality of section 33.1 or whether Bill C-28 was in keeping with the Supreme Court’s reasoning and proposed legislative solutions …
So we say this is not the constitutional issue and it’s in line with the Supreme Court teachings, and then we say to refer it to the Supreme court for constitutional. I think it’s contradictory.
But the second point I want to make is that it’s contradictory also to the gist of our report. Our report is to say that many witnesses said people don’t understand the provisions, and people don’t understand the state of the law now, and we need to do education. Senator Arnot even suggested we have specific subgroups targeted to youth, young adults, older adults and all that. I think the key is the education, research, collection of data and also the department considering other options and all that.
So now we come with this and say, “Let’s go to the Supreme Court.” At the same time, we say, “Let’s try to explain to the people what the provision means and how clear it is,” while we then say we’re going to the Supreme Court because it’s unclear or it’s unconstitutional. I think this will be difficult to explain to people. “Here’s the state of the law, but we challenge the state of the law.”
I think there is a good trend in our report to say that we’ll focus on education and try to get that out because this is what is missing and we are all in the dark, trying to fix problems without having enough factual support for it. We are going to fix it. It’s going to take some time, but we’re going to fix it eventually, I hope.
[Translation]
Senator Dupuis: When you proposed that I share my comments at the start of this part of our meeting, that is exactly the point I wanted to raise. I think it’s entirely inappropriate and irrelevant at this time to refer the issue to the Supreme Court of Canada, not to mention that, as you very rightfully pointed out, Senator Dalphond, there does not seem to be certainty about what is being put forward when discussing it in the rest of the report. Work must be done by the minister and consultations are needed. There’s a lot of work to be done and we certainly do not want to return before the Supreme Court of Canada if there is no need.
I would even say, if we want to be consistent with what we say and if we want in-depth consultation — If we start saying that it must go before the Supreme Court of Canada, the minister could say, “Bravo, we’ll go before the Supreme Court, it will take a few years, there’s no need to do anything else while we wait.”
[English]
Senator Pate: I don’t disagree with what I have just heard. The challenge is that we haven’t really — I’m not suggesting any changes to the report; I’m happy with the report — done a dive into the question of how we ended up here. It’s because it’s only the most privileged who can actually even mount this defence, and we heard evidence about that, and that it’s mostly in sexual assault cases.
We’ve just been talking about why we need to educate judges about those cases and the fact that, predominantly, these were defences developed as a way to help men escape responsibility for sexual violence and intimate partner violence. I’m not sure a reference to the Supreme Court of Canada would achieve that anyway, but if we’re going to focus on education, it would be good to strengthen that wherever we can, maybe by putting those references in the footnotes of the recommendations. That’s my only hesitancy. Right now, the Supreme Court is a little more attuned to that issue than maybe they have been in other times. They basically lobbed it back to Parliament and said, “You guys fix it.”
The Chair: If I may say, it would be slightly ironic to expect a dramatically different answer when it was one of the models that they recommended be developed. It’s hard to imagine a decision by the Supreme Court of Canada saying, “We recommended X; they did X; we now find it unconstitutional?” I’m not very hopeful that it would achieve very much.
Speaking for myself, my biggest concern is the inability of police and prosecutors to actually deliver effective convictions. For me, that’s the greatest vulnerability here. The Supreme Court won’t solve that in a reference because it will wrestle only with the constitutionality. They’re not the prosecutors. That’s really not their job.
The idea about the footnotes is a good point, and we can try to do that. If I understand it correctly, the recommendation from Senator Dalphond is to actually remove this recommendation, and I think Senator Dupuis says the same.
Other thoughts on the recommendation?
Senator D. Patterson: I’m hearing that there are some real doubts about the reference to the Supreme Court of Canada. The professor, Senator Dalphond, makes the case that, even in our report, there is a suggestion that that wasn’t raised very strongly by witnesses, if I understood that paragraph you quoted.
The Chair: My recollection — and Senator Dalphond has been closer to this point — is that Professor Roach recommended that but hardly anybody else did.
Senator D. Patterson: The other thing is, we’ve got six recommendations, and there are bullets in some of them. I like the idea of brevity when it comes to recommendations generally. If we could turn six into five, there’s agreement. I think it would make our report more effective. I’m kind of thinking about agreeing to remove that recommendation on the Supreme Court reference, from what I’ve heard.
The Chair: Can I ask whether there’s a consensus, then, to essentially delete paragraph 91 of the present draft and the description that calls for a reference to the Supreme Court of Canada?
Some Hon. Senators: Agreed.
Senator Pate: I’m prepared to live with that. I do think sometimes people don’t mention it because they don’t even think of the possibility of it. The fact that Professor Roach recommended it but we didn’t necessarily canvass it with others is an issue.
The flip side of this is that, even though they’ve lobbed it back to us, a reference allows for interveners to actually make some of the arguments that we’ve heard about how ineffective this is going to be in terms of the inability of Crown and police to actually provide the evidence. But I’m prepared to live with that, so.
Senator D. Patterson: We’ve got another recommendation for a reference to the Law Commission, which could solicit those viewpoints, which maybe is a bit of comfort. It almost seems we’re making a recommendation of two references. It might be stronger to have one to the Law Commission.
The Chair: I take it there’s sufficient agreement to call this a consensus to delete this recommendation?
Hon. Senators: Agreed.
The Chair: Are there other changes to the recommendations? We’ve received wise advice from Senator Jaffer on re‑sequencing them, and we’ll undertake that. Maybe we will provide a little richer footnoting in the recommendations, as Senator Pate suggested. We will delete recommendation number 1. Mr. Palmer is advising me on another point here. Other comments or suggestions?
Senator Jaffer: I am being very sort of hands on. I apologize. But you put this in the front, right, the recommendations?
Julian Walker, Analyst, Library of Parliament: Certainly, that is an option. The way the report is drafted, we have the sort of background and testimony, followed by the recommendations. We could move them to the front. Right now, you will see we’ve added an introduction because there was a lot of consensus on some of the points in the last meeting. There’s a bit of an introduction to the recommendations there. That might need to be rewritten if we were to put it sooner in the report, but certainly that’s an option.
Senator Jaffer: I don’t know about everybody else. Perhaps I’m lazy. I always first go to look at the recommendations before I say, “Oh, my god, what is this report? Let me see what they are suggesting.” I am just saying that most people I know do that. If we have it sort of inside, then we say, “One day I will read that,” and miss the recommendations.
The Chair: An option along those lines is to essentially write a paragraph or two about what we have been up to and call it an executive summary, and then crank out the recommendations, and then move into the report. For people who aren’t prepared to read however many pages, they get it right away. Would that be a suitable approach? Are you comfortable with that?
Senator D. Patterson: You could also put them in again at the end as well.
Senator Jaffer: Yes, both.
Senator D. Patterson: I think Senator Jaffer is right, and that’s what people look for first. Many committee reports do that. They lay them out so that people, if they only scan it, don’t miss the guts of it.
The Chair: We won’t write too much more if you’re comfortable with quite a generic introduction to this executive summary so that we can place these in there. We’re working a bit against the time constraint that the Senate gave us. I think there’s a consensus around that approach. Thank you, Senator Jaffer.
I’m hearing no other comments on other recommendations. I’m assuming that we are therefore comfortable with them, subject only to the re-sequencing, along the lines that Senator Jaffer suggested.
Senator Dalphond: It would be similar to our report on medical assistance in dying — short introduction, recommendations, then full report and recommendations at the end again.
The Chair: We need to have the committee make a decision on this more formally. The proposal is that the report, as amended, be adopted and that the Subcommittee on Agenda and Procedure be empowered to approve the final version of the report, taking into consideration this meeting’s discussions and with any necessary editorial, grammatical and translation changes required. If you have minor suggestions along those lines, please communicate them in the next couple of days. That will enable us to make the deadline that’s been asked of us. Also, that the chair be authorized to table the report in the Senate at the earliest opportunity once it’s been finalized. Is that agreed?
Hon. Senators: Agreed.
Senator Jaffer: Did you give us a deadline about when you want our suggestions?
The Chair: Let’s say we should have them by noon on Friday of this week, if you have other suggestions. If you want to rewrite the report, that would be a challenge, but if they’re modest, that would help.
I just want to say, myself, that I have read the report with some care. I thought it did an excellent job of pointing out the perspectives of the witnesses on a challenging legal topic. The team that did that work should be applauded for it. I wanted to extend those thanks.
Senator Jaffer: Again, in your executive summary, you will talk about the issue of what is extreme intoxication, so that —
The Chair: We might noodle the present introduction a little bit in order to set that up.
Could we turn, if we may, to consideration of how we proceed on Bill C-9? The first question is whether you want to do that in public or whether you would like to go in camera. The next steps with respect to Bill C-9, Senator Batters has suggested that we need additional witnesses in relation to how the provincial processes work and the like. I know there’s an expectation to move this in a timely way, and we have a lot lined up on our plate, so I’m anxious for us to take into account quality consideration of an important government bill, but at the same time, not lose time that will cost us in consideration of others.
Senator Boisvenu: You just said that in public.
The Chair: Did I say that? Should we stay in public or do you want to go in camera?
Senator Boisvenu: We should stay in public.
The Chair: I think that’s our pattern, so let’s continue. I will now, in public, repeat what I just said.
Are there any other comments on the topic of how to proceed with Bill C-9? Do you want to say a bit more, Senator Batters? You opened this up, and I sort of cut you off.
Senator Batters: That’s okay. No, you didn’t really cut me off. I think I said a fair bit of what I had to say earlier, especially when we heard the valuable testimony from Professor Devlin today about some possible areas of a very productive amendment that would make this bill stronger. It’s a bill that hasn’t been amended in 50 years, so I think we’re doing an excellent job in making sure it can be as strong a disciplinary regime for judges as it can be. We heard good recommendations today from Professor Devlin, including near the end of the questioning when he came up with additional areas that could have some solid amendment possibilities.
I was saying earlier that I would like to hear at least a couple of witnesses, I think, on provincial regimes, because they have, I’m assuming, amended their acts much more recently than 50 years ago. A number of them have, as Professor Devlin was stating, the ability to suspend judges with or without pay. I’ve also received a very valuable memo from the Library of Parliament analysts who have set this out, but it’s not available in a translated version, which, of course, is necessary to provide it to all the people on this committee, until probably sometime tomorrow.
We heard Professor Devlin talk about recommendations for amendments, and he said he will try to work on that, and we had to ask him to please do it tonight. That’s expecting quite a bit of a volunteer witness.
Certainly, we want to proceed in a timely way, but I was actually a bit surprised when I received the notice during the break when we were back in our home provinces that we would be going to clause-by-clause. It seemed fairly quick. I thought it would be helpful if we had a bit more time not just to properly digest the witness testimony we received today, but also this other information about provincial regimes, to properly have the best amendments and the best evidentiary foundation for those amendments before us. I would suggest perhaps instead of having clause-by-clause tomorrow on Bill C-9, that we delay it for maybe a week so that we have it perhaps next Thursday.
The Chair: I will invite Senator Dalphond, the sponsor of the bill, and perhaps others, on how this should unfold.
Senator Dalphond: I think we had some exchanges, maybe it was only among steering. Was it all the members of the committee?
An Hon. Senator: Only to steering.
Senator Dalphond: Only with steering — about inviting the Ontario Judicial Council or the — I don’t remember exactly the title. I said yes to that in the reply, but I said that assuming they are available and we are not postponing and there’s no-show.
If it is the will of the committee to hear from witnesses to try to compare with provincial — I think Ontario and Quebec are the biggest ones. Maybe British Columbia. The federal council is dealing with 1,200 judges, and there’s no equivalent across Canada. The biggest province in terms of provincial judges is Ontario, and maybe Quebec, which is close to Ontario, but that’s it. The other provinces, some have two or three judges, and some have 20. We are not dealing with the same type of structures that we are dealing with here.
[Translation]
Senator Boisvenu: I have the same concerns as my colleagues, as the testimony from the witness, Mr. Devlin, really left an impression on me. I’m not a specialist in criminal law or the judiciary, far from it. I’m primarily a specialist in victims’ rights. What he said about an imbalance between complainants and the judges concerned, about the lack of transparency or the lack of quality in reports —
That really concerns me. He was asked if the credibility of the process would improve with Bill C-9, and he replied no, or barely. I report his comments in a somewhat colourful way; I am very concerned about this because there is a great risk that in a few years, we will find ourselves in a situation where complainants will have no more credibility in the studies that are conducted on the behaviour of judges.
I would like to explore the idea of inviting certain witnesses who could propose possible solutions, because if we just approve this bill without any discussion and without the process being improved in terms of credibility, essentially, our time will have been wasted. Those are my comments.
Senator Dupuis: I must say that, since the start of the study of Bill C-9, one thing has struck me: the fact that, on the one hand, the issue of cutting costs has been put forward. I think it’s a very popular theme in recent years, but it’s far from the only consideration. We have tried to formulate it not indirectly, but in a piecemeal way thus far through our questions to witnesses.
What struck me from the witness we heard from today, Mr. Devlin, and the association he belongs to that looks at ethical issues, is that he highlighted the fact that efficiency and effectiveness are very good, and that it’s interesting to reduce the economic costs of a system or regime. But it is not only an expensive system; it is also profoundly unfair and, in some cases, discriminatory against several groups in society.
In that sense, I think my message is for the sponsor of the bill, who would certainly want to have a conversation with the Minister of Justice to have him consider the possibility of making his own amendments to his bill to ensure true transparency and true impartiality, and to provide the reasons why it was presented.
Nowhere is it accepted today that anyone has authority — administrative or otherwise — or the ability to decide on someone’s rights without providing reasons. This was thought to be a well-established principle of administrative law; clearly, it is not.
I am deeply convinced that judicial independence, a fundamental principle, must not be drawn out to the point of justifying impunity or discrimination. We often hear that complainants are not informed about the process or that they don’t take part in the process. It’s fine to talk about increasing public trust in the justice system, but I think we’ve heard very clearly that the system is lagging behind the expectations of lawyers, community groups, marginalized groups, women’s groups who are not marginalized, and women’s groups who are marginalized.
We’re no longer sure how to say it, in fact. I think it’s time to act. These testimonies must cause the government to reflect. It does not need to wait until amendments are made to propose them itself. I would invite it to consider that. I wish you courage, Senator Dalphond, and I encourage you to do so.
[English]
The Chair: Perhaps we can ask both Professor Devlin and Senator Dalphond to do some amendments tonight.
Senator Dalphond: Just to follow up one of the comments, and I think Senator Dupuis is referring to it, this series of amendments is not designed to bring efficiency or just to save costs. They are to prevent abuse of the system, including by those subject to the system. A former judge from Abitibi sat for about a year and a half on the bench. He was paid as a judge for over 10 years and was entitled to a pension because he sat for 10 years, but he didn’t hear cases because he was suspended by the Chief Justice of the Supreme Court. I wish we had time with Professor Devlin. He referred to suspensions, and Senator Batters referred to it. There are two kinds of suspensions. One kind means you don’t hear cases and you’re still paid, and another kind means you don’t hear cases and you’re not paid. That’s why I’d be interested to hear from Ontario, for example, and Quebec on that point.
The other issue is about transparency. I think a main objective of this bill is to have more transparency, because we don’t go to the council anymore where they will decide whether to confirm or not. They will hear all the arguments in written forums. All that is gone, and not that it wasn’t time-consuming but it was a transparent and open process. When there is a public hearing, it is always an open process.
Professor Devlin said he doesn’t like in the review process at the beginning that it might be dismissed and no reason is provided. He referred specifically to the review judge. I said I thought it was amended by Parliament. I know it’s not the major point in his presentation, but we sat together in the corridor and we found the provision, and it’s been amended. First, there is a screening by not a judge but by a public officer. The minute the complainant alleges sexual harassment, violation of a fundamental right, racial anything, you cannot dismiss it. It has to go to a review judge. The review judge, if they dismiss, has to send the complainant an explanation. That’s what was added in the House of Commons. Certainly the review judge, the first step, can dismiss it. They can pass it along to the review committee, and the review committee can dismiss. Both have to write back to the complainant and give reasons for it, except they cannot provide personal information. That’s the exception. But they have to say most other things. I think if he were still with us, he would agree that after further review of the amendments, that’s what it is.
This is not necessarily right for the complainant to ask for a reconsideration. There is also the provisions that the council complement the regulation of the process, and the process could provide an internal process review. If the complainant is not happy, he can ask for a review by the review committee or the judge, so not necessarily to amend the bill but to add observations that direct the council to do it. There might be ways to play with these concerns without necessarily reopening and going back.
I’m certainly not opposed to hearing from more witnesses if they are available, but if they are not available, that’s —
The Chair: If I can make a suggestion: I know there are a couple of other speakers, but we’re short of time in terms of the availability of the team supporting the meeting. Would it be acceptable for us to proceed with the suggestion that Senator Batters made, focusing at least on the complaint process in provincial jurisdictions, with a view that we try to identify witnesses for next Wednesday? We might have a dialogue on Wednesday about whether we are ready to move to clause by clause or whether we are anxious enough to explore other dimensions of this bill and at least contemplate additional witnesses but with a leaning towards clause by clause by next Thursday. Would that be an acceptable approach? It would give Senator Dalphond time to prepare additional arguments in support of the bill.
Senator Batters: I think that’s a good idea. I just wanted to say, thank you very much, Senator Dupuis, for your comments. I think that’s very valuable, and I do think Minister Lametti should look at this. There are even basic things like the diversity paragraph, the fact it starts out with “as far as possible.” There are senators trying to figure out the best way to amend that. We shouldn’t have to be looking at that. The minister and officials who do this drafting for a living should be checking that out.
I just wanted to note that in addition — pardon me? That’s good. I just wanted to very quickly note that as critic of the bill, I received a very helpful briefing from the Department of Justice officials. In addition to the whole issue of trying to prevent abuse, as Senator Dalphond was bringing up, when they have their headings for driving principles for reform of this bill, they list a number of principles, including judicial independence, accountability, fairness, cost and timeliness and transparency. So in addition to trying to prevent abuse, they are also trying to address the issues of efficiencies as well. Thank you.
The Chair: Could I just add a couple of suggestions to the process here? If you are contemplating amendments, you should turn your mind to amendments without waiting for next Wednesday. Assuming we can proceed to clause by clause on the Thursday, we should try to be ready and have those shared around. Secondly, it would mean we would cancel tomorrow morning’s committee meeting. We had planned clause by clause tomorrow, and we will not be in a position to do that. I think it is too early to have an expectation that we will have witnesses by 11:30 tomorrow. Is that an acceptable way to proceed?
[Translation]
Senator Boisvenu: I have a question for Senator Dalphond.
Did I understand correctly when the witness said earlier that the judge whose conduct is being assessed has a right of appeal, but not the complainant?
Senator Dalphond: There are two rights of appeal: the prosecutor and the judge. The prosecutor is the independent counsel responsible for the prosecution, somewhat like in a criminal case. The victim has no right to appeal the judgment. The Crown or the accused has a right of appeal. It’s the same thing here. The judge or the prosecutor.
Senator Boisvenu: Like in our justice system, the accused is represented by counsel, but not the complainant. That is in the public interest.
Senator Dalphond: As in the criminal information, the complainant follows the process. Then, a lawyer is appointed to take charge of the case.
Senator Boisvenu: However, if the complainant is not satisfied with the decision, but there is an agreement between the two lawyers, the victim has no right to participate. The victim cannot say that he disagrees. The victim is treated as in a criminal trial, he or she is —
Senator Dupuis: The victim is the Crown’s witness.
Senator Boisvenu: Exactly. There was talk earlier of an imbalance.
Senator Dalphond: It’s not necessarily an imbalance. In our arbitration system, or even our grievance system, it’s the employee’s union that pursues the employer for the grievance, but the employee is not authorized to appeal the adjudicator’s decision. Only the union or employer can do so.
Senator Boisvenu: The bill before us could be amended to give the victim a greater voice in a proceeding. There is a Canadian Victims Bill of Rights that deals with the right to participate, but everything can be done over the victims’ heads. This would be a good opportunity to give more power to the victims and prosecutors.
Senator Dalphond: I fully understand your concern. Has the House of Commons responded to it?
[English]
The Chair: We need to wrap up in one minute.
Senator Pate: Sure. I think I understand what you’re saying, Senator Boisvenu, but I think the difference here, and Professor Devlin alluded to it, is that some of the complaints that get thrown out now are often by people who are self-represented and who don’t understand that they can’t appeal a decision of the judge because they don’t like it. Those are the kinds that get thrown out. Having reasons for that up front would be useful. Knowing that’s why it was sent out would be useful as opposed to just an automatic appeal.
The Chair: If you think about the various professional organizations where somebody makes a complaint against a lawyer, of which there are many, sadly, a representative of the law society carries the complaint and the person becomes a witness. The richness of the voice is a matter of debate, but the model is not dissimilar to other models along those lines.
On that note, we had contemplated a meeting of the steering committee, but I think it’s unnecessary. We should see how we do with respect to finding witnesses for Bill C-9 for next week. If we need some further engagement, if it’s acceptable, we’ll engage at that point, if that’s okay.
On that note, I want to thank you all, and once again, an example of really terrific witnesses that we get to come out of their own generosity to help us with what we think is important work, and I think it is. For those listening, I just want to extend a further thanks to those who not just today, but throughout this process, have presented and fielded questions from us. Thanks to you all.
At this point, I’ll adjourn the meeting.
(The committee adjourned.)