THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
EVIDENCE
OTTAWA, Thursday, April 27, 2023
The Standing Senate Committee on Legal and Constitutional Affairs met with videoconference this day at 11:31 a.m. [ET] to consider Bill C-9, An Act to amend the Judges Act.
Senator Pierre-Hugues Boisvenu (Deputy Chair) in the chair.
[Translation]
The Deputy Chair: Welcome to the Standing Senate Committee on Legal and Constitutional Affairs.
Today we will continue our consideration of Bill C-9, An Act to amend the Judges Act.
Let me introduce myself: I am Senator Pierre-Hugues Boisvenu from Quebec, and I have the honour of replacing Senator Cotter, who is absent today.
I would now like to ask the senators to introduce themselves.
Senator Dalphond: Pierre Dalphond, senator from Quebec.
[English]
Senator Klyne: Good morning. Welcome to our witness. Marty Klyne, senator from Saskatchewan, Treaty 4 territory.
[Translation]
Senator Clement: Good day. Bernadette Clement from Ontario.
[English]
Senator Pate: Kim Pate, I live here on the unceded, unsurrendered territory of the Algonquin Anishinaabeg.
[Translation]
Senator Dupuis: Renée Dupuis, independent senator, senatorial division of The Laurentides, Quebec.
[English]
Senator Batters: Senator Denise Batters, Saskatchewan.
[Translation]
The Deputy Chair: Today we welcome a witness to speak to us about Bill C-9, An Act to amend the Judges Act.
We have with us via video conference, Alison Warner, Registrar of the Ontario Judicial Council.
Welcome, Ms. Warner. The floor is yours.
[English]
Alison Warner, Registrar, Ontario Judicial Council: Good morning and thank you for having me. On behalf of the Ontario Judicial Council, we are grateful for the invitation to appear before you today to provide information about Ontario’s judicial complaints process.
I submitted a supporting document to you with information about the provisions of the Courts of Justice Act that established the Ontario Judicial Council in 1995. This document also includes a detailed description of how Ontario’s judicial complaints process works.
This morning, I was hoping to discuss several more interesting aspects of the legislation that created the council. Please don’t hesitate to let me know if I’m speaking too quickly.
First, I wanted to highlight the extent to which the act ensures that the council’s members are representative of the community it serves. Of the 10 members of the council who have authority under the act to review, investigate and dispose of complaints against judges, 6 are not judges: Two are lawyers, and four are lay members.
Of these same 10 members, 5 are appointed by the Lieutenant Governor on the recommendation of the Attorney General, including the 4 lay members and the regional senior judge member of the council.
Regarding the selection of the four lay members who serve on the council, these positions are advertised by the Public Appointments Secretariat of the province of Ontario, and the Judicial Council has no role in the selection process.
Regarding the appointment of the two judges who are selected by the Chief Justice, the lawyer member selected by the Law Society of Ontario and the four lay members selected by the Attorney General, the act requires that Ontario’s linguistic duality, the diversity of its population and the need to ensure overall gender balance shall be recognized.
In addition, the act imposes a four-year term limit on the two judge members of the council selected by the Chief Justice, the lawyer member selected by the Law Society and the four lay members. This four-year term limit results in quite a high degree of turnover on a relatively small council, which helps to ensure that new and diverse perspectives are brought to bear in the judicial complaints process on an ongoing basis.
Next, I want to underscore that the provisions of the Courts of Justice Act require the judicial and non-judicial members of the council have equal representation in each level of the decision‑making process involving the investigation, consideration and disposition of complaints against provincial judges.
In Ontario’s complaints process, non-judicial members have an equivalent role to judicial members in determining the disposition of every complaint file that’s opened by the council, whether the complaint is disposed of summarily by a two-person complaint subcommittee, which is composed of a judge and a community member, or by a four-person review panel, which is composed of two judges, a lawyer member and a community member, or if the complaint is disposed of by a hearing panel which is similarly composed of two judges, a lawyer and a community member.
Of note is the fact that, in each of these stages, a lay member is involved in the deliberative process.
The third aspect of the legislation I thought may be of interest are the statutory provisions that impose referral and reporting obligations in situations where judicial misconduct on the part of a provincial judge is alleged. The act requires that if an allegation of misconduct against a provincial judge is made to another judge of the court, that other judge must refer the person to the Judicial Council. The act also requires that if an allegation of misconduct by a provincial judge is made to a member of the Judicial Council, then the allegation shall be treated as a complaint to the council.
This latter provision leaves no room for discretion where an allegation of inappropriate conduct by a judge is made to a member of the council, including if the allegation is made to the Chief Justice or the Associate Chief Justice.
These provisions arguably serve to enhance public confidence in the judiciary by reducing the potential for judicial misconduct allegations to be sort of swept under the rug, so to speak.
The fourth aspect of the legislation I wanted to mention are the suspension powers in the act. On page 5 of the supporting document, I’ve described the process of a complaint subcommittee and its power at the investigation stage of the complaints process to make an interim recommendation that a judge be suspended with pay or reassigned to a different court location, pending the disposition of a complaint. The act leaves it up to the regional senior judge to determine whether to accept or reject the complaint subcommittee’s recommendation, and the regional senior judge’s discretion is not subject to the direction and supervision of the Chief Justice.
The other suspension power provided for in the act applies at the disposition phase of the hearing process following a finding of judicial misconduct by a hearing panel. The act empowers a hearing panel to impose a range of dispositions, including a warning; a reprimand; an order for apologies; an order requiring the judge to take specified measures, such as education or counselling; or a recommendation to the Attorney General that the judge be removed from office.
In addition, the act authorizes a hearing panel to suspend a judge with pay for any period or to suspend the judge without pay but with benefits for up to 30 days.
There have been 11 past public hearings of the council in the 28-year history of the council, and hearing panels have twice imposed the disposition of a 30-day suspension without pay. No hearing panel has ever imposed a disposition that includes a term of suspension with pay.
Finally, if time permits, I was hoping to highlight the statutory reporting obligations that apply to the council, both in relation to the public and to the complainant.
The act requires the council to submit an annual report on its work to the Attorney General, which is then to be published on the council’s website. The act requires that the annual report include a summary of all complaints received or dealt with in the year, the findings and a statement of the disposition of the complaint. Unless a public hearing is ordered into a complaint, the case summaries must not identify the judge or the complainant.
The council includes detailed case summaries in its annual report of complaints that were disposed of in the year, and these case summaries include a detailed summary of the allegations found in the complainant’s complaint letter. They describe the investigative steps taken by the complaint subcommittee, including whether the subcommittee invited the judge to respond to the complaint and details of the response provided by the judge. The disposition imposed by either a complaint subcommittee or a review panel is noted.
If a complaint is referred to the Chief Justice, the details of any condition of the referral are described, including if the judge is required to engage in counselling, education or ordered to provide apologies. There are also details of the Chief Justice’s report to the review panel on the results of the referral, including the Chief Justice’s views on the remedial effects of the referral.
The annual report also includes statistics on the number of complaint files open and closed in the year and carried over from previous years, the types of dispositions imposed and the types of complaints that were received, such as whether they relate to criminal court, Family Court or out-of-court conduct.
Now, I may have gone over my time limit, so please feel free to interrupt me if I have. I could also provide a bit more information about the public reporting and the reporting to the complainant if there is time.
[Translation]
The Deputy Chair: Thank you very much, Ms. Warner.
I will recognize Senator Dalphond, who is the sponsor of the bill, and Senator Batters, who is the critic of the bill.
You will each have six minutes. I will give you a reminder one minute before your time is up.
Senator Dalphond: Thank you very much, Ms. Warner, for joining us this morning.
[English]
Unfortunately, we did not receive your document. Apparently, it’s in translation, but I believe the council uses both French and English for official purposes. I assume the document you sent to the clerk of the committee was also available in French. Is the annual report also available in French?
Ms. Warner: The document I sent you, I am afraid I had to prepare that rather hastily, as I was only invited to attend just late last week.
Senator Dalphond: I know.
Ms. Warner: I’m sorry that I didn’t have a chance to send that to translation. Our annual reports are provided in French, and I would be happy to have the document provided translated as well. As I say, I regret that I did not have time do that in advance.
Senator Dalphond: Regarding the annual report, could you expand a bit on the process? You’ve covered a lot of ground in your short presentation. Overall, how many complaints per year are filed?
Ms. Warner: We obviously get a number of complaints, for example, that may be about police or lawyers who are out of jurisdiction. So we maybe receive upwards of 200 letters or more a year, but many of those letters are not within the council’s jurisdiction.
In those situations, we write to the complainant and we redirect them to the appropriate complaint body. If the complaint pertains only to a judge’s decision and not conduct, again, we write to the complainant and we try to provide as helpful information as we can about where they can find legal resources that might assist them. We often refer them to the Canadian Judicial Council’s guides for self-represented litigants and resources such as that.
As for complaints that are clearly within jurisdiction, we would open approximately 30 complaint files a year that fall into that category.
Senator Dalphond: If I understand properly, there is a screening done either by you or by somebody else, and out of the 200 or 260 letters you receive per year, there would be about 30 that would proceed to the next level, yes?
Ms. Warner: Right. We don’t have an explicit screening power in the act, unlike the Canadian Judicial Council, but our procedures provide that where the complaint has nothing do with our role — if it’s a complaint about the police or the justice system — we don’t see that as a screening per se, although if there are any allegations that raise a matter of judicial conduct, even if it may seem rather frivolous, we will refer those to the council to consider.
Senator Dalphond: So do the 30 that are proceeded with include those that are frivolous?
Ms. Warner: That’s correct.
Senator Dalphond: At the end, what happens once they enter the system? Somebody will have to look at them and consider whether they are frivolous. How does it work?
Ms. Warner: The way it works presently is that a two-person complaint subcommittee, which is composed of one judge member and one lay member, reviews the complaint. If it pertains to a court proceeding, council staff will obtain any transcripts and audio. They will review that as a matter of preliminary screening, so to say. If they determine there is really nothing that would support the allegations, they have the authority to dismiss the complaint as frivolous or an abuse of process or out of jurisdiction if all the allegations are really about decision making and not about conduct.
I should also add that they must be unanimous. If one member feels there might be something here, they cannot summarily dismiss the complaint. It must be referred to the next level, which is the review panel. The review panel consists of four members — two judges, one lawyer and one lay member — and they will review the materials that were before the complaint subcommittee. They will also review a report that the complaint subcommittee prepares about their recommended disposition.
They can decide they want more investigation done, in which case they will direct the complaint subcommittee to conduct further investigation, and then the review panel will decide if the complaint should be dismissed, referred to the Chief Justice or if it should proceed to a public hearing.
Senator Dalphond: How many of the 30 will end up proceeding to a public hearing?
Ms. Warner: As I say, it is quite rare. What may happen is it could be ordered to a public hearing, but then what has happened in the past is when the judge receives notification of that, they may decide to retire or resign from the bench rather than face a public hearing. In the history of the council, there have been 11 public hearings. So it’s not a frequent event.
Senator Batters: Thank you, Ms. Warner, for being here. I really appreciate that, especially with the short notice. Having the provincial representation for this issue that I’ve been wondering about is something that I’ve wanted to have, so I really appreciate your perspective that you bring here.
One thing that I’ve been wondering about is since Justice Minister Lametti testified, I asked him about this, and then he passed the issue to his official about the possibility of a disciplinary sanction that would be suspending with or without pay. Minister Lametti’s official, Mr. Xavier, Senior Counsel from the Department of Justice, answered to say that:
The bar for judicial conduct is very high. The Supreme Court has made that very clear; judges really are expected to be a cut above in terms of how they conduct themselves, both inside and outside the courtroom. If you are talking about something so serious that a docking of pay is warranted, you are probably into the realm of removal.
That was their rationale as to why they didn’t include that in Bill C-9. But I wasn’t sure about that, so then when I asked for some research as to what the provinces do with provincially appointed judges — and, of course, when we’re looking at federally appointed judges, we’re remembering that that also includes, of course, the Court of King’s Bench level, which is the lower level of Federal Court appointments.
In Ontario, I noticed that your list of sanctions actually includes suspensions with or without pay, and you talked about that a little bit in your opening remarks. I think that’s been in place for quite some time, perhaps since 1994 or earlier. I’m just wondering if you are aware of the considerations that went into including those specific sanctions, and if so, why was suspension without pay ultimately included as a possibility?
And then I’m also wondering, with respect to the federal Department of Justice rationale for not including the docking of pay in this bill, even though it hasn’t been amended for 50 years — I’m wondering how you would respond to that. And I’m also wondering — obviously, you’ve seen situations where the docking of a judge’s pay would be an appropriate penalty. You allow it for up to 30 days, and 2 of those 11 panels that you have had have done that.
I’m wondering if you could give us some more information on that and comment on those questions.
Ms. Warner: Thank you, senator. Unfortunately, I’m not familiar with the Hansard in terms of the considerations that went into the rationale for including the suspension powers in the act, but what I can tell you is I did review the two hearing panel decisions where the panel decided to impose a 30-day suspension.
What the hearing panels in both cases were grappling with was serious misconduct, but on the other hand, the judges in both cases had exhibited remorse, insight, acknowledgement. They had filed many letters of support, not only from judges but from lawyers and members of the public. They had gone through some remedial training and ethical training.
In light of those mitigating factors, the panel was weighing whether it is a recommendation for removal or a 30-day suspension without pay. They felt that in light of, as I say, these mitigating factors, a recommendation for removal would be unwarranted, and they combined the suspension without pay with a couple of the lesser sanctions, for example, a reprimand and apologies in one case. They felt that that would serve as a sharp rebuke for the conduct, but it would, as I say, take into consideration these mitigating circumstances.
I don’t know why 30 days is the magical number, and I’m not suggesting that that’s necessarily the limit, but I could see the concern that you don’t want to get too close into removal territory, but at the same time there is a wide chasm between apologies, reprimand and removal. This helps to bridge that chasm, and you see these hearing panels finding that in those two situations.
Senator Batters: Great. I agree with you. That is a really huge chasm, as you put it.
Is it correct that it was 1994 that those types of sanctions went into place for Ontario? And as you were talking about the 11 panels and since your council was in place, how long ago was that?
Ms. Warner: The act came into force in February 1995, and there have not been any significant amendments to the legislation. There have been a few provisions added, but it has remained relatively unchanged throughout the 28-year history.
The two hearing panel decisions I was referring to were both in 2017.
Senator Batters: Quite recently, then.
Ms. Warner: So relatively recently, yes.
Senator Batters: Thank you.
I’m wondering if you have a brief additional comment about the lay people you have on your panels in Ontario as well. It sounded like you have them throughout the different processes; is that correct?
Ms. Warner: That’s correct. Yes. At each stage, including to be able to summarily dismiss a complaint, a community member has to agree with that disposition. And a lay member is involved throughout the process.
Senator Batters: Okay. Thank you very much.
Ms. Warner: I have to tell you that it’s quite an invaluable perspective in the deliberation process, and also having the lawyer member is quite helpful because they can report on what they’re seeing in courts elsewhere and give a perspective on whether the conduct is troubling to the profession. So both perspectives are helpful in the deliberative process.
Senator Batters: Absolutely. And I can say as a lawyer myself, certainly, we don’t always have the same perspective as the public, so that provides a valuable difference as well.
[Translation]
Senator Dupuis: Thank you, Ms. Warner, for your very succinct but detailed presentation. I’m not sure I understood the distinctions between the reasons for the review panel’s decision to send the complaint to a public hearing rather than to the Chief Justice. Can you clarify that nuance?
[English]
Ms. Warner: Yes. There are different criteria spelled out in the procedures that the council has adopted pursuant to its procedural rule-making authority under the act.
Essentially, the key difference would be that if there’s evidence before the review panel that could support a finding of judicial misconduct by a hearing panel — because at the review panel stage, the review panel is not evaluating credibility — then those matters should be referred to a hearing.
On the other hand, in terms of the referral to the Chief Justice, where there appears to be some merit to the complaint, where there is concern to the review panel but they feel it would be better addressed through a referral to the Chief Justice, they can include elements such as a requirement that the judge agree to participate in education or counselling; that they agree to provide apologies to those affected; and then the judge would also have to meet with the Chief Justice, whether it be before they engage in remedial measures or after or both. In some instances, the review panel requires first a meeting with the Chief Justice, then education, then a subsequent meeting with the Chief Justice.
So because the public hearing process is obviously a very expensive and time-consuming process, there could be good reason why this sort of lesser but still very serious and important and robust remedial disposition would be felt to be better suited to the circumstances by the review panel.
[Translation]
Senator Dupuis: You emphasized on a few occasions the value of having public representatives, who are not lawyers or judges, in this process. We’re trying to get the government to understand that the presence of the public representative is essential to ensure that these proceedings are representative, but also to improve public confidence in these proceedings.
In the time that the council has been in existence, since 1995, have you had the opportunity to conduct any studies or produce any documents that analyze or highlight what appears to be value-added to your system?
[English]
Ms. Warner: Unfortunately, we haven’t conducted any studies, at least that I’m aware of. I’m relatively new to the role. I joined the council in 2021. I can check back to make sure I’m correct about that and advise you if there have been any such studies.
To me, the touchstone of the role of the council is to ensure public confidence in the judiciary, so having public involvement in the consideration of complaints — I would ask why that wouldn’t be just seen as essential, because without that perspective — it’s so essential to have that feeding into the discussion. What you do see is just how much care public members bring to the process, the close attention they pay, and it’s nothing to be feared because, if anything, they bring this very important perspective, as I say, and I just think it feeds right into the whole purpose of the process.
I don’t know if that is helpful to your question.
[Translation]
Senator Dupuis: I have another question on the same topic.
In general, in the experience of the Ontario Judicial Council — because judges have had to live with this system since 1995 — do members of the judiciary feel that this is a process that works, and do they recognize the added value of having a public representative present?
[English]
Ms. Warner: No one likes to get letters from me — and, as I say, I’m relatively new in the role — but we do get good feedback in terms of judges who say, “Oh, I didn’t think of that when I was going about deciding how to handle this matter and I appreciate being informed that the complainant took it this way, and in the future I’ll go about handling this type of situation differently.”
It’s not so much that they know what role the community member played in deciding how the complaint would be dealt with, but I think it just reflects that, you know, if a judge has an open mind about the process and sees you can always do things better — that interchange which reflects the community involvement, I think, generally, judges like the fact that their conduct is held to high standards and that there’s this element of public confidence that results from the process.
Senator Klyne: As I understand it, if the Ontario Judicial Council finds that there has been misconduct by a judge, section 51.6(11) of the Ontario Courts of Justice Act grants it various powers, and you provided a very good overview of some of the processes available to it or provisions beyond removing a judge from office. These include reprimand the judge, suspend the judge with or without pay, order the judge to apologize, or take specific measures, such as receiving education or treatment, as a condition to sit as a judge.
I observed that these provisions in that act resemble section 102 of Bill C-9, and my two questions are as follows: Do you view the appeal mechanism under Bill C-9 as being streamlined, as it’s held out to be, and will it increase public confidence in the judiciary and the complaint process? As well, will the appeal mechanism under Bill C-9 be easily adopted within the complaints process, as you described it, of the Ontario Judicial Council?
Ms. Warner: I have to beg forgiveness, senator, because I haven’t really focused on Bill C-9 per se; I was more trying to get you information about our process. I did listen to Professor Devlin’s discussion about the appeal process, but I wouldn’t feel confident enough to weigh in on the effectiveness of it, I’m afraid.
In Ontario, if the judge takes issue with the outcome of a hearing, they could bring in an application for judicial review to the Divisional Court. As far as I’m aware, that has never happened. It has happened on the Justices of the Peace Review Council side that justices of the peace have sought judicial review of decisions of the council recommending a removal from office. But as far as I’m aware, it hasn’t happened on the Ontario Judicial Council side. But, yes, the statute doesn’t foreclose applications for judicial review, which I understand is one of the features of Bill C-9, but I could have that wrong. As I say, I don’t want to give you incorrect information.
Senator Klyne: That’s fine, and if your objective and mission were to provide us information on the complaints process and the provisions and so on and so forth, mission accomplished.
Ms. Warner: Thank you, senator.
Senator Pate: Thank you to our witness. It was very interesting to read through the report. Thank you for sending that.
I was curious as to whether, in fact, you have looked at providing a summary of recommendations, disaggregated data, some issues around the numbers of times that you get submissions? I notice there’s a great deal of detail in the summaries, but not a place that you can go to just find a quick review of all of that information and how the decisions are made, as well as the disaggregated data.
I’m curious whether you’ve looked at those particular issues and whether those kinds of changes might be made to the reports in the future.
Ms. Warner: I started to say, but I realized I was out of time, but there are statistics in the report on things such as the number of complaint files opened and closed in the year, how many were carried over from previous years, you know, the types of dispositions imposed, so whether they were referred to the Chief Justice, dismissed summarily or by a review panel.
There are no statistics on categories of allegations, so, for example, bias, discrimination, incivility, but that’s primarily because what you find in complaints is that typically complainants include multiple allegations, and so the raw numbers on that would be quite misleading if they were taken out of context. So rather than providing that type of statistical information, as I say, the case summaries do include details of the allegations. So, for example, the judge is alleged to have made discriminatory comments or was biased or rude, and then case summaries give insight as to whether the council found evidence that might substantiate those allegations. I don’t know if that answers your questions, senator.
Senator Pate: I was familiar with the information you did provide, so thank you for that, but I know the minister as well as others have been increasingly looking at the importance of disaggregated data, particularly when we’re talking, in this era of reconciliation, about addressing issues of racism, but also sexism.
As you know, there are oftentimes complaints or issues that get raised, but don’t get to the level of being seen as worthy of complaint. The fact that those right now are handled — as it seems from what you’ve said, and correct me please if I’ve misunderstood — by the Chief Justice, means they never really see the light of day in terms of a clear airing of potentially what could be patterns of behaviour that may be initially identified but then don’t come to the level of being seen as worthy of a full investigation, either until social mores change or until greater awareness arrives, and I think it would be useful to have that kind of disaggregated data as you go along. I’m curious whether there’s any interest in looking at that, whether it’s something that is being considered.
You mentioned one of the reasons why it might be challenging, but surely there would be a way of capturing that kind of information that doesn’t make it look inflated in the way that you’ve articulated.
Ms. Warner: I hope I haven’t misled. Even if the allegation is referred to the Chief Justice, it would still be spelled out in the report that, you know, for example, there was an allegation of racist treatment by a judge, or discriminatory treatment, so that would be reflected in the annual report. That is including if the complaint is summarily dismissed — it would also be in the annual report.
So, in terms of drawing statistics from that, yes, we could do it. I haven’t really turned my mind to address how that might be misleading because of the fact that complaints often have overlapping allegations, and also that it may turn out that the allegations were completely unsubstantiated, so you don’t want to create a false picture to the public that there have been 50 allegations of racist treatment, but then it turns out — so you could — I guess it’s just a bit of finessing there.
Senator Pate: I’m also thinking of how the public accesses it. I think it’s great — the moves that have been made in terms of attempts to be more comprehensive and transparent — but how would the public know that?
For instance, I was looking for how many times there have been these allegations. Many times have there been multiple allegations that, in the estimation of whoever was reviewing it, didn’t amount to sufficiently problematic behaviour to warrant a full hearing. But the accumulation, if it’s a repeat, if it’s the same judge over and over again — now, I recognize that in some areas where there are a lot of self-represented folks, you may see repeat areas where individuals don’t like the end result, so you see certain judges having a number of complaints. But I think it would be useful, in the interest of transparency, for the public to be able to access some of that information more readily.
Ms. Warner: The statute prohibits identifying the judge or the complainant, obviously, so you’d have to be careful around that piece. The way our council works is that they do consider prior disposition history of a judge when they’re considering complaints.
For example, the council would be made aware that the judge has previously been asked to respond to the council about a complaint received in the past so that that type of repetitive behaviour can be considered and dealt with by the council.
If you read the annual reports, you would see a summary of each and every complaint, including an indication of prior discipline history. The identifying information would need to be redacted unless it had gone to a public hearing.
Senator Pate: Thank you very much.
Senator Clement: Welcome Ms. Warner. Thank you for appearing today on short notice. I understand why you wouldn’t have had an opportunity to analyze Bill C-9 in comparison to the process that you have, but I may want you to go there if possible.
I have three issues that are of concern. I know the sponsor is listening, and committee members. They are around transparency, sexual misconduct and diversity.
I know you have extensive case summaries that you put out in your annual report regardless of whether the hearings were held in public or in private. Can you tell us why that transparency piece is important for you and whether there were any recent changes there? We know that, increasingly, the public wants access and there is mistrust in our public institutions. What have you done recently to respond to that?
Ms. Warner: By “a private hearing,” do you mean — there is a provision in the Courts of Justice Act for a hearing to be held in private. To my knowledge, I don’t know that that has ever happened. It would be up to the hearing panel to decide what could be reported in that respect, and it would turn on the circumstances. As I say, I’m not aware of this happening, but I just wanted to make that caveat.
In terms of transparency overall, for a number of years, the reports of the council have been, I would say, transparent in terms of having quite a lot of detail about the nature of the complaint, the steps taken to investigate it, whether the judge was asked to respond and the nature of the response provided. So, really, that hasn’t so much changed; it’s just a continuation of what was done under the registrar before me, Marilyn King. So I wouldn’t say that there have been changes in that regard.
Senator Clement: You’ve just always upheld that standard?
Ms. Warner: I don’t know how far back, to be honest, but at least in recent times, within the last decade, the case summaries have been very detailed, and you can find them on the website, so they’re available for the public.
Senator Clement: I may come back to that in a second round.
I want to ask you about sexual harassment and sexual misconduct. Bill C-9 uses the term “sexual harassment,” but I note that your act uses both “sexual harassment” and “sexual misconduct.” Can you explain why the use of those two terms? I’m particularly interested in your use of the term “sexual misconduct.”
Ms. Warner: Again, I’m not familiar with Hansard or why they use both terms, and what sort of different conduct they would capture. It’s a good question, senator. I guess it’s just better to be over-inclusive than under-inclusive. In the event that an argument was made that this wasn’t harassment, you can fall back on misconduct, potentially. I would think they would capture overlapping conduct, but I don’t see the harm in including both terms — unless I’m missing something, which is quite possible.
Senator Clement: I appreciate your response. Thank you.
In your comments, you spoke about diversity but also about gender balance. You use broader language there too. Can you speak to that? Bill C-9 has one reference to diversity, at least, but I have an issue with it. The language you use seems to be broader.
Ms. Warner: Again, I’m not familiar with the language. I know that in Bill C-9 there is the language of “to the extent possible,” whereas in the Courts of Justice Act, it’s “shall.” It’s a mandatory provision in terms of ensuring overall gender balance, as well as diversity considerations, and then reflecting Ontario’s linguistic duality. Those are the elements.
Beyond that, I think the mandatory language is helpful. It may not always be possible. If you have limited applicants to serve on the council as a lay member, you may not be able to give effect to that, but at least it’s there to guide the decision making. Hopefully, there would be robust application.
As I say, the council is not involved at all in vetting the applications, so I don’t have a window into that. The Ontario Public Appointments Secretariat takes care of that. Once the appointment is made, we are advised and we proceed to onboard the member. However, we have no role in the selection process of lay members or lawyer members.
Senator Clement: Do you know if there has been any trouble interpreting the language that you use around diversity? As you say, mandatory language helps guide, but has there been any issue?
Ms. Warner: For example, if the Attorney General were to select people who weren’t as representative as the statute provides, I don’t know how you’d go about enforcing it, to be quite honest. All you could do is flag it. Then, as I say, you might have the problem that they just didn’t have as many applicants.
One thing about being a lay member on the council is that it is a lot of work. I should add that council members are paid a per diem for their time. Some don’t claim it; they do it as a matter of public service. However, there is a lot of work involved, so that is a factor to consider if you’re considering recommending lay membership. Lay members do take it very seriously.
Senator Clement: Thank you.
[Translation]
The Deputy Chair: You will have understood that we have received the report. The clerk informs me that it is in the process of being translated and that is why you do not have the French version yet.
Senator Dalphond: I understand that we didn’t even get the unilingual English version; we haven’t received anything until now. That’s my understanding, unless I missed something.
The Deputy Chair: That was only to reassure our witness.
[English]
Senator Dalphond: I want to return to the last point that Senator Clement raised, which is an important point about diversity. I understand that the Ontario Judicial Council has nothing to do with the selection of the lay people. It goes to the Attorney General. It’s done by the government, essentially, contrary to the lawyers, who are appointed by the Law Society, or the judges, who are selected by the council.
I read the provisions of the act — section 49(4) — and it says, and I guess it’s directed to the government:
In the appointment of members under clauses . . . the importance of reflecting, in the composition of the Judicial Council as a whole, Ontario’s linguistic duality and the diversity of its population and ensuring overall gender balance shall be recognized.
So it’s an obligation to recognize that these are factors in the appointment. And as you said, it was not tested, and the council can do nothing about it.
Ms. Warner: I should add that this also applies to the selection by the Chief Justice of the two judge members who serve on the council, as well as the Law Society and their selection of a lawyer member — they also must give consideration to those factors.
So the Chief Justice must take it into consideration, as I say. And I suppose if there was a real concern — not that I’m suggesting there is — but if there were, the council could raise it with the Attorney General, but it hasn’t come to that.
But in terms of an enforcement mechanism, like a legal enforcement mechanism, I don’t believe you could have that.
Senator Dalphond: Thank you.
[Translation]
Senator Dupuis: I have two questions. The first is about statistics. As I understand it, the summaries of each of the decisions are sufficiently detailed. For example, if a law student were given the mandate to review all of the reports of the Ontario Judicial Council to develop a grid of the grounds of complaint, not necessarily quantitatively, but in terms of categories, would one be able to develop some sort of picture of about 20 years of the council’s experience in terms of the categories of complaints that have been filed, processed and upheld, or not?
[English]
Ms. Warner: That’s exactly right. I don’t like to sort of sound like I’m whining, but our staffing is quite small, so for us to do that, we simply don’t have the time. But it would definitely be open to an interested party to assemble that information by reading the past annual reports.
[Translation]
Senator Dupuis: My question was not a criticism of your organization’s practice. Rather, I wanted to verify... It’s that from the data you make public, the issue is to make it public and accessible to the public. Also, different audiences may be interested in it and may want to translate the results into terms that are recognizable, for example, in terms of discrimination or in terms of other complaints.
In terms of decisions and communicating decisions to complainants, is this done at each stage?
[English]
Ms. Warner: At the end of the process, a letter goes to the complainant to explain the disposition of the complaint and to provide reasons for the disposition, and the reasons are generally reflective of what you see in the annual report case summary. There may be somewhat more information provided because there’s no restriction in terms of the disposition letter against identifying the judge and the complainant, but it’s a fulsome accounting of what went into the investigation of the complaint and what the disposition imposed by the council was and the reasons for that.
Senator Dupuis: Thank you.
Senator Pate: Could you expand for us on some of the education information? I’m particularly interested in how the results of the disciplinary processes are used to inform improving continuing education for judges, and if you could give us some specific or concrete examples, that would be extremely helpful.
Ms. Warner: Thank you, senator. The council obviously has a good line of sight into the types of complaints that you’re seeing. For example, if you’re getting routine complaints from self-represented litigants who are concerned about Zoom proceedings and feeling like they’re not able to be heard, or somebody muted them or things like that, then that’s the type of thing — because the Associate Chief Justice, who serves on the council, is also in charge of education for the judges — the Associate Chief Justice can take back to the Education Secretariat and say, “We’re seeing patterns around controlling proceedings that involve self-represented litigants in this new Zoom world; we think the judges need some training on how that’s being perceived and how they might handle it better.”
So it’s a really good opportunity to sort of use the complaint process to inform the education.
Senator Pate: Are there any examples involving misogyny or racism you can point to where they may not have amounted to one where there’s a full investigation but they may have informed a particular type of training for judges?
Ms. Warner: The court does have a publicized education plan, which includes education in those areas, so I think there are obviously important areas that the court has identified. I guess if you saw a complaint that raised that type of issue, then you also have access to the types of remedial training that the judge might benefit from in terms of having already identified professors who have given lectures and counselling in the area. So there is that sort of crossover.
Senator Pate: Is there anywhere any of that is reported that we could follow?
Ms. Warner: There’s an education plan that is available on our website that describes the type of education that judges of the Ontario Court of Justice receive, and it gives a lot of detail about that education, the nature of the conferences they’re provided with and so on. As I say, it is on our website; it’s available to the public.
Senator Clement: I want to come back to the issue of diversity and lay appointments. The fact that your language is mandatory around diversity hasn’t been an issue. You’ve been able to proceed with complaints, right?
Ms. Warner: Yes. We haven’t had an issue of having enough lay representation on the council.
Senator Clement: Okay. And the mandatory language around diversity is what I meant. It hasn’t been a problem?
Ms. Warner: I guess because I don’t have a line of sight into what applications are received, I wouldn’t know if there are issues that, “Oh, we’re not seeing as many diverse candidates as we might like,” because I don’t know what the applicant pool looks like. But we have had a council that has been diverse. You’d always like to see even more diversity, but I would say it has not been a problem. It’s just that I don’t have a good line of sight into how that works on the government’s end.
Senator Clement: Understood. One last thing around lay appointments: Your process, it’s mandatory; there have to be lay appointments. Because when we look at Bill C-9, section 82, it says, “The Council shall establish a roster of lay persons who may be designated as members of a review panel . . . .” But in your case they have to be.
Ms. Warner: The statute requires that at each stage of the process there must be a lay member who is involved. So at the initial stage, the two-person complaint subcommittee, it’s a judge and a lay member; at the review panel stage, there’s a lay member, a lawyer member and two judges; and at the hearing panel, likewise, two judges, a lawyer and a lay member.
Senator Clement: So, it’s always “shall” and not “may.”
Ms. Warner: Correct. It doesn’t use “shall,” but that’s the composition.
Senator Clement: Thank you.
Senator Pate: I wanted to follow up in terms of whether there would be any way in terms of public transparency that we would know that education has been informed by any particular issue, whether it’s the Truth and Reconciliation Commission’s Calls to Action or the Missing and Murdered Indigenous Women and Girls Calls for Justice or a series of complaints against judges.
You gave an example of self-represented litigants. Would that be reported in any way so the public would see that kind of responsiveness of the judiciary?
Ms. Warner: That’s a good point, senator. I don’t think it is publicly reported that as a result of these complaints coming to light, new education has been offered. I think the answer is no; it’s not publicly reported.
Although, as I say, there is the public education plan that spells out the education, it doesn’t indicate the genesis of why this education is being provided.
[Translation]
The Deputy Chair: Ms. Warner, on behalf of the committee, I want to thank you for your testimony, which will be very helpful to us. This concludes the testimony on Bill C-9. The steering committee, which has been meeting or consulting this week, plans to do clause-by-clause consideration of the bill next Wednesday. In a few minutes, we will discuss our upcoming work.
[English]
Senator Batters: On Bill C-9, I wonder why we would go to a clause-by-clause consideration right away when we are potentially waiting for amendments from the Minister of Justice. There was some indication by Senator Dalphond, the sponsor of the bill, last week, when we were discussing this, that the minister was working on amendments.
Why don’t we wait until we have those amendments so that we can have a significant time to look at them and not just get them right before we’re going to clause by clause? I would say if it’s significant enough for the Minister of Justice to be drafting amendments, then I think we should just give that process some time to make sure that we can get them.
[Translation]
Senator Dalphond: I think there is a misunderstanding, because I do not have any information that the department is drafting amendments. I understood that some colleagues had asked to prepare proposed amendments, but as a sponsor, I was not advised that the department was working on a single amendment.
[English]
Senator Batters: It was through translation, but there was a misunderstanding. It was last week, when Senator Dupuis actually asked you the question and suggested to you, Senator Dalphond, that you should perhaps tell the Minister of Justice that he needs to amend the bill in some ways. You said, “Yes, that is being worked on.” Maybe you meant that it’s being worked on by us, but I certainly had the impression — I don’t know if others did — that it was the Minister of Justice and his department officials who were working on that.
[Translation]
Senator Dupuis: You will understand that I cannot speak for Senator Dalphond. I remember very well strongly suggesting to Senator Dalphond that he talk to the minister, if only to see if the substance of the testimony we heard led him to consider that there are amendments to be made to Bill C-9.
My question is for you, deputy chair. Can you tell me if the committee, since 2016, ever had a minister come back and testify after a study? My question is, in the ancient annals of this institution, could we find any precedents where a minister was asked to testify after the committee concluded a study?
The Deputy Chair: According to my memory and that of the clerk, yes, this has happened a few times.
Senator Dupuis: May I suggest that the steering committee initiate action to have the Minister of Justice appear again on this matter before our committee?
The Deputy Chair: Would the minister have to come next Wednesday?
Senator Dupuis: If we need to have the minister — we understand that a minister is very busy, and we are also quite busy — we would have enough flexibility as senators and as the Standing Senate Committee on Legal and Constitutional Affairs to adjust to the logistics of a minister’s schedule.
The Deputy Chair: If I understand correctly, you are proposing to invite the minister again. If he cannot come next Wednesday, it could be next Thursday, which would allow us to begin work on other bills next Wednesday. Have I decoded your proposal correctly?
Senator Dupuis: The committee has other bills to consider. We can adjust our work to the minister’s schedule so that he can come. I am not saying that if he does not come on Wednesday or Thursday, it is over. I want to see how we can adjust our schedule to the minister’s schedule.
The Deputy Chair: I understand the nuance.
[English]
Senator Batters: Absolutely, I agree with that suggestion. This bill has waited for a few years. This is the first revamp in 50 years, so let’s make sure we get it right.
Because it’s sometimes difficult to schedule in a different time frame than our normal committee time frames — because we have other committees, Senate sittings, other bills that we’re working on, other commitments and that sort of thing — it could even wait until the following week. I’m sure the minister would consider this a sort of a command performance that he would try to make time as available as possible for us. But I would prefer to wait for a regular committee slot rather than to try to schedule it at a different point during our proceedings.
[Translation]
The Deputy Chair: Is this the wish of all committee members? It seems to be the majority, if not unanimous. Senator Dalphond, you are the sponsor of the bill. We therefore take it for granted that the invitation will be extended to the minister as soon as possible. We’ll get back to you quickly on his schedule as to when that can be done — before June 21, if possible.
At this point, we can look at the bills coming up. There is Bill C-46, the government’s budget bill. Parts of it will be dealt with here in committee. So we have no choice, it’s a priority. There was a little mistake on the number — my apologies — it’s Bill C-47. Then there would be three other bills, Senator Batters’ Bill C-291, Senator Pate’s Bill S-212, which we have to conclude work on, Senator Pate’s Bill S-230 and Senator Carignan’s Bill S-231. For Bill C-291, I suggest —
Senator Dalphond: There is also Senator Boyer’s Bill S-250.
The Deputy Chair: I apologize, I didn’t have it on my list. So, if we can look at the next month without taking into account the two months left, Bill C-47 will take one or two sittings. That may take us into the May break.
When we return, I would suggest that we look at Bill C-291, because it was passed in the House of Commons, much like Bill C-233, which was given priority when it came here. That is customary for the committee when a bill is passed in the House of Commons. Then we could finish with Senator Pate’s Bill S-212. For the others, we can wait a little while; then we will be in early June.
Senator Dalphond: Let’s have the list again, please. We have Bill C-47, Bill C-291, Bill S-212, and who is sponsoring Bill C-291, Senator Batters?
The Deputy Chair: Yes. In essence, this would be the menu for May.
Senator Dalphond: Bill S-212, is that the bill that was introduced by Senator Pate, the one that we had started to study?
The Deputy Chair: Exactly.
Senator Dalphond: We haven’t started on Bill S-230. What is Bill S-231?
The Deputy Chair: It was tabled by Senator Carignan; Bill S-230 was tabled by Senator Pate, and there is also Bill S-250. Bill S-212 was tabled yesterday; we don’t know what will happen.
Senator Dalphond: It may eventually be referred to committee.
The Deputy Chair: I am told that there is also Bill S-238. It is a Victims Bill of Rights bill that would prohibit an offender from publishing pictures of his victims. It’s a relatively short bill.
Senator Dalphond: It is at second reading?
The Deputy Chair: Yes, it has been referred to our committee.
[English]
Senator Batters: Thank you very much for that listing, and I think that’s a very reasonable way to proceed. I was wondering if you had any information — because I didn’t hear it; I wasn’t in the chamber when it was read out — as to what parts of the budget implementation act are coming to this committee. I’m just wondering what the general subject matter is of those particular parts, if the clerk could let us know.
[Translation]
The Deputy Chair: What the clerk is telling me is that we’re going to be sending out the parts of the budget that we’re concerned about to all committee members quickly this afternoon. Then we can get a good idea of how long it will take to get through it. That’s our timeline.
Senator Dalphond: I was asking the question earlier to do the full list; I think the practice is to follow the order in which the bills go to committee. So there’s Senator Batters’ bill, for which she is the Senate sponsor, that just came in; I understand it’s a House bill.
With respect to Bill C-233, we skipped the line, if you will, because it was the same thing as Senator Boisvenu’s bill that we had just finished studying, so there was no need to reinvite the same witnesses on the same issues. That is why I think this is not necessarily the right example; it is a rather exceptional case.
That said, if the past practice was that House bills take precedence, I will respect that. However, I just wanted to inquire if that was really the usual practice.
[English]
Senator Batters: I may have missed a little bit of that intervention, Senator Dalphond, but Bill C-291, which I’m sponsoring, that has already passed the House of Commons and it’s in second reading still right now. I’ve spoken on it as the sponsor. Senator Busson is very supportive of that bill and has spoken on it. I understand that the critic of the bill from the Canadian Senators Group, Senator Rebecca Patterson, will be speaking quite soon, I think. So we’re hopeful that it will be in a position to come here quickly.
Senator Dalphond: It’s not on our list.
Senator Batters: No, because it hasn’t passed second reading.
Senator Dalphond: I was asking for a list of pending bills that were before us because I said also that I would like to know about the practice. I know that in the chamber we deal with S‑bills before C-bills. We do second reading of S-bills before we do second reading of C-bills. We do third reading of S-bills before we do third reading of C-bills. We have seen that for the two bills we passed two weeks ago after a month and a half of waiting.
So I was wondering if this is the practice that we jump the queue when they come to the committee, or they take the line after S-bills.
Senator Batters: No. I have been on this committee for 10 years, and, generally, when we have a bill that has already passed the House of Commons — and we’re getting not that many weeks from potentially the end of June — then there is a priority generally put on those types of bills to actually come before this committee so that they have a chance to become law.
Senator Dalphond: I remember my experience with the Rona Ambrose bill, and that’s not what my recollection is.
[Translation]
Senator Dupuis: May I suggest that the steering committee carefully review the list of bills that should be considered, based on practice, custom, and usage, keeping in mind that we like to follow traditions at the Legal and Constitutional Affairs Committee. Thank you.
The Deputy Chair: And with that, I wish you all a great weekend. The weather forecast is good until Friday evening. Unfortunately, Saturday and Sunday are supposed to be rainy; we’re kind of used to it. See you next week. Take care.
(The committee adjourned.)