THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
EVIDENCE
OTTAWA, Wednesday, May 10, 2023
The Standing Senate Committee on Legal and Constitutional Affairs met with videoconference this day at 4:20 p.m. [ET] to study Bill C-9, An Act to amend the Judges Act.
Senator Brent Cotter (Chair) in the chair.
[Translation]
The Chair: I will ask the senators to introduce themselves, starting on my right.
Senator Boisvenu: I’m Pierre-Hugues Boisvenu from Quebec.
[English]
Senator Tannas: Scott Tannas, Alberta.
Senator Jaffer: Mobina Jaffer, British Columbia.
[Translation]
Senator Dupuis: I’m Renée Dupuis, an independent senator representing the senatorial division of Laurentides, Quebec.
[English]
Senator Klyne: Marty Klyne, Saskatchewan, Treaty 4 territory.
[Translation]
Senator Gagné: I’m Raymonde Gagné from Manitoba.
Senator Dalphond: I’m Pierre J. Dalphond, an independent senator from Quebec.
Senator Clement: I’m Bernadette Clement from Ontario.
[English]
Senator D. Patterson: Dennis Patterson, Nunavut.
Senator Batters: Denise Batters, Saskatchewan.
Senator Simons: Paula Simons, Alberta, Treaty 6 territory.
The Chair: My name is Brent Cotter from Saskatchewan, and I am the Chair of the Legal and Constitutional Affairs Committee. Welcome to you all, and welcome to those watching online.
Senators, today we move to clause-by-clause consideration of Bill C-9, An Act to amend the Judges Act. Senators, in case we have technical questions, we have with us three officials from the Judicial Affairs Section of the Department of Justice Canada. They’re seated in the comfortable chairs at the back, but will join the table as needed. We have Toby Hoffmann, Director and General Counsel; Patrick Xavier, Senior Counsel; and Shakiba Azimi, Counsel. Welcome and thank you for joining us.
Before we begin, I’d like to remind senators of a few key points. If at any point, a senator is not clear where we are in the process, please ask for clarification. I want to ensure that, at all times, we have the same understanding of where we are as we work our way through clause-by-clause consideration of this bill. In terms of the mechanics of the process, I’ll remind senators that when more than one amendment is proposed to be moved in a particular clause, amendments should be proposed in order of the lines of a clause. Therefore, before we take up an amendment in the clause, I’ll be verifying whether any senators had intended to move an amendment earlier in that clause. I think Mark Palmer, Clerk of the Committee, and his colleagues have gotten us reasonably well organized to achieve all of this, but just in case, don’t hesitate to intervene. If senators do intend to move an earlier amendment, they’ll be given an opportunity to do so. If a senator is opposed to an entire clause, I would remind you that in committee the proper process is not to move a motion to delete the entire clause but rather to vote against the clause.
If committee members have questions about the process or the propriety of anything occurring, they can raise a point of order. As chair, I’ll listen to an argument and decide where there has been sufficient discussion of a matter or order to make a ruling.
Finally, I wish to remind honourable senators that if there is ever any uncertainty as to the results of a vote, the most effective route is to request a roll call. That vote will then clarify things. Senators are aware of that any tied vote negates the motion in question.
Are there questions about any of the above before we begin? If not, I think we can proceed.
Is it agreed that the committee proceed to clause-by-clause consideration of Bill C-9, An Act to amend the Judges Act?
Hon. Senators: Agreed.
The Chair: Shall the title stand postponed?
An Hon. Senator: Agreed.
The Chair: Shall clause 1 carry?
Shall clause 2 carry?
Shall clause 3 carry?
Shall clause 4 carry?
Shall clause 5 carry?
Shall clause 6 carry?
Shall clause 7 carry?
Shall clause 8 carry?
Shall clause 9 carry?
Shall clause 10 carry?
Shall clause 11 carry?
Shall clause 12 carry?
The first amendment is Senator Batters’ amendment that is initialled DB-C9-12-4-8 concerning laypersons.
Senator Batters: I move:
That Bill C-9 be amended in clause 12,
(a) on page 4, by replacing lines 8 and 9 with the following:
“for the purposes of this Division.”;
(b) on page 5, by replacing line 19 with the following:
“Council and one person from the roster of lay persons have reasonable grounds to believe that the pub-”;
(c) on page 10, by replacing lines 27 and 28 with the following:
“(c) a person named in the roster of lay persons.”;
(d) on page 15, by replacing lines 13 and 14 with the following:
“(a) two members of the Council;
(b) a judge named in the roster of judges;
(c) a person named in the roster of lay persons; and
(d) a lawyer of at least 10 years’ standing at the bar of any province.”.
This amendment was suggested by Professor Richard Devlin in his excellent testimony before a committee. He’s a professor of law at Dalhousie University. As he stated in his brief that he provided, dated April 24:
I am here as a member of the Board of the Canadian Association of Legal Ethics and because, in the last several years, I have co-edited two books which directly address the challenges and complexities of designing an appropriate complaints/discipline regime for judges.
The books are Regulating Judges and Disciplining Judges, and they bring together scholars from around the world to give their best wisdom on the topic.
A major part of his brief dealt with the need to have more laypersons involved in this judicial disciplinary process, and he stated:
There is insufficient lay representation in the process, thereby compromising the principles of impartiality, independence, and representation.
There is only representation at two stages of the process — they are one of three members of the review panel, and one of five members of the full hearing panel.
This is ad hoc and occasional.
Lay representation should be pervasive and structural.
He proposed that there should be lay representation on the reduced hearing panel. He suggested that that proposed subparagraph 110(1)(c) be revised to say, “a person named in the roster of laypersons.”
He further proposed that there should be lay representation on the appeal panel. He suggested that proposed section 130 be amended so that it included (a) two members of the council, (b) one judge named in the roster of judges, (c) one person named to the roster of laypersons, and (d) a lawyer of at least ten years’ standing of the bar of any province.
He also suggested there should be lay representation in the decision whether to go forward with an anonymous complaint and suggested that the proposed subsection 86(3) should be rewritten to say:
. . . only if two members of the Council and 1 layperson from the roster of laypersons have reasonable grounds . . .
So as I stated at this committee last week:
We’ve also heard repeatedly about the importance of a layperson at each stage of the process. Professor Richard Devlin stressed that, and the Ontario Judicial Council acknowledged the critical importance of that in their process.
Professor Devlin stated that the values of impartiality, independence and representation are compromised without sufficient lay representation.
And then I asked Ms. Warner of the Ontario Judicial Council about this at our committee recently. In our exchange, I said:
I’m wondering if you have a brief additional comment about the lay people you have on your panels in Ontario as well.
Because they, of course, deal with provincially appointed judges in Ontario.
It sounded like you have them throughout the different processes; is that correct?
And Ms. Warner answered:
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.
I said, “Okay. Thank you very much.” And she then went on to say:
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.
I said:
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.
When we had the Canadian Judicial Council representative in front of us recently, she said in response to that issue:
I would not think it’s necessary at every stage because you don’t see it anywhere else within an administrative tribunal, not at the screening stages, and not at others.
Referring to the Ontario Judicial Council, I responded:
They do have them at their other levels, which is much more akin to what this process is, rather than just comparing it to different administrative tribunals.
In that respect, certainly comparing a judicial council to an administrative tribunal — of course, judges hear very important cases dealing with the public, and it’s very important that the public feel like they are represented in these processes and that they have complete trust in these processes. I think that’s an important reason to involve lay people in the process at every stage, as has been suggested to us by substantial witnesses.
One more thing I want to add on this laypersons issue is that the shall/may issue that Senator Clement previously raised in regard to proposed section 82 is actually corrected with my amendment, happily. So that issue doesn’t exist anymore in that particular provision. Therefore, I would ask for your support.
Thank you.
Senator Dalphond: I thank Senator Batters for her proposal. I think it can be linked with the proposal or two she’s going to move later on about an appeal to the Federal Court of Appeal, and I’m going to explain why I say that.
The streamlined design that has been reflected in this bill has many stages. One is a kind of admnistrative stage — you just have a kind of screening process. Then you move to review committee. That review committee proceeds based on the complaints and the letter of explanations received from the judge. This review panel may decide that it is worth going to a full public hearing, because it’s a very serious issue and it believes that it should be dealt with in public. If the subject of the complaint — irrespective of if it is funded or not — appears serious enough that it could lead to the removal of the judge, it has to go to a full public hearing.
If it’s not something that leads to that — it might be dismissed, but it might also not be dismissed and some kind of intermediary sanctions might be imposed upon the judge. That judge, if he or she is unhappy with the sanction that has been imposed, enjoys one right — the one to appeal to a reduced hearing panel. It is made only of jurists because it’s meant to be an appeal provision to deal exactly with whether fairness and rules of natural justice have been complied with and whether it is a reasonable sanction compared to what was alleged. It’s not to hear facts. It’s a double-edged sword because if the judge goes there, this reduced hearing panel may conclude that, in fact, he deserves something stronger than what he got, and they will impose it. Or they may decide it’s something that should be brought to a public hearing. So this is part of the system. It’s a kind of appeal process in the system.
We move to the next thing because lay people are present where there are assessments of facts. Lay people are not present at the reduced hearing panels or at the appeal panels because these panels are designed to be legal institutions, to do work that is legal in nature.
I will go to the definition of the appeal panel. This is the last of the things she would like to replace. She would like to replace three members of the council and two judges named in the roster of judges and introduce lay people. However, I think this is exactly against what we’re trying to achieve here. The appeal panel is dealt with in proposed section 130 set out in the bill that you have before you. If you look at proposed section 131, what is the power of the appeal panel?
The appeal panel has all the powers vested in the court of appeal of the province in which the judge who is the subject of the complaint resides.
This is more or less a quasi-court of appeal. It’s designed to do what a court of appeal does — to review. On top of that, it has to sit in public, and this appeal panel is the ultimate legal judicial control in the system. There’s no appeal to the Federal Court. It’s a quasi-appeal court.
If you transform it and add lay people, you transform it into something different than a court of appeal. Then, from what I understand, she is proposing that we should then have a real appeal to the Federal Court of Appeal because that’s going to be an appeal before only a panel of judges. This is what we’re trying to avoid here. We are trying to create a more streamlined process, so the appeal panel is made of judges and lawyers because it’s more or less a court of appeal. The reduced hearing panel is exactly the same thing but the mini-thing. It’s not five members. It’s only three members who fulfill more or less the same functions to exercise a kind of judicial review of what the review committee has done.
I think this amendment is against the spirit of what we’re trying to achieve, and it leads to having to resort to the Federal Court of Appeal, as she’s proposing to do in later stages.
[Translation]
Senator Boisvenu: Senator Batters, if I understand correctly, what you are trying to do with your amendment is to add lay members. Is that right?
[English]
Senator Batters: There are already lay members in a couple of the processes that exist in Bill C-9. That’s new. They’ve never had that before. However, I want to, as has been suggested by a very prominent witness Richard Devlin, add lay people to the other processes because I think it adds additional transparency and additional public trust to the system. We’ve had issues with that in the past, and rather than having just judges judging judges and not even in real courts, I think this could add some very much needed public trust to the system.
[Translation]
Senator Boisvenu: From what I understand, under the bill as it now stands, lay members will only be involved in part of the process, whereas you think they should be present throughout the process.
Mr. Chair, I think that I will support my colleague’s proposal.
Senator Dupuis: I have a question for the Department of Justice representatives.
Thank you for being with us today.
My question is this: Could you explain what impact the proposed amendment would have on the rest of the bill?
Toby Hoffmann, Director and General Counsel, Judicial Affairs Section, Department of Justice Canada: Do you mean generally or are you referring to a specific issue?
Senator Dupuis: I mean both very generally and more specifically. We have here a bill that was prepared by the Department of Justice. There are public policy objectives and there are specific issues in Bill C-9, which is before us.
We have to examine amendments that add one, two, or three elements to the bill. I would think that those additions will have an impact, generally speaking.
What I am trying to understand is the logic that the Department of Justice or the government used in developing this procedure. I am bearing in mind that it was presented to us as the product of a consensus reached following negotiations between the Canadian Superior Courts Judges Association and the Canadian Judicial Council. However, we now know that such a consensus no longer exists because we were informed of that in a letter from the Canadian Superior Courts Judges Association.
Generally speaking, I am trying to understand what impact an amendment — even a completely legitimate one with the best of intentions — would have on a process like the one that is set out in Bill C-9.
More specifically, what will happen at every stage of the process where we add a layperson? In my opinion, that is a significant consideration.
Patrick Xavier, Senior Counsel, Judicial Affairs Section, Department of Justice Canada: You are quite right, senator. It is important to remember that laypeople are exactly that, people who don’t have specialized knowledge. What we are dealing with here is a legal process. The fact that these people are not experts helped inform the decision-making bodies that they are part of, with regard to the bill you have before you.
Generally speaking, there are three categories of questions that a decision-making body would be dealing with in a process like this one: questions of fact, questions of law and how to apply the law to the facts.
The contribution of laypeople is particularly important for questions in the first and third categories: questions of fact and how to apply the law to the facts.
[English]
For the reduced hearing panel, judges are not really expected to appeal the decision of the review panel simply because they are unhappy with it. It is important to appreciate that there is a big difference in procedure between the review panel and the reduced hearing panel. The reduced hearing panel will involve a full public hearing with a lawyer appointed on the other side to argue the case against the judge. So, really the big difference between them is the level of procedural fairness provided. That is likely to be a big factor in why a judge appeals.
So that second bundle of issues — questions of law, determining what the law is, determining how you provide procedural fairness — is expected to take on added importance at that stage. That is why it was thought it would be more useful for a reduced hearing panel if the third member was a lawyer rather than a layperson —
[Translation]
— a layperson who doesn’t have any legal training. That is even more important for the appeal committee.
[English]
It is important to remember that appeals will proceed on the record, under C-9. The Supreme Court has been very clear about how appellate bodies are to approach appeals on the record. Appellate bodies are not to touch findings of fact made by the first instance decision maker or how the first instance decision maker applied the law to the facts, unless the appellant body is of the view that the first instance decision maker made a palpable and overriding error. That’s a high bar. Practically speaking, appeals are about legal questions, questions of law — has the first instance decision maker made an error of law?
To put a layperson on the appeal panel really is problematic because laypersons have no background in law. It’s essentially asking a person to fulfill a role they are by definition not qualified to fulfill. Similar considerations apply to whether or not an anonymous complaint is valid. It is not whether an anonymous complaint is worth pursuing substantively speaking. The question is: Does this actual constitute a complaint within the counsel’s jurisdiction? It is very much a legal question.
Those who screen complaints for the council are lawyers. It is very much a legal question as to whether or not the complaint falls in within the counsel’s jurisdiction. That’s why laypersons are not involved at that stage. The fact that laypersons are not lawyers and by definition have no legal background was an important part of what informed determinations regarding which stages they should be involved in. They are present at the most important fact-finding stages, on the review panel and the full hearing panel.
Mr. Hoffmann: The whole purpose of bringing this legislation was to ensure efficiencies, to ensure a speedier process. Having people that are not legally trained on some of these panels, as Senator Batters suggested, may indeed adversely affect that in the sense that they would have to become apprised of the law and apply the law when, as Mr. Xavier said, they are not legally trained. I don’t mean that to be demeaning at all. That’s the fact. They are not legally trained, and when legal thresholds have to be applied, they will not know how to do that.
Senator Simons: I wanted to invite Senator Batters to respond because I have come to this party late. Your amendment made considerable sense to me. Now that I have heard from the officials, I would like to hear your response to that.
[Translation]
Senator Dupuis: Excuse me, Mr. Chair. I just want to make sure that the usual procedure of giving each senator a turn will be followed here today.
I think Senator Batters can answer any questions she wants to answer when she has her second turn. I would like to know whether we will be following the usual procedure of giving a turn to every person who signalled their interest in speaking to the clerk.
[English]
The Chair: Could I answer that question?
I think we will try for that and not engage in a series of bilateral conversations which tends to be the risk here. Except for adding yourself on the second round, Senator Simons was the last person who signalled interest in speaking. If she can be more fully informed by posing a question to Senator Batters, I think that should be respected. I confess I was on the verge of asking a question myself of Senator Batters and Senator Dalphond. Perhaps I will.
Senator Batters: First of all, I just want to comment, I’m a lawyer myself, but I certainly recognize that lay people have a very valuable role to play in these types of processes. Lawyers don’t know everything and shouldn’t think we know everything, especially in processes like this where the public is so impacted. Judges are the ones deciding all kinds of cases — criminal cases, family law cases, corporate cases, all these types of things. To think that only lawyers and judges can have smart viewpoints on the process, I don’t think it is the right way to go, especially on issues like this, disciplinary procedures. We have seen many very visible cases over the years that have generated considerable news coverage where perhaps it would have been a valuable thing to include lay people on the different parts and obviously the department thought that it was valuable. That was the product of consensus because they have included them in two parts of the process, just not the other ones.
We received considerable evidence from Professor Devlin, who was an excellent witness here. He has considered this subject with much deliberation over the years and has been writing books about it. These are types of things even law professors think should happen.
I also think it’s important when we are considering Bill C-9 to remember that this is the third time the federal government has tried to proceed with this bill in the last few years. Consultations by the federal government on this bill with the provinces, with the other provincial governments, were done dating as far back as 2016, and many provincial governments that have changed during that time. Certainly, this bill is there for the most part; there are many good parts of this bill. I’m simply trying to make it a bit better, which is what our goal should be. Again, because this bill has been a work-in-progress for quite a few years, the consultations that took place with judges may also have evolved since the time that the consultations were initially done. We also saw through the evidence that we received that the public consultation actually seemed to be very minimal, like only 74 responses to an online survey out of the millions of people who live in Canada.
Really, the Judges Act’s disciplinary process has not been revised for decades. I think when we are going to do it, like a large bill like this does, we should do it right.
Senator Simons: As a layperson on this committee, I’m very persuaded that lawyers don’t know everything. I’m not one. The argument of having lay people as adjudicators of fact is a very strong one.
Do you have a specific response to the concern that at the appeal level, where the issue is not a question of fact but an issue of an interpretation of law, a layperson might be out of their depth?
Senator Batters: If Professor Devlin isn’t concerned about those types of things — and he has studied it to a greater degree than I have, and he is a very accomplished law professor in that respect — I don’t have that concern. Lay people are trained on all types of panels for many different things. They recognize the limitations, but they also provide a valuable perspective, even if they don’t have the legal nuance. Frankly, just because you have a lawyer on a panel doesn’t mean it is a lawyer with perspective on the particular type of law that might be considered. Maybe they are a corporate lawyer and have never practised criminal law in their life, yet they’re dealing with these types of things.
Senator Simons: I assume the lay people are not just chosen off the street like jurors.
Senator Batters: No, certainly not.
The Chair: I want to thank Senator Batters for consolidating, in a skilful way, what I would call the layperson’s amendments to this bill. I think that is helpful. However, it seems to invite a mixed bag of layperson presence here. I would be interested in hearing from Senator Dalphond, the sponsor, about the argument as to why we should not have laypersons at the initial screening process. I accept the advice of the officials, but it is not that hard to figure out that the complaint is against a provincial court judge or that it is actually a complaint that you lost the case and you should have won. Those are pretty basic concepts. I’m interested in understanding why we wouldn’t be open to a layperson being a participant at that point in the process.
At the other end of the process — and here I invite Senator Batters, as proponent of the amendment, to speak more about the point that Senator Dalphond raised — we empower the appeal panels with the authority of a court of appeal but all the courts of appeal in the country are made up of judges. If you have an issue, for example, with respect to a complaint against lawyers, that ultimately goes to a panel of judges, not lay people or the like. There is a certain attractiveness in the democratization of decision making, but courts of appeal are intentionally given a lot of expertise. I think Senator Dalphond is worried that if you put lay people on the appeal panel, you then need to layer on one more judge-only appeal panel, and the whole concept of the bill was the other way around.
I think it would be fair for the proponent of the bill and also Senator Batters to comment on this observation, if that is acceptable.
There are two review mechanisms in the bill, Senator Dalphond. There is the full one and then the reduced panel. They seem to be doing more or less the same job and one can be triggered by the judge. On one we have a layperson; on the other we don’t. Trying to examine this bill in a fair way, that seems a bit mysterious to me. Could you respond to those two thoughts generated by Senator Batters’ amendment about the presence or the absence of laypersons in the screening exercise, reduced hearing panel and full panel? Then I invite Senator Batters to talk about the court of appeal issue.
Senator Dalphond: Thank you, chair. I know there are a lot of steps here to understand. You need a road map to understand it properly if you’re not a jurist, and even jurists need a road map. I use it myself to understand everything.
Let’s go back to the point that there is no guarantee that a lawyer will be specialized in administrative law, judicial review and issues of conduct. The lawyer is appointed by the council, and the council will not appoint somebody who is not familiar with issues of professional conduct, including the conduct of judges. It might be Professor Devlin if he is a member of the bar. I’m sure he is qualified to opine about the conduct of judges. However, it will not be a lawyer doing commercial law. It says that the lawyer must have at least 10 years of standing at the bar in any province. We’re asking for people with experience.
There are no lay people at the appeal level. It’s only puisne judges or chief justices. It’s three chief justices and two puisne judges coming from two different sources: one from the council and one from the association. If we look at the reduced hearing panel, it is a member of the council, which means a chief justice; a judge named by the roster of judges, so a puisne judge that has been nominated by the association; and a lawyer of with a minimum of 10 years of practice appointed by the council.
We have only jurists at the reduced hearing and at the full hearing panel. Reduced hearing decisions can be appealed to the full appeal panel. Even at the reduced hearing, there is a very formalized process because a lawyer would be appointed to put forward the case on behalf of the system. This lawyer is similar to a Crown attorney.
The process involves lay people at the evaluation of what is proper conduct and what is a proper intermediate sanction. It also involves lay people in determining what happened — let’s find the facts. Is it deserving of revocation or discipline of the judge? If so, we will move for a revocation of the judge. Lay people are involved at two important stages. The first question you ask is: Why aren’t there any lay people at the stage of the examiner? The process at the very beginning is meant to be very administrative and with no discretion. It’s only to look at whether or not it is part of the mandate of the council. This will be done by a screening officer. For example, if harassment has been alleged, it has to go to the examiner — the examiner has to review it because there is an allegation of harassment. The examiner has to make a decision about whether it looks frivolous, but they don’t go into merit. The judge is not even asked to comment at this stage. It is only after the screening officers or the examiner have decided there was a valid complaint that it moves to the review committee, and then the judge is informed and asked to provide his own version of the story.
If I have said something improper, I invite the officials to correct me. They wrote the bill. I have read it, so I may have misread some things they said, or I may have forgotten something they wrote.
The Chair: Fair enough. I might invite them if there were some fundamental foundational oversight, but my impression at this point is there isn’t. Thank you, Senator Dalphond.
Senator Batters, could you respond a bit to the court of appeal question? At a certain point, we tend to rely on judges to apply the powers that the court of appeal has. You are inviting a layperson into that. I understand that this is a bit unusual.
Senator Batters: First, dealing with the court of appeal level, as Senator Dalphond said before, yes, one of my later amendments is — as the Canadian Bar Association president testified about — to allow the Federal Court of Appeal to have a role in this process. Otherwise, as Bill C-9 currently exists, the only actually court that would hear one of these cases would be the Supreme Court of Canada, if they decided to grant leave, and as we have heard, that is a very rare case. The Supreme Court of Canada has to consider whether something is in the national interest, not just simply whether they think a decision was made incorrectly, in order for them to be able to hear such a thing. That’s why I have — with the substantial weight of the Canadian Bar Association president and that large lawyers’ organization and the Advocates’ Society as well — made one of my later amendments.
If you’re uncomfortable about the fact that there may be a layperson on something what could be potentially something dealing with law again, you could consider that if it is very important to only have lawyers and judges dealing with these types of matters, we would only have lawyers and judges on this committee. I think that people who are not lawyers and judges provide a very valuable perspective to this committee.
I don’t think there’s any difference here. As Senator Dalphond said, of course, people constituting the particular judicial council and their panels for these matters would be making sure that those appointed from the rosters were appropriate people to have on there. They would also be ensuring that the laypeople that they had in their roster would be appropriate people who would receive necessary training and provide that perspective.
That is something, actually, even about the reduced hearing panel. Having the reduced hearing panel, you’ll only have judges on it. Professor Devlin talked about that and said, right off, that it would compromise the principles of impartiality, independence, representativeness and transparency.
He also raised the concern that the proposed section 115 of the act suggests that reduced hearing panels might not be public. He said, as a consequence, a judge could potentially choose to avoid any lay engagement at that stage of the process and have it in private.
The Chair: I feel like you’re answering the question I posed to Senator Dalphond, which is helpful for us, but I’m sorry, I’m going to interrupt you there and invite further comments.
[Translation]
Senator Boisvenu: I read a document published by the Department of Justice in 2016 on the possibilities for further reform of the federal judicial discipline process. I found the arguments set out in that document to be very interesting. They support Senator Batters’ proposed amendment. That document indicates that the presence of laypeople throughout the process ensures that public opinion is taken into account.
It also indicated that the presence of laypeople prevents self‑regulation. When there is self-regulation within an organization, it means that there is also a lack of transparency.
It is also interesting to note that the presence of laypeople provides a neutral opinion. When legal experts are self‑regulating, then often their opinions are not neutral.
What is interesting about Senator Batters’ amendment is the idea of establishing a level of confidence in the justice system that we desperately need in 2023. Having laypeople involved throughout the process, rather than only in certain parts, would help meet the objective of transparency and restore credibility when judges are being tried for misconduct.
[English]
The Chair: I’m going to invite Senator Dupuis. If there are new observations, I might invite additional comments from senators, but, if not, and you’re comfortable, we might move to a vote on the amendment, following Senator Dupuis.
[Translation]
Senator Dupuis: I have another question for the Department of Justice representatives.
If I understood correctly, clause 88 on the screening officer provides that, and I quote:
The Council may designate as a screening officer one or more persons, including a judge, who meets the criteria specified by the Council.
Does that mean that the screening officer could be a layperson?
Mr. Xavier: It will be up to the council to decide exactly who the screening officer can be. The screening officer has always been a legal expert, a lawyer. To date, the screening officer has been the executive director of the council. It is possible that the executive director may want to delegate that function to a lawyer, but it has always been a lawyer. If there is a complaint filed with the council, that is really a legal matter.
Senator Dupuis: I understand your position about it being a legal matter. That is not my question. When I read clause 88, could I not interpret it as meaning that the council can designate one or more people, notably, but not necessarily, a judge, who meets the criteria established by the council to act as a screening officer?
Mr. Xavier: It would be up to the council to decide what criteria to use.
Senator Dupuis: Yes, but the logical interpretation of the clause as it is now written would not exclude laypeople.
Mr. Xavier: No, it would not exclude a layperson.
Senator Dupuis: Okay, so we have to make a distinction between the usual practice and what should or could be done under the interpretation of clause 88.
Mr. Xavier: Yes, you are right. It is up to the council to decide.
Senator Dupuis: Thank you very much.
My next question is for you, Senator Batters. I see an amendment that affects a number of provisions, paragraphs (a), (b), (c) and (d). Have you thought about proposing a separate amendment for each paragraph? In other words, have you thought about moving one amendment for paragraph (a), one for paragraph (b), one for paragraph (c) and one for paragraph (d)?
Can I ask you a second question now that you can answer later, or would you prefer to answer that one first?
In your amendment, in paragraph (d), you are substituting the current wording of Bill C-9 with the following: “(a) two members of the Council; (b) a judge named in the roster of judges...” That is three judges. You are also adding the following:
(c) a person named in the roster of lay persons; and
(d) a lawyer of at least 10 years’ standing at the bar of any province.
If I understand correctly, you are adding two people. Is that right? In the last part of your amendment, in paragraphs (c) and (d), rather than having two members of the council and a judge, are you adding not just a lay person but also a lawyer? Are there two additions there, contrary to paragraphs (a), (b) and (c)? I am trying to understand your amendment.
[English]
The Chair: Can I just offer a comment on the last factual point? I think Senator Batters’ intention here is to actually reduce the number of judges already in the list by one each in that category, and then add the two people using paragraphs (c) and (d) that are proposed in the amendment. Is that right?
Senator Batters: My amendment actually directly corresponds to exactly what Professor Devlin suggested, and that was the exact change that he suggested on that particular one. I was explaining that change when I set out the parts of his brief and how he testified about the appeal panel. Yes, he suggested that, on that one, it should be replaced by two members of the council, one judge named in the roster of judges, and one person named in the roster of laypersons and a lawyer of at least ten years’ standing at the bar of any province.
Your first question asked me whether I considered having each of those processes dealt with in a separate amendment. No, I didn’t actually consider that. As I stated when I was explaining my amendment initially, I was modelling it after the very helpful testimony that Professor Devlin gave us. He provided each of those different components. The only part of his proposal that I didn’t include was the part about the request by a complainant for reconsideration of a decision to screen out a complaint, that they have lay representation on that, because that wasn’t going forward as an amendment.
I wanted to make it as easy to understand as possible. Rather than having multiple amendments that would deal with this, I thought that it was basically something that is comprehensive and possible to do all in one amendment, rather than dividing it up and making it more complicated.
This was something he prepared. He put considerable thought into it, as you may remember. When he testified, many of us were quite impressed with his testimony. We asked him to please work on some amendments that very night because we might potentially be going to clause-by-clause the next day. He worked on things and provided us with this information. My amendment is very much inspired by his considerable years of work on this issue and the proposals that he gave to us. That’s why this is based on that.
Senator D. Patterson: I’d like to ask a question of our officials.
It’s on the point of lay people’s abilities to examine “questions of law.” I look at the bill, and I see that the grounds for removing a judge from office are a lack of public confidence in impartiality, integrity and independence. Proposed section 80 mentions grounds like infirmity and misconduct and talks about the judge being “in a position that a reasonable, fair-minded and informed observer would consider to be incompatible with the due execution of judicial office.”
All these words, “infirmity,” “misconduct” and the reference to a “reasonable, fair-minded and informed observer,” seem to speak to concepts that are very much in the ken of the average fair-minded, reasonable person. They don’t seem to be sophisticated, nuanced legal issues such as you find in the criminal law with respect to intent, mens rea and the like.
Would you agree that the legal issues, the questions of law, that this layperson may be required to opine on, in keeping with Senator Batters’ amendment, are actually less sophisticated, less complex and less nuanced than the average question of law as they involve concepts that every fair-minded person would understand, such as integrity, independence and impartiality? Are there questions of law that may be more appropriate for a layperson when you’re talking about discipline?
Mr. Xavier: Possibly, but much of what you just discussed, senator, would be engaged at the fact-finding level. Is there integrity? Does the judge have a kind of disability that prevents them from carrying out their functions? A lot of that would involve findings of fact and applying the law to the facts.
Legal issues can be issues involving procedural matters, constitutional challenges to specific provisions and specific aspects of the process. In a past conduct process, for example, section 63(1) of the Judges Act, which allows an attorney general to complain to the council, was constitutionally challenged. The very ability of the council to consider the disability of a judge was also the subject of a constitutional challenge.
Those are the kinds of legal issues that can arise in discipline proceedings and would be looked at more closely by an appeal court. Anything that is constitutional would be looked at more closely by an appeal court and by the appeal body in this instance.
A lot of what you described would go to the level of the findings of fact, which is precisely why lay people are involved on a full hearing panel and on the review panel where those questions are very much in play.
Senator Clement: I want to continue along the same line, and I’m going to rely on my experience as a lawyer here, which can be a good thing or a bad thing at times.
When I appear in front of the Workplace Safety and Insurance Appeals Tribunal — I’m using an administrative law example — when they have three-person panels, the chair is a lawyer, and the employer community is represented, and the employee or union perspective is represented. In my experience, they are triers of fact, but they also render decisions that deal with the law. It’s considered quite a good tribunal in Ontario, quite an expert tribunal. It has an excellent reputation. I don’t always agree with their decisions, whenever I have lost, but I will say they are a good tribunal.
The lay people on those panels have training, they have encadrement, as we say in French, and they have support. I would say the quality of those decisions is good.
Is it not possible to have lay people of that quality and calibre, who have training, sit alongside lawyers and bring that perspective, which will not affect the quality of the decision that you’re going to get?
Mr. Xavier: You can absolutely involve lay people and end up with high-quality decisions. But in that example, for instance, the decision can then be appealed; it can be appealed up the chain to an expert appellate body composed of judges.
This goes back to the point Senator Dalphond was making earlier. The appellate level provided for in Bill C-9 is designed to be as similar as possible to an intermediate court of appeal, precisely so that we don’t have to lengthen the process and make it more expensive by introducing yet another intermediate level of appeal in the form of, for example, the Federal Court of Appeal, after the appellate level. Judges get the equivalent of a trial at first instance before the full hearing panel if removal is at issue. Then they get an intermediate court of appeal, which is essentially the appeal panel, and then there is appeal with leave to the Supreme Court of Canada. That mirrors what complainants get on the other side when they apply for judicial review of the council. They go to the Federal Court; if they’re not happy there, they go to the Federal Court of Appeal; then there is the possibility of appeal with leave to the Supreme Court.
At some point, there does need to be a review by an appellate body that functions very much like an intermediate appellate court, which is open, public, holds oral hearings and so forth. That’s very much what the appellate level is designed to be in this bill.
The Chair: Senator Dalphond, maybe a brief observation or two, and then we’ll invite consideration of the amendment.
Senator Dalphond: First, I have a question for the officials, and then I have an observation or two.
My question is in connection to clause 9 of the bill, which proposes to amend section 62 of the Judges Act. The proposed text says:
The Council may engage the services of any persons that it considers necessary for carrying out its objects and duties, and also the services of counsel to assist the Council in the processes and proceedings under Part IV.
Part IV is the conduct review process.
Why did you add this? Is it to specifically authorize the council to hire lawyers and to have legal counsel to process the matter, the screening and all these things?
Mr. Xavier: It’s lawyers to conduct things possibly like screening. It’s also to possibly cover the need for an investigator in order to investigate. It could allow a review panel, for example, to acquire more information about a complaint. It’s possible that if a complaint, for example, involved some sort of complex tax situation, the council or one of its decision making bodies may need to retain an expert in accounting, for example. It’s to ensure that the council and its bodies can retain expertise that they may not have in-house to deal with particular issues that they’re facing.
Senator Dalphond: Thank you, Mr. Xavier. Now I will go to my two observations.
The Chair: I want to give you, if I may, Senator Dalphond, the last word, since you’re the sponsor of the bill, but Senator Batters had a brief observation.
Senator Batters: I was thinking that perhaps this is also in case there is a need to hire experts, or something like that, in determining the judge’s conduct in a particular matter. You may need subject matter expertise that wouldn’t be available in the normal course. Could that be the kind of thing that would also be allowed in that section?
Mr. Xavier: Any retaining of experts that might be required, yes.
Senator Dalphond: I agree with what Senator Patterson and Senator Clement said. I think that’s why we have, on the specialized tribunals, people who represent groups and representation, but maybe we should not confuse the steps.
[Translation]
Senator Clement referred to an administrative process where, when one of the parties is not satisfied, whether it be the employer or employee, they can go before the Ontario Divisional Court to request a judicial review that will be held before three judges.
Senator Batters is proposing taking away one of the judges and replacing them with a lay person to conduct the review.
The purpose of this bill is to ensure that this review is conducted only by judges, as in the Divisional Court of the Ontario Superior Court of Justice. That is why the level of appeal set out in the act involves three chief justices and two puisne judges.
It is to reflect the same structure that we have in the Divisional Court when it comes to specialized decision makers. The specialized decision makers here are the review panel and the public hearing panel.
[English]
The Chair: I’m going to exercise the prerogative of chair and anticipate that a roll-call vote is needed here. Is there any objection to that judgment on my part?
It’s moved by the Honourable Senator Batters that Bill C-9 be amended on clause 12. May I dispense with the reading of all of it? Thank you.
Is it your pleasure, honourable senators, to adopt the motion in amendment?
An Hon. Senator: Agreed.
An Hon. Senator: No.
Mark Palmer, Clerk of the Committee: The Honourable Senator Cotter?
Senator Cotter: Abstain.
Mr. Palmer: The Honourable Senator Batters?
Senator Batters: Yes.
Mr. Palmer: The Honourable Senator Boisvenu?
Senator Boisvenu: Yes.
Mr. Palmer: The Honourable Senator Clement?
Senator Clement: Yes.
Mr. Palmer: The Honourable Senator Dalphond?
Senator Dalphond: No.
Mr. Palmer: The Honourable Senator Dupuis?
Senator Dupuis: No.
Mr. Palmer: The Honourable Senator Gagné?
Senator Gagné: No.
Mr. Palmer: The Honourable Senator Jaffer?
Senator Jaffer: Yes.
Mr. Palmer: The Honourable Senator Klyne?
Senator Klyne: No.
Mr. Palmer: The Honourable Senator Patterson?
Senator D. Patterson: Yes.
Mr. Palmer: The Honourable Senator Plett?
Senator Plett: Yes.
Mr. Palmer: The Honourable Senator Simons?
Senator Simons: Yes.
Mr. Palmer: The Honourable Senator Tannas?
Senator Tannas: Yes.
Mr. Palmer: Yes, eight; no, four; abstentions, one.
The Chair: The motion is carried.
We’ll continue with consideration of clause 12, which takes us in the sequence that I think has been identified to Senator Clement’s amendment, C9-12-5-1.
Senator Clement: As the chair indicated, this is BC‑C912-5-1. I move:
That Bill C-9 be amended in clause 12, on page 5, by replacing line 1 with the following:
“84 The Council shall name persons”.
I call this the “as far as possible” amendment. Proposed section 84 in Bill C-9 starts off with “as far as possible,” and the point is to remove that and to have a clean clause that says, “The Council shall name persons who reflect the diversity of the Canadian population to the roster of judges and to the roster of lay persons.”
Now, I can agree that “as far as possible” is used regularly in legislation; in fact, I was provided with some examples of that. There is the Accessible Canada Act, which uses, “to the extent possible.” That legislation has a list of criteria in regard to appointing directors, so when they use it, they’re using it in the context of needing to appoint a majority of directors who are persons with disabilities and directors who are representative of the diversity of Canadian society.
Another example is the National Housing Strategy Act, where “as far as possible” is used. There, again, is a list of criteria to apply in choosing members of the council, such as choosing members who are from vulnerable groups, who have a lived experience of housing need and who reflect diversity.
So one could argue that when you have a list of criteria, you might need qualifying language like “to the extent possible” or “as far as possible.” But with proposed section 84, we have clear language. It doesn’t need that kind of qualifier.
I want to refer to the Ontario context, because we did have the Ontario Judicial Council appear as witnesses. The Ontario Courts of Justice Act contains a section that speaks of diversity, which is subsection 49(4). That speaks to the diversity of the judicial council — or the composition of that council — and the language in that section states:
. . . 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.
There is no qualifying language in that subsection. In fact, I asked Alison Warner, the registrar of the Ontario Judicial Council, how she viewed that subsection and if it had been an issue for them in the interpretation of that. I will just quote from her testimony from April 27:
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.
On the issue of diversity, this is a time when Canadian society is really grappling with reflecting diversity in all the places. We worry about increasing diversity. We also celebrate the fact that we have made gains in that area. I think the language “as far as possible” in a clause entitled “diversity” doesn’t send the right message. Why should we be using limiting or pejorative terms? We must be clear in our intent and recognize that it will not paralyze the system to say, “shall reflect diversity.”
There are people who will be able to fill these positions. When you look at the 2016 census data, you can see that there has already been such an increase in diversity in almost every part of this country, so to say that we still need the qualifier and that it will be too difficult to reflect diversity just doesn’t feel appropriate at this particular time in Canadian history.
This clause isn’t going to solve systemic racism, but clear directive language is more in keeping with where we are in 2023 and beyond.
Thank you, Mr. Chair.
Senator Klyne: I have a question for Senator Clement on the amendment.
I know when we first heard this it was kind of a head-scratcher regarding what “as far as possible” means. After some reflection, I took it to mean that I’m going to walk to the top of Mount Everest as far as possible but overall, my objective and goal is to get there. On the way there, certain things have been happening, and you don’t get what you want to do, but you went as far as possible. So I kind of rationalized it in that term.
When you took out “as far as possible” just now, and I read this again, now I’m focusing on reflecting the diversity of the Canadian population. When you think about it, Canada is one of the most diverse countries in the world. You have provided references to other uses of something similar to “as far as possible.” I like that idea, but when you think about that, are we talking about diversity of the Canadian population, meaning does it mean by region, gender, ethnicity, profession or education? How are we going to measure this? It begs the question of how you will define that.
Senator Clement: I’m not sure, Mr. Chair, if you want me to respond.
The Chair: I think it would be helpful.
Senator Clement: Thank you, Senator Klyne, for the question. I’m going to refer to Alison Warner, the Registrar for the Ontario Judicial Council, where she talked about a guiding principle. There is no way that we are going to be able to get this exactly right because how are we defining diversity? What she is saying is that it is a guiding principle. She is not saying in the act that she uses, which doesn’t have any qualifier, that this has been an issue. She is calling it a guiding principle. I think we should view this section in the same way.
Senator Klyne: I won’t be able to get a comment on “exactly right”, hence that might be why “as far as possible” works.
Senator Clement: No. Leaving us with latitude means that we are going to strive, and we are going to discover the fact that there is diversity already there. It is there. I have a book in my bag of Black judges. It is a book, not a thin little manuscript, so it is already there. I don’t think this is something that is not going to be achievable. I’m not saying there isn’t systemic racism within the legal profession and that we don’t have a ways to go in terms of having diversity reflected on the bench. In terms of finding laypersons and judges and having people who reflect diversity, I don’t think that is an impossible thing that is going to paralyze this process.
Senator Batters: Thank you very much. Thank you for bringing this amendment forward, Senator Clement. I’ve supported the need for this wording change in this section of Bill C-9 since you very smartly brought it to our attention weeks ago in questioning a witness in the Bill C-9 hearings that we held. Commenting on what Senator Klyne just said, this actually shouldn’t be Mount Everest, especially in Canada.
Perhaps this wording has been used at times in different acts in Canada but probably not too often dealing with people and not dealing with diverse people. I think this is not good drafting generally — it is not clear — especially because, as I have often pointed out when I’ve been questioning witnesses about this particular point, perhaps the roster of judges isn’t as diverse in Canada as we would like it to be right now, but the diversity section also refers to the roster of laypersons.
As I pointed out to a few witnesses, not being able to achieve a diverse roster of laypersons, when basically our entire population over the age of 18 in Canada is eligible to become part of that roster, is not realistic. I think these wording changes are very much necessary. You are going about it the proper way, and I support it. I think this change is backed up by many witnesses we heard from who don’t think “as far as possible” is necessary wording. You’ve suggested a change in a clear way, and I support it. Thank you.
Senator Simons: I cannot help but be reminded about the famous anecdote about the CBC Radio host Peter Gzowski who one summer held a competition for the best ending to the saying, “as Canadian as . . . .” There is the saying, “as American as apple pie,” so what is it for being Canadian? The winning answer was: “As Canadian as possible under the circumstances.”
It is a problem if we do not set ourselves a target with sufficient ambition. The words “as possible” are very weaselly words to put in a piece of legislation. As Senator Klyne rightly points out, diversity in this country is not just ethnocultural. It includes physical disability, gender, gender identity, gender expression, regional diversity and age diversity. Even if your panellists are three White guys, I bet you can find a diverse panel of three White guys if you try hard enough.
I counted up the numbers the other day as we swore in Senator Petten, and I realized that the current numbers in the Senate are 48 female senators and 42 male senators. That happened because of the deliberate choice to diversify appointments. I think we have demonstrated in our own body that if you actually put your mind to it, you can reflect the reality of this country quite neatly.
[Translation]
Senator Dupuis: My question is for the Department of Justice representatives. When the Ontario commissioner, Ms. Warner, testified before our committee, she referred to the same provision of the Ontario law that Senator Clement quoted earlier.
I think that the wording that is used, where it refers to the importance of reflecting a number of things, is recognized, and in that case three elements must be reflected.
In the English version, it says —
[English]
“shall be recognized.”
[Translation]
It is clear. I understand that the federal and provincial contexts may change and we have to bear all that in mind. My question is this. According to what the witness told us, decades of application have proven the effectiveness of this section of the act, which has never been challenged. Obviously the importance of “shall be recognized” is recognized. It has been applied for a long time and has never been challenged.
Did you consider using that kind of wording when drafting clause 84?
Mr. Xavier: Senator, the words in question are there simply because, to some degree, they reflect the reality that these rosters will never be completely reflective of the diversity of the Canadian population. That is simply impossible. When it comes to disabilities, for example, the rosters will never be able to reflect every possible disability. That just isn’t possible.
There will always be people who do not recognize themselves in these rosters. That is especially true when it comes to puisne judges, because the council will obviously have to find puisne judges who are available and willing to be included on the roster.
That will reduce the number of judges available, particularly when it comes to disabilities and gender identity. It isn’t possible for the rosters to always reflect the diversity of the Canadian population.
[English]
The requirement is necessarily one of best efforts. If it is to be one of best efforts, you could ask why the words need to be in there. The answer is just because of concerns about transparency and clarity of the laws. This is not a policy statement. It is not a mission statement. It is the law. When the law imposes a duty or obligation on someone, ideally it uses words that accurately capture the character of that duty or obligation. If the duty or obligation is one of best efforts, ideally there are words in the provision that reflect that.
The provision can operate without those words. Practically speaking, they will need to be read in by the council when they are applied. Keeping those words or similar words in like “shall consider” or something like that is simply a better characterization of the nature of the duty or obligation imposed on the council. And that’s the only reason the words are there.
[Translation]
Senator Dupuis: Is there not some contradiction there in terms of the wording —
[English]
“as far as possible the council shall . . .”
[Translation]
— compared to the wording in French, which reads “dans la mesure du possible, le Conseil inscrit . . .”? There is therefore an obligation to name but only as far as possible. Is there not a contradiction there that could cause interpretation issues?
Mr. Xavier: I have to say that I don’t see the contradiction. Do you think the French text differs from the English?
Senator Dupuis: No, it does not differ from the English text. However, it says that we have to do something, but we only have to do it as far as possible. Either we have to do it or we do not. If we are only doing something insofar as possible then that means we are not obligated to do it.
Isn’t there a contradiction in the wording there?
Mr. Xavier: In our opinion, that is just a characterization of the obligation that is imposed on the council. It is an obligation insofar as possible. It is only as far as possible.
[English]
The Chair: Could I make a small intervention? This is the only one I intend here, and officials may be able to help. Maybe in some respects this is also a question for Senator Clement, since it is her amendment.
If you are appointed as a judge, is it part of your obligations as a judge to agree to serve on a panel like this? Can you, without any repercussions, decline to be appointed to the panel?
I ask because some judges, who may see their main job to be judging, will not necessarily want to participate in judging their peer colleagues.
Here I’m thinking, Senator Clement, that might be the case with more recently appointed judges where we are hoping for more diversity. I am worried about the mechanics of this, if I can put it that way.
Senator Clement, just can you comment briefly on that dilemma?
Senator Clement: Thank you, Mr. Chair, for that question, which I take very personally. I live that every day. I am often the only person of colour in spaces that I occupy. Sometimes I just want to talk about the topic at hand, but guess what? It’s not what we’re called upon to do. Many of us from diverse backgrounds, when we show up in these spaces, we are called upon to do the extra — and we do it. Hopefully, those who can’t will say that they’re exhausted and that they can’t. But most of us do it because that’s what we’re called upon to do. Thank you for that question.
Senator Jaffer: I specifically want to ask the justice panel a question, and to you, Mr. Hoffman, because you have been here a number of times in front of us. When the phrase “as far as possible” was included, what was the thinking behind that?
Mr. Hoffmann: Thank you for the question, Senator Jaffer. To answer that question, it was really just to ensure precision in the law because it may not always be achievable.
I want to be completely candid and careful in what I’m saying. This wasn’t included to somehow be an affront to the principle of diversity, Senator Clement. Clearly not. We agree — I think I can say personally and professionally — that many things have to change, but we also understand as lawyers — that may be our downfall, I apologize — that there has to be clarity in the law. If it can’t be achieved always, that should be recognized.
The other thing I’d add, if I may, Senator Jaffer, is that you had Commissioner Giroux and Ms. Corado here. I think they both provided testimony to the fact that the council is looking at these issues. Transparency and other issues for discussion are on the agenda for change there, but that is for them to decide.
Senator Clement, I can’t say what will happen, but they were here in good faith and provided you that evidence. Hopefully, the future does bear fruit. The trees are in their hands to plant, and hopefully they will bear fruit.
Senator Jaffer: Chair, I want to address that. I have been a lawyer for 42 years, and for 42 years I’ve been told “as far as possible.” We are now a new Senate. As a new Senate, if we still accept “as far as possible,” then when will the change come? That’s the question we need to ask.
[Translation]
Senator Dalphond: I want to say that, in any case, I have seen specific instructions on this. The government is committed to diversity. For the first time in the history of Canada, the current government has taken into account sexual diversity, gender diversity when appointing judges in all the courts in Canada. Judges are 50% male and 50% female in all the courts in Canada. For the first time, diversity is one of the most common considerations in court appointments. The government is very committed to diversity.
Why are the words “as far as possible” used? That has been explained. It was explained to you by Mr. Xavier, who participated in the drafting of the bill. Some people here seem to be saying that, if we include the words “as far as possible,” then it means that there is no obligation there.
The French and the English are both clear. When it says “as far as possible,” it means that it needs to be done unless it is impossible to do so. There is case law that has interpreted those words. They are not just words that the drafters pulled out of thin air. These are well-known legal concepts. Why did the drafter feel the need to include those words here? It was explained earlier, and I want to repeat it.
[English]
I want to repeat that part in English. Why is it “as far as possible?” It’s because the pool of laypeople and the pool of puisne judges are not under the full control of the council.
You have to understand puisne judges are nominated by the association of judges, and the association can only nominate those who are judges and who are willing to be part of that exercise.
The pool is 1,200 judges, which includes about 100-something supernumerary judges, so that’s about 1,000 full-time judges. In that pool there is more diversity than ever, but we have not achieved full diversity; that’s for sure.
The issue then is who will be nominated. The council will select from those nominated, those who would be on the list of puisne judges. For the laypeople, the council will publish guidelines that will be made available on the website and publicized as much as can be done in this new social media in the time we live in. The pool will be limited to people who apply. Nobody will be forced to apply. There may be a few applicants; there may be thousands. Maybe there will be full selections; maybe there will be a limited pool from which it will be difficult to achieve that diversity.
The other question is: What do we mean by diversity? Here we have a full obligation: “The Council shall name persons who reflect the diversity . . .” That means if the lists are not reflective of diversity, the review panel or the public hearing panel can be challenged in its composition because the list is not made to reflect diversity. We have seen some judges going to court on interlocutory and other types of procedures for seven or eight years, challenging every part of the process.
If we make it such an ultimate goal that it’s une obligation de résultat, as we say in French, then you open the process to challenges from those who could be subject to being thrown out. We are trying to streamline the process to make sure we remove ways to challenge the process. Making it an absolute obligation will mean ending up in the Federal Court, asking the Federal Court to decide if these lists are reflective of the diversity of the Canadian population. If they are not, the Federal Court will order the council to start the exercise again.
That’s what we are trying to do here. There are a lot of jurists around this table, and they know that words have meaning, and deleting words will have consequences. We have to be careful about that. That’s the only thing I wanted to say.
[Translation]
Senator Dupuis: To continue in the same vein as Senator Dalphond, let’s consider the primary meaning of the terms used in this provision, which states, and I quote:
84 As far as possible, the Council shall name persons who reflect the diversity of the Canadian population to the roster of judges and to the roster of lay persons.
In the dictionary, “to reflect” is defined as “embody or represent something in a faithful or appropriate way.”
So, if we add “as far as possible” doesn’t that open a second door to a situation where diversity is not really reflected?
In other words, if we remove the expression “as far as possible,”then that would mean that the council will name persons who reflect, or who represent in a faithful or appropriate way, the diversity of the Canadian population to the roster of judges and the roster of lay persons. If we stick with the definition of “reflect,” then we do not need to include the expression “as far as possible.”
[English]
The Chair: It is moved by the Honourable Senator Clement that Bill C-9 be amended at clause 12, page 5 on line 1 by — this is where somebody usually says “dispense.”
An Hon. Senator: Dispense.
The Chair: Thank you. Is it your pleasure, honourable senators, to adopt the motion in amendment?
Some Hon. Senators: Agreed.
Senator Dalphond: Recorded vote.
Mr. Palmer: The Honourable Senator Cotter?
Senator Cotter: Yes.
Mr. Palmer: The Honourable Senator Batters?
Senator Batters: Yes.
Mr. Palmer: The Honourable Senator Boisvenu?
Senator Boisvenu: Yes.
Mr. Palmer: The Honourable Senator Clement?
Senator Clement: Yes.
Mr. Palmer: The Honourable Senator Dalphond?
Senator Dalphond: Abstention.
Mr. Palmer: The Honourable Senator Dupuis?
Senator Dupuis: Yes.
Mr. Palmer: The Honourable Senator Gagné?
Senator Gagné: Abstention.
Mr. Palmer: The Honourable Senator Jaffer?
Senator Jaffer: Yes.
Mr. Palmer: The Honourable Senator Patterson?
Senator D. Patterson: Yes.
Mr. Palmer: The Honourable Senator Klyne?
Senator Klyne: No.
Mr. Palmer: The Honourable Senator Simons?
Senator Simons: Yes.
Mr. Palmer: The Honourable Senator Tannas?
Senator Tannas: Yes.
Mr. Palmer: Yes, nine. No, one. Abstentions, two.
The Chair: The motion is carried.
Senator Simons, I’m going to ask you to introduce Senator Pate’s motion which is C9-12-5-23.
Senator Simons: Thank you. I have the honour and responsibility of moving a motion presented by our colleague, the Honourable Senator Kim Pate. Her amendment reads:
That Bill C-9 be amended in clause 12,
(a) on page 5, by adding the following after line 23:
“86.1 The Council shall, with respect to each complaint received, collect the following information, provided that the complainant consents to its collection:
(a) the race or Indigenous identity of the complainant;
(b) the sex and gender identity of the complainant; and
(c) any disability of the complainant.”;
(b) on page 23,
(i) by replacing lines 17 to 24 with the following:
“setting out, in respect of the year,
(a) the number of complaints
(i) received,
(ii) withdrawn or abandoned,
(iii) dismissed by a screening officer for a reason set out in
(A) paragraph 90(1)(a),
(B) paragraph 90(1)(b), and
(C) paragraph 90(1)(c),
(iv) dismissed by a reviewing member for a reason set out in
(A) paragraph 90(1)(a),
(B) paragraph 90(1)(b), and
(C) paragraph 90(1)(c),
(v) dismissed by a reviewing member for being wholly without merit,
(vi) reviewed by review panels, hearing panels and appeal panels, and
(vii) in respect of which any of the actions referred to in paragraphs 102(a) to (g) were taken;
(b) for each category listed in paragraph (a), the number of those complaints that allege
(i) sexual misconduct, or
(ii) discrimination on the basis of a prohibited ground of discrimination within the meaning of the Canadian Human Rights Act;
(c) for each category listed in paragraph (a), in a manner that does not allow for the identification of any complainant, a summary of the information collected under section 86.1; and
(d) for any withdrawn or abandoned complaints, the reasons provided, if any.”,
(ii) by adding the following after line 26:
“(3) The Minister may recommend, on the basis of the information contained in the annual report, that the Council establish seminars under paragraph 60(2)(b).
(4) If the Minister makes a recommendation under subsection 3, they shall make it public.”.
That is rather long. Let me also provide Senator Pate’s rationale for this more intensive data collection. I quote her:
The importance of disaggregated data is crucial for understanding what is and is not working within the criminal legal system. At the moment, we have very little data on whom the complainants are that are filing complaints and then most dissatisfied with the judiciary, outside of anecdotal evidence.
By giving this option, we are better able to understand who are the most displeased, who have the means to bring judicial complaints and who are disproportionately being impacted so that we can create better training for judges, lawyers and create a fair legal system.
The provision also allows a person not to file this information if they so choose which deals with a lot of the privacy issues we heard from Minister Lametti about. Without this data, we are continuing the trend of passing legislation without the required information to truly know what the most problematic areas of the current system are and how we can best address the root issues within the system.
Those are the words of Senator Pate. I want to add my own. I spent 30 years working as a journalist, and I know how important data is, especially disaggregated data.
I was also here when Senator Dalphond spoke powerfully about the state of the reports and the ways they have changed over the years. I know we are not supposed to have props, but he showed us the report when it was full of information and useful data, and the report a few years later when it was filled with pretty infographics that didn’t give us the kind of breakdown we needed.
I’m very pleased to be here in support of Senator Pate’s amendment. I may not be the best situated to answer technical questions about it, but the spirit of the amendment is one I wholly support. I think that with this kind of information we can get a much better analysis of what exactly is going on with these complaints, including being able to see how many of them are frivolous and vexatious in being brought by self-represented litigants of the “freemen on the land” variety. You can’t understand what a problem is unless you can measure it.
The Chair: It is just past five to six. We were scheduled to hear witnesses tomorrow. I’m going to suggest with some confidence that we are not going to get through all the amendments in clause-by-clause consideration by 6:15 today. As long as you have no objection, Mr. Palmer will cancel the witnesses we have for tomorrow. We will anticipate continuing clause-by-clause consideration.
I might also suggest that we try to bring closure to this amendment by 6:15, if possible. If we need more time, we will, of course, take it, but it would be a useful goal so we will have a plan for where we will continue tomorrow.
Senator Klyne: On the first part of the amendment, part (a) on page 5, I’m all for collecting disaggregated data of complainants. I am just wondering, was there not something in the bill in it that had a reference to disaggregated data? I just wondered if rather than in regard to complaints, disaggregated data should go with reference to complainants. I didn’t have the time to go through here and find disaggregated data, but I thought there was a reference in there. If you don’t know, I’m fine with it.
Senator Simons: The officials know. You, of course, have me at a disadvantage having not been here for the previous witnesses.
The Chair: Are you able to help us, Mr. Hoffman and Mr. Xavier?
Mr. Xavier: We’re talking here about adding section 86.1 to the bill, and then the rest of the amendments are to be made to proposed section 160, which deals with the annual report. I don’t think there was another provision in the bill. Nothing comes to mind that speaks to disaggregated data.
Senator Klyne: Fair enough, if that’s the appropriate place for it. I do think we should be collecting disaggregated data.
Senator Simons: Part of this, as Mr. Xavier points out, is about the annual report stage. It was those annual reports that Senator Dalphond brandished with such effect the other day.
Senator Klyne: Then it should be in the annual reports.
The other question I had was on the quite lengthy amendment that’s attached that follows that. I have to just ask you a question about the annual report.
The information that is laid out in part (b) of the amendment — it’s quite a lengthy amendment — should be in the annual report; is that data in there, or is it somewhere else, or in observation of the judicial council undertakings? Is this an appropriate place to put in the annual report?
Mr. Xavier: This is just simply about how much information the council needs to provide in its annual report. Whatever information that would be collected under proposed section 86.1 would be provided in the annual report, as well as additional information. There would be no other place. The bill doesn’t provide any other place for this information to be made public.
Senator Klyne: So the additional information set out in part (b) of the amendment would be fine in the annual report. There is no other place. I’m not concerned about 86.1. It’s part (b) of the amendment that concerns me.
Mr. Xavier: The amendment to section 160 proposed in clause 12. Unfortunately, I don’t have it in front of me, but I believe part (b) is the amendment to the proposed section 160, which is set out in clause 12 of the bill, which requires the council to issue an annual report. So this amendment is about adding a lot more specificity to what the council needs to make public by way of its annual report. That’s my understanding.
[Translation]
Senator Dalphond: I know that we are running out of time. I should have mentioned what I am going to say earlier. I made a series of observations that were similar to Senator Pate’s amendment.
I am therefore not against the amendment. If we have to send the bill back to the House of Commons anyway, then why not include it? I think it makes the system a little more rigid than observations do because there are things that cannot be deviated from given the use of the word “shall.” All rosters are limiting and so on. When the representatives of the council appeared before our committee, I took note of their commitments. They said that they were going to provide that kind of information.
I will not oppose the amendment since other amendments have already been adopted and the government will have to respond to us in any case.
Senator Dupuis: Just as we complain a lot about omnibus bills, today we are dealing with what I would call omnibus amendments. The drawback is that they deal with different issues.
I want to be sure I understand what I am voting on. On page 2 of the amendment — and I presume that Senator Simons will be able to explain this to me — there is point (b). There are also sorts of points: (a), (b), (c), and (iii), but point (b) near the end of page 2 reads, and I quote:
(b) for each category listed in paragraph (a), the number of those complaints that allege
(i) sexual misconduct, or
(ii) discrimination on the basis of a prohibited ground of discrimination within the meaning of the Canadian Human Rights Act;
My question is this. By including “sexual misconduct,” but excluding “harassment,” we are eliminating a concept that is well established in law and about which women are the ones who generally file complaints. There are a huge number of harassment complaints. If we need to look at something that is not defined as “sexual misconduct,” then there could be decades of litigation.
In my mind, we are losing something that is extremely important, something that women began fighting for with Robichaud in the 1980s. After years of litigation, we finally succeeded in establishing harassment as a form of discrimination. It is not a prohibited ground, as set out in point (ii), and that is what is problematic about that part of the amendment.
That is a major problem with that part of the amendment. That is why I am asking the same question. Could this amendment be divided?
Senator Dalphond: I think that the next amendment is about redefining those words. Perhaps we can discuss that amendment and suspend the matter of what word should be used here until we know what is happing with the next amendment. If the other amendment is adopted, then the word “misconduct” will be used. However, if the amendment is rejected, then we will use the word “harassment” instead.
[English]
Senator Simons: I vainly decided that I could do that without the thing in my ear. I believe Senator Dalphond is correct. I think Senator Clement has an amendment coming up to redefine “sexual harassment” as “sexual misconduct.” I don’t know how the French translation of that works.
Senator Clement, maybe you can jump in.
Senator Clement: That’s correct. The next amendment is on using “sexual misconduct,” the broader concept, as opposed to “sexual harassment.” I’m listening to Senator Dupuis, though.
Senator Simons: I am assuming that you and Senator Pate talked about the wording of her amendment in advance.
Senator Clement: We did share amendments. In fact, I shared my amendments with all of you last week, so you all know where I’m coming from, but yes.
Senator Simons: Obviously, as the honorary member of the committee, I suspect that Senator Pate’s thinking was in line with Senator Clement’s thinking, that sexual harassment is a subset of sexual misconduct, and perhaps, at least in English Canada, has taken on a sense of stuff that is not as serious. I don’t know. “Sexual misconduct” may be a broader umbrella term to capture a wider variety of bad behaviour.
The Chair: Thank you both. One option might well be to suspend the discussion on this amendment and give consideration to the next one, which is Senator Clement’s.
Part of the idea is to make sure we fit these together. We’re writing fairly prescriptive guidance in terms of what needs to be reported, and we should try to get it as accurate as possible. It’s somewhat awkward to do, in any event.
Would that be worthy of consideration? We may then give consideration to the slight adjustment of language in Senator Pate’s amendment, if necessary.
Senator Simons: I think that makes eminent sense. I recognize that this is a prescriptive amendment. For myself, I see the more prescriptive it is, the more limiting it can become, but in order to honour the responsibility I’ve been given to support this amendment, I’m going to support this amendment. I think clearing up the definition of “sexual misconduct” versus “harassment” first, of course, makes eminent sense.
The Chair: Colleagues, would you be open to suspending consideration of this amendment and inviting Senator Clement to introduce hers?
Senator Batters: I have a question on a different part of the amendment.
The Chair: There’s a good chance that it might be helpful to pick this up again tomorrow. There might be an opportunity for a bit of informal dialogue about the best choice of language.
That would be helpful, Senator Batters, if you had another point to put on the table with respect to the amendment.
Are we agreed with that as a suitable procedure? That will lead us to adjourning at roughly 6:15 and being ready to pick this up tomorrow.
Senator Batters: Perhaps it might be helpful for me put this question forward. If you don’t have the necessary information, Senator Simons, you could get it tonight. It is about the latter part of the amendment. It’s about how the minister can recommend, based on the information contained in the annual report, that the council establish seminars under paragraph 60(2)(b), and if they make that recommendation, they shall make it public.
I want you to explain that a bit. I was briefly distracted when you were doing your initial thing, so perhaps you explained that in full detail.
Senator Simons: No, I didn’t. I think the logic is that, rather than the information resting in the annual report that stays on a shelf, if you see a pattern of behaviour that would require remediation, you would now have the evidence to say, “Clearly, we need to have some seminars on this.”
Senator Batters: Yes, because there’s a particular problem in dealing with this issue or this issue.
Senator Simons: Yes. I would imagine that the seminars could be anything from how people use gendered language or how they use their pronouns to how to deal with vexatious litigants. I think the idea would be to make it “the Minister may recommend.”
Senator Batters: Would you ask Senator Pate to give you more detail about that?
Senator Simons: Yes. It would be “the Minister may recommend,” so it’s not prescriptive, but, based on the evidence, there may be a pattern of behaviour that needs addressing.
Senator Batters: Sure.
The Chair: Senator Dalphond, perhaps we will move to adjourning and picking this up tomorrow.
Senator Dalphond: Yes. Regarding the words “sexual misconduct,” that’s where I deferred to Senator Clement’s amendment. If we agree with that amendment, then it should be automatically the same words here. If we don’t, it should be the other word.
On page 3 of the amendment, there is an addition after line 26, which states, “The Minister may recommend, on the basis of the information contained in the annual report, that the Council establish seminars under paragraph 60(2)(b)” and, under proposed subsection (4), it states, “If the Minister makes a recommendation under subsection 3, they shall make it public.” These are not things I will support. I was supportive of the information, but I will not support interfering with judicial independence. With this proposal, the minister can shame the council and say, ”I have recommendations, and I will make them public to put pressure on you to act.” We had this debate previously and it is relevant to Supreme Court decisions and about the independence of the judiciary. We’re now crossing a line which I think is very delicate. I think we’re going a bit too far.
On this one, I know Senator Simons will confer with Senator Pate to see if she really wants to have this there, if it’s critical for her. I want you to understand my concern.
Senator Simons: Yes, I understand.
Senator Dalphond: For me, it’s a crucial concern.
Senator Simons: I have a question for our table of experts here. It says “establish seminars” under proposed paragraph 60(2)(b). How are those seminars to be established under 60(2)(b)? Do you think there’s a constitutional question if the minister makes the fact that seminars are happening public?
Mr. Xavier: Hopefully, this will answer your question. The minister is required to make a recommendation. First, I think it’s worth noting that Minister Lametti and Chief Justice Wagner signed a memorandum of understanding on judicial education that requires the government to consult the council any time an initiative may have an impact on judicial education. It’s fairly broad language. It’s hard to see the minister making a recommendation like this without talking to the council first.
In terms of the recommendation and how it might be followed up on by the council, that would be entirely up to the council. There’s nothing that requires the council to follow up in a particular way, and that seems consistent with respect for judicial independence and respect for the judiciary’s control over the substance of judicial education.
Senator Simons: That’s the recommendation, but making that public, do you see that as a constitutional question?
Mr. Xavier: There’s nothing about making it public that raises a constitutional issue. It’s hard to imagine the minister making a recommendation without discussing it with the council first. The council would expect that it is coming. The council might be required to respond publicly, but there’s nothing about that, in and of itself, that raises a constitutional concern.
Senator Simons: Thank you very much. That’s very helpful.
The Chair: If I could interject one last observation, in the list of things required to be reported there’s no reference to religion or ethnic background. I mention that because you will recall that one of the issues raised by complainants were concerns about whether a judge respected, or compromised or championed a religious perspective on something. Again, the risk with this list is once you write these in and nothing else, these might be all you get. One might even think about racialized communities more generally that are not captured by these titles.
Senator Simons: You’re quite right. If somebody is concerned that they’ve been discriminated against on the basis of being Jewish or on the basis of being Hutterite, that’s not captured here. I will speak to Senator Pate about a friendly amendment to that.
The Chair: I’m sorry. I was chuckling about something else. Mr. Palmer has written me a note telling me what room I should come to tomorrow. I went to the wrong one today. We’re going to do this in 110 Wellington tomorrow.
If I understand where we are, we’ll be continuing the discussion on Senator Pate’s amendment, with insights that might be brought to us tomorrow morning and maybe even some adjustments for the way in which the language is presented. That will be done with a degree of consultation or at least reference to Senator Clement’s amendment that we will take up tomorrow.
Thank you all for a lively, respectful and insightful conversation. In particular, thank you to our witnesses for their interventions and contributions today. We will reconvene tomorrow.
(The committee adjourned.)