THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
EVIDENCE
OTTAWA, Thursday, May 11, 2023
The Standing Senate Committee on Legal and Constitutional Affairs met with videoconference this day at 11:30 a.m. [ET] to examine Bill C-9, An Act to amend the Judges Act.
Senator Brent Cotter (Chair) in the chair.
[English]
The Chair: Honourable senators, we are reconvening the Standing Senate Committee on Legal and Constitutional Affairs to continue clause-by-clause consideration of Bill C-9, An Act to amend the Judges Act.
For our vast viewing audience, we might reintroduce ourselves.
Senator Batters: Senator Denise Batters from Saskatchewan.
Senator Martin: Yonah Martin from British Columbia.
[Translation]
Senator Boisvenu: Pierre-Hugues Boisvenu from Quebec.
[English]
Senator Jaffer: Mobina Jaffer from British Columbia.
[Translation]
Senator Dupuis: Renée Dupuis, independent senator from the Laurentides division in Quebec.
Senator Clement: Bernadette Clement from Ontario.
[English]
Senator Klyne: Good morning. Marty Klyne, senator from Saskatchewan, Treaty 4 territory.
[Translation]
Senator Dalphond: Pierre Dalphond, senator from the De Lorimier division in Quebec.
Senator Gagné: Raymonde Gagné from Manitoba.
[English]
Senator Tannas: Scott Tannas, Alberta.
Senator Simons: Paula Simons, Alberta, Treaty 6 territory.
The Chair: I’m Brent Cotter, a senator for Saskatchewan and chair of the committee.
I might also welcome back the folks we had with us yesterday: Toby Hoffmann, Director and General Counsel, Judicial Affairs Section; Patrick Xavier, Senior Counsel, Judicial Affairs Section; and Shakiba Azimi, Council, Judicial Affairs Section. Welcome back, and thank you for joining us once again.
Colleagues, as you may recall from yesterday, Senator Simons was giving consideration to reconfiguring the amendment she had introduced. Some work is under way to try to craft that in an acceptable form for our consideration. Senator Clement’s amendment, which would be the next one we would consider, has a relationship to that. With your indulgence, I thought we might suspend consideration of those two amendments and return to them once we’re in a position to reflect on what Senator Simons might share with us.
If that’s acceptable — hearing no objection — that would lead us to the next amendment on our list. Again, it is with respect to clause 12, Senator Batters’ proposed amendment DB-C9-12-8-22 dealing with the possibility of the suspension sanctions.
Senator Batters: I’m sorry, did you say we are also having Senator Clement’s amendment later on as well?
The Chair: Yes. I asked if that was okay. They have a relationship to each other, so we might try to continue the conversation, which we had already started, in a joint way.
As we begin, we have another two hours today for consideration of the amendments. I’d encourage us to try to intervene on new points and as succinctly as we can, which would give us a chance to conclude clause-by-clause today if we possibly can.
Senator Batters: I have one question on that, though. I had a question yesterday with respect to Senator Pate’s amendment. Will I be getting an answer to that at a later point when we reconsider that?
The Chair: We’ll do our best. We won’t lose sight of that.
Senator Batters: Thank you.
The next amendment that I have is labelled DB-C9-12-8-22. I move:
That Bill C-9 be amended in clause 12, on page 8,
(a) by adding the following after line 22:
“(e.1) suspend the judge with salary for a period that the panel considers appropriate in the circumstances;
(e.2) suspend the judge without salary for a period of up to 30 days;”;
(b) by replacing line 25 with the following:
“graphs (a) to (e.2);”.
A number of options have been added to Bill C-9 that don’t currently exist. That’s a good step in the right direction. Right now, the only option is to potentially remove a judge, which is obviously a very serious step. Bill C-9 includes many different much less serious consequences that could be employed in a judge’s disciplinary process, such as reprimand, requiring an apology and things like that, but then there’s quite a gap and then it goes to removal.
As I’ve been questioning throughout this committee, I’ve been wondering about the possibility of having a suspension with or without salary. That started out when Minister Lametti was here right off the bat. A good way to summarize it is how I voiced it to Ms. Warner of the Ontario Judicial Council when she was here in front of us. I said:
One thing that I’ve been wondering about is since Justice Minister Lametti testified, I asked him about this . . .
Here I am talking about the possibility of suspension with or without pay.
. . . he passed the issue to his official about the possibility of a disciplinary sanction that would be suspending with or without pay.
Minister Lametti did not comment on it, but he passed the matter to his official who is here with us today.
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.
I then went on to say:
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, that would be called the Ontario Superior Court.
I said:
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, in her response to that, because this has been done quite some time before, probably in 1994 or so, wasn’t aware of the considerations that went into the rationale initially for including that, but she said:
… what I can tell you is I did review the two hearing panel decisions where the panel decided to impose a 30-day suspension.
That was in 2017, so it was quite recent. She said:
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.
I said:
Great. I agree with you. That is a really huge chasm, as you put it.
Then I was asking her about the time frame for the years, and she said:
The act came into force in February 1995, and there have not been any significant amendments to the legislation.
As such, allowing for a suspension with or without pay has been allowed for Ontario judges who are provincially appointed since 1995.
She said:
There have been a few provisions added, but it has remained relatively unchanged throughout the 28-year history.
So my amendment proposes, yes, to suspend a judge without salary for up to 30 days, and that’s the limit for that, or suspend the judge with salary for a period that the panel considers appropriate.
Then, when considering this, we received a very helpful memo prepared by the Library of Parliament analysts because I wanted to know about other provinces and what they do for their provincially appointed judges. Let’s remember again that for the Judges Act that we’re considering, this is for federally appointed judges, but that’s not just the Supreme Court of Canada, the Federal Court of Appeal and the Federal Court. There is also a relatively lower court, which is the Court of King’s Bench in certain provinces and the Ontario Superior Court, that level of trial courts. That would also include them.
When I looked at the memo from the Library of Parliament analysts, almost all of the provinces allow this:
British Columbia allows suspension of the judge or justice with or without salary for a further period of not longer than six months.
Alberta allows that the respondent be suspended with pay for any period or that the respondent be suspended without pay for a period of up to 90 days.
Saskatchewan allows suspending the judge with or without salary for a specified period or until specified requirements are met, including a requirement that the judge obtain medical treatment or counselling.
Manitoba allows suspension of the judge with pay for any period or without pay for a period of up to 30 days.
Ontario allows suspension of the judge with pay for any period or without pay but with benefits for a period of up to 30 days.
Quebec allows a condition if there’s a recommendation provided, then —
[Translation]
— the council suspends the judge for a period of 30 days in Quebec.
[English]
New Brunswick allows suspension of the judge whose conduct is in question from the performance of the judge’s duties without pay for a period of up to 90 days or suspension of the judge whose conduct is in question from the performance of the judge’s duties with pay and with or without conditions for a period of time it considers appropriate.
Nova Scotia allows requirement of the judge to take a leave of absence with pay.
Prince Edward Island allows an order recommending that the Lieutenant Governor-in-Council order a suspension of the appointment of the respondent for a specified period of time or until the occurrence of a specified future event.
Newfoundland allows suspension of the judge for a period it considers appropriate until conditions which it may impose are fulfilled or until further order of the adjudication tribunal.
It is very comprehensive. I decided to make mine only 30 days so that we didn’t get into a situation where it was getting potentially too close that it might be considered to be a situation where perhaps consideration for removal would be warranted. Up to 30 days is a lesser time frame.
Another thing that I thought was important in this whole issue is the fact that what we’re trying to do with the revamp of this act, which hasn’t been revised for so long, this disciplinary proceeding process, is we’re trying to avoid situations where judges who are under this disciplinary process continue their disciplinary process on and on for many years and continue through numerous appeals, have a situation and continue to be paid by the taxpayers and their situation is unresolved for many years to come.
To have only removal, as is currently the case — obviously not appropriate — but by having such a wide gap between a reprimand and an apology, lower-level sanctions, all the way up to the next sanction, which would potentially be removal, if a judge is facing that sort of a situation, perhaps then they’d be inclined to continue those processes on for so many more years, but if it’s a situation where perhaps they can get a short suspension without pay or maybe a longer suspension with pay, it’s transparent and allows a sanction that’s maybe more appropriate for the circumstances that warrant it. I think that’s very important in analyzing this as well.
When I asked the Canadian Judicial Council about this, I also said this, because earlier in that panel, I guess it was the Commissioner for Federal Judicial Affairs, and I was referring to Senator Patterson having asked him about the suspension with pay possibility. Mr. Giroux had responded that sort of thing can be done right now. A Chief Justice can effectively suspend a judge with pay by just not assigning them to cases. I brought up the point that that’s not at all transparent. The public would never know that was happening. They might just think maybe that judge is on holidays or a sick leave or numerous other reasons. They would never be aware that they’re facing a disciplinary proceeding or a potential misconduct allegation that has led a Chief Justice to make that sort of action against them.
The Chair: Senator Batters, could I invite you to sum up? This is an important point, but I want to give other people an opportunity.
Senator Batters: Yes, absolutely. I just wanted to refer to that.
What I said to Mr. Giroux was:
… with respect to your comments to Senator Patterson about the suspension with pay option to say that the Chief Justice of different jurisdictions already does this regularly . . . . I think you might want to tell the justice minister . . . about that because when we had the Justice Department officials in I asked them about that availability; why wasn’t a suspension or docking of pay included as an option here? The official stated that if the misconduct was so serious that suspension or docking of pay would be considered, then that misconduct would be in the realm of removal and that is why it wasn’t included.
I emphasized it’s far from a transparent process. The public would never know about such internal administrative assigning or not assigning a judge on that.
Then I also stated:
… we also had the opportunity to ask the Ontario Judicial Council about why Ontario does have that included in one of their lists of options. Ms. Warner of the Ontario Judicial Council provided examples, actually, of when serious misconduct met the level of suspension without pay and yet they determined that removal was not appropriate.
Mr. Giroux went on to suggest that perhaps there was a jurisprudence reason as to the judicial independence of judges that may impact that, but then I said to him that we’ve not heard from either the justice officials or from the Ontario Judicial Council that that is a problem with either of those, so I do not expect that it was.
I would ask you to consider this amendment, and I’d be happy to answer any questions. Please consider supporting it. Thank you.
The Chair: Thank you.
Senator Dalphond: As the sponsor of the bill, I hope I enjoy 10 minutes, like Senator Batters, to explain why it doesn’t fit into the bill.
The Chair: This is an important consideration, Senator Dalphond, and you’re the sponsor.
Senator Dalphond: Thank you very much. I appreciate it.
I’ll start first with questions to officials. I direct them to proposed section 126, which is on page 14 of the bill, (3), salary increases. It says:
For greater certainty, nothing in subsection (1) is to be construed as removing from the judge any entitlement to a salary increase that takes effect on or after the day on which the judge is given notice of the full hearing panel’s decision.
So a judge continues to be paid until he is either dismissed by Parliament or he resigns. If, in the meantime, there is an increase on his pay, that increase has to be paid. Is that what the section is saying?
Patrick Xavier, Senior Counsel, Judicial Affairs Section, Department of Justice Canada: I think so, senator, but that section is specifically part of a broader section that deals with freezing the judge’s pension entitlement, which is a very important section that brings up an important point regarding this amendment.
The financial security requirements of judicial independence have nothing to say about whether suspension without pay could be enacted as a matter of policy, but they do impose a procedure that needs to be followed before any amendment touching on judicial pay and benefits can be enacted. That procedure is the judicial compensation process.
Clause 126 in the bill will replace section 65.1 of the act, which was enacted a few years ago to freeze a judge’s pension entitlement when the CJC recommends their removal, and that amendment went through the full judicial compensation process before it was enacted in order to make sure it was constitutional. The judicial compensation process takes about a year to complete.
Senator Dalphond: Would you say, Mr. Xavier, that federal judges have to be treated the same way as provincial judges and that Part VII of the Constitution, which deals specifically with the federal judiciary, does not provide a status that is different from that of provincial judges?
Mr. Xavier: You’re referring to section 99 of the Constitution Act, 1867?
Senator Dalphond: Sections 95 to 100, Part VII, dealing specifically with the Constitution’s requirements about the judiciary.
Mr. Xavier: Section 99 does require a judge to serve during good behaviour. It’s not clear that you could suspend a judge without a breach of good behaviour. Whether you could suspend them following a breach of good behaviour is an open question, but it’s a possibility. It’s sort of unclear.
There is no reason that provincially appointed judges and federally appointed judges need to be treated exactly the same way. What we heard on suspension with pay, when we did consultations, was that it’s more of a punishment for the court than for the judge, because the judge is off with pay but the court, meanwhile, has to struggle to make up for the judge’s absence.
Senator Dalphond: The Supreme Court said that provincial judges are entitled to protections that are similar but not the same as Superior Court judges.
Mr. Xavier: The Supreme Court did say that, yes.
Senator Dalphond: I think that what you said might be misleading. I think the Supreme Court clearly said they were entitled to protection under the Constitution.
Mr. Xavier: They did, yes.
Senator Dalphond: The bill, as drafted, provides that the salary continues to be paid even if the judge is suspended. There are two types of suspensions that are being confused by some people here. The first is an administrative suspension, which is an administrative decision made by the chief of the court to say, “Pending your conduct review issue, you’re not going to sit, or you’re going to sit only these types of cases,” whatever. This is not a sanction, because the sanctions would be imposed by the review committee and not by the Chief Justice.
In Ontario, when the panel decides, before the review is completed, that a suspension might be the proper thing, the act says it can recommend to the regional judge to impose that. The Ontario panel does not have the power to suspend a judge pending review. It has the power to recommend to the regional judge to suspend the judge. We don’t have something similar here, obviously.
For example, with Justice Dugré, who is still a judge, or his previous colleague, Justice Girouard, were they paid until the day they resigned?
Mr. Xavier: Yes, they do. They get paid until the day they resign.
Senator Dalphond: Are they entitled to be paid until they resign?
Mr. Xavier: Yes.
Senator Dalphond: That’s what the Constitution provides. Independence calls for three things: financial security, security of tenure and administrative independence.
What we’re trying to do here is to say to a judge, “You won’t be paid for 30 days.” Why not 90 days? Why not a year? How does the judge manage to live? The judge is not paid. Isn’t that an attack on financial security, which is protected by the Constitution and which the Supreme Court said is one of the three characteristics of judicial appointments to guarantee independence?
Toby Hoffmann, Director and General Counsel, Judicial Affairs Section, Department of Justice Canada: I think you’re exactly right, Senator Dalphond; it is a matter of financial independence. That is why Mr. Xavier has testified to the fact that it’s not a simple matter. There’s a constitutional process that is required. It has been spoken to by the Supreme Court of Canada in its jurisprudence.
If I may, I would add, in relation to what Senator Batters had said, that when officials appeared here — and our apologies, Senator Batters. We weren’t advised of the fact that the questions posed were exactly in relation to the powers of chief justices. You’ve referenced Commissioner Giroux’s testimony. Yes, that is a regular facet of the responsibilities and duties of a Chief Justice of the Federal Court. They are as concerned about disciplinary matters and about how their courts are perceived publicly to ensure the proper administration of justice.
Senator Dalphond: To resume my time, tell me when I am at 10 minutes. I don’t want to be unfair to Senator Batters.
When the council’s representative came before us, the general counsel for the council, I don’t have the transcript before me, but she was asked about why you don’t have suspension without pay. Her answer was that it’s because of section 99 of the Constitution and the entitlement to financial protection for judges. I can quote extensively what the registrar from the Ontario council may have said before us, but I think we should refer to what has been said by the general counsel for the council, referring to articles specifically applicable to Superior Court judges, and we should avoid confusing things that are different.
My conclusion is that we cannot support that amendment. I don’t understand how suspension of a judge with salary is a sanction, unless it’s made public. If it’s not made public, it’s a free ride. “You’ve committed a misconduct and we’re going to suspend you with pay for three months.” I can understand the Chief Justice thinking that it’s not the proper way to go.
If it’s to be made public, it should be remembered that the Federal Court of Appeal has made it clear in 2013 in Slansky that the process, and especially the review process — we can think here about intermediate sanctions, so about the review process — has to provide discretion to the council to make it public or private in considering the best interests of justice. Thank you.
[Translation]
Senator Dupuis: Thank you to the witnesses for being here today.
I have two questions for the witnesses.
I’d like to refer you to paragraph 102(g) on page 8 of Bill C-9. It’s the clause with the heading “Dismissal of complaint or action.” Paragraphs (a) to (g) list a number of actions that can be taken by the review panel.
My question is this: Under clause 102(g), can the review panel take the following action, “with the consent of the judge, take any other action that the panel considers appropriate in the circumstances”? Does paragraph 102(g) allow for the suspension of a judge with or without pay? It is understood that it is with the judge’s consent.
Mr. Xavier: It would probably be the suspension of the judge with pay. Suspension without pay is a bit difficult to say and, as Senator Dalphond said, it’s a measure that should really be reviewed by the Judicial Compensation and Benefits Commission before it can be part of the process. I don’t know if the judge could consent to that; perhaps. The judge could certainly agree to being suspended with pay.
Senator Dupuis: Thank you.
My second question concerns the information provided by Mr. Giroux, the Commissioner of the Office of the Commissioner for Federal Judicial Affairs. He told us that right now, the power to suspend, meaning not to assign cases to a judge, falls under the prerogative and discretion of a Chief Justice. If I understand correctly, that is the current situation.
We are creating another structure that has another power to suspend — in the case of the Chief Justice’s discretion, we’re talking about “not assigning,” which we agree amounts to suspending.
From your point of view, what is the impact of this amendment on the Chief Justice’s current authority not to assign a case, that is to effectively suspend a judge?
Mr. Xavier: I think it’s important to distinguish between what the Commissioner was talking about and the sanctions we’re talking about here.
When a Chief Justice decides not to assign a judge certain cases, they are using their power of assignment to protect the public trust in the court. That is a serious action that is taken because it is alleged that the judge in question has done something really serious. The judge is not necessarily suspended; the judge generally doesn’t hear cases, but can carry out all sorts of administrative duties while the process is being completed.
For instance, that was the case for former Associate Chief Justice Douglas. Even former Justice Girouard continued to do some administrative work for the court, simply he wasn’t sitting. So, it’s not really a suspension; the judge isn’t sitting, but that does not mean that the judge is completely inactive.
The suspension, as a sanction, is something completely different. It’s a sanction, but it doesn’t really have an impact on the powers of the Chief Justice. Of course, it affects the court’s ability to function.
You asked me if the judge could be suspended with their consent. Yes, probably, but the Chief Justice would probably be consulted as well, and I don’t know what the Chief Justice would say, because the absence of a judge for a period of time isn’t an ideal situation for a Chief Justice.
Senator Dupuis: Thank you. I would like to ask for clarification.
I see the distinction you’re making between a sanction of suspension and the discretion of the Chief Justice not to assign cases.
What I’m trying to understand is the impact of whether, through this amendment, the review panel is given the authority to suspend a judge, as opposed to the discretion currently afforded the Chief Justice not to assign cases to a judge. It seems to me that there is an impact.
Mr. Xavier: There may be an impact, but I do not think it would be problematic. If a judge must take specific training, that could also mean that the judge would not be available to hear certain cases for a certain amount of time, and that could also have an impact on the assignment power. It’s not really problematic.
Senator Dupuis: Very briefly, I’ll give you the following specific example: A suspension is issued by a review panel — under the amendment if it passes — for a period of one year. The judge is suspended with pay anyway; the judge can’t complain that their salary is affected. Am I not limiting the ability of a Chief Justice to assign cases to that judge?
Mr. Xavier: Absolutely, yes.
Senator Dupuis: Thank you. That was my question.
[English]
Senator Simons: I have to say that at first blush, Senator Batters’ amendment seems to be a pragmatic one, particularly if you have got a case where misconduct is linked to a substance use problem or a mental health problem and what the jurist in question might need is rehab or counselling and then be able to return to active duty. That seems to me to allow for that kind of situation where somebody has done something that is serious, but the gravity of the offence is linked to something like abuse of drugs or alcohol.
I’m struggling to understand. We have a case unfurling in Canada right now, which, of course, we’re not going to make specific reference to, where a very senior judge is seemingly suspended — I don’t know if that’s with or without pay — that’s with pay, but that’s while the complaint is being investigated. So if you can do that, why can’t you do it after the fact?
Mr. Hoffman: Thank you for the question, senator.
That is a possibility, but, again, as Mr. Xavier had said earlier and as I had said earlier, there has to be trust reposed in the Chief Justices of each court to do what they believe is best. As the process unfurls, the Chief Justice may decide that other measures are necessary, aside from the disciplinary process that’s ongoing. Again, the ultimate consideration, the ultimate concern, is wanting to continue to ensure public confidence in that institution. So arguably — and I say this very objectively — if powers or sanctions are to be mandated for certain Chief Justices across the country — I can’t speak for them, but that arguably could be seen as an encroachment on judicial independence and what’s best for the court.
Senator Simons: But this, as I understand it, doesn’t deal with the powers of the chiefs of the various courts to do internal discipline. This is specific, as I’m understanding it, to the judicial council, which is, in the case that we’re all dancing around, investigating conduct that is not judicial but temperamental.
Mr. Hoffman: I’ll be frank. We are here to be helpful, but I’m not sure there is much more we can say in the sense that I think there may come a point, senator, when lines get blurred. As I said, there may be members of the judiciary that would feel that that is an encroachment on their ability to have care and control of their courts. I’ll leave it at that, senator.
Senator Simons: Thanks. I appreciate that.
The Chair: Could I just make this brief observation? We might characterize it differently, but in the case that you have referred to, the Chief Justice of the Supreme Court has articulated that the judge in question is on a leave of absence, and we might interpret that to be a suspension, but a leave of absence has been the public statement.
Senator D. Patterson: In principle, I am persuaded by Senator Batters’ argument that there is merit in having more flexibility between the relatively minor sanctions in section 102 — they are closer to a slap on the wrist, a reprimand. I don’t mean to minimize them, but they are certainly lesser penalties. Then there is the drastic removal. In principle, this makes a lot of sense. We find that in many other disciplinary situations, and police forces come to mind.
But I hear from Senator Dalphond and the officials, “Well, wait a minute. The financial security aspect of independence of the judiciary is threatened by a suspension without pay.” Senator Dalphond and officials also pointed out that there should be parity between — according to the Supreme Court, there should be some equality between provincial court judges and federal judges, if I understood that correctly.
Here we have a range of provinces that have set up, in their judicial disciplinary proceedings, the ability to suspend without pay, and we also have an array of provinces that are apparently jeopardizing the independence of the judiciary by threatening financial security. If this is happening so widely across the country at the provincial level, why are these two concerns relevant here? If it’s for some years now been in place in provinces that certainly don’t suggest equality with the federal regime and certainly would seem to impact the financial security of judges, how can this be allowed if it’s widely practised in provinces?
Mr. Xavier: I’m not aware the issue has ever been litigated. To be perfectly clear, the financial security component of judicial independence does not necessarily prohibit suspension without pay. What it prohibits is the enactment of any change to judicial compensation and benefits that has not first gone through a judicial compensation process. The fact that a benefit exists in a different jurisdiction does not allow the federal jurisdiction to enact it without going through the judicial compensation process. The Supreme Court has just been very clear about the gatekeeper role of the Judicial Compensation and Benefits Commission when it comes to anything touching on judicial compensation. That’s why 65.1 of the Judges Act, which freezes pension entitlements when the CJC recommends removal, went through the process before becoming law. The same requirement would apply here. It would need to go through the federal commission before it could be enacted into law in order to be constitutionally enacted. That’s how the financial security component works, the procedural aspect of it.
Senator D. Patterson: To meet that condition, the amendment would need to be modified to respect the judicial compensation process; is that what you are saying? Then it would be okay?
Mr. Xavier: A suspension with pay could be enacted if this committee decides that is a good thing to do, but suspension without pay could simply not be enacted at all until it had gone through the compensation process.
Senator D. Patterson: Thank you.
[Translation]
Senator Boisvenu: I have a question for Senator Batters.
You propose two possibilities in your amendment: suspension with pay and suspension without pay. Can you explain to me, and to those listening, the circumstances in which pay would continue and the circumstances in which it would not?
[English]
Senator Batters: That’s right, it would give the possibility, just like many of those other provinces. Almost all of them have the possibility of suspension with — and I use the word “salary,” not “pay,” because that has a specific connotation. Salary would mean the actual what we would consider salary, not necessarily benefits, so I didn’t want to have that included. So they would have a suspension with pay possibility, just as we have heard effectively happens right now anyways, but with no transparency, and then a suspension without pay, which would be up to only 30 days as a lower range in what many provinces have allowed so as to avoid that getting close to the chasm where removal could be a more appropriate penalty.
[Translation]
Senator Boisvenu: Who would decide to continue a suspended judge’s pay? Is it the circumstances of the offence or is it the panel who would decide whether pay continues?
[English]
Senator Batters: This would be one of the options available to the disciplinary panel as the judge’s disciplinary case goes through that. Right now, in the current system, the only option is the removal of the judge, which is obviously a very serious situation. Bill C-9 has gone some ways to adding some lesser sanctions on warning, reprimand, apology, other types of specific measures, but there is nothing currently included after those lesser penalties. Removal is the next one.
The Chair: Who would be making that decision?
Senator Batters: As I said, the panel.
Senator Boisvenu: It’s not automatic?
Senator Batters: No, not automatic.
Senator Tannas: If the suspension without pay was removed and we simply said that the panel could either find or tax for cost recovery of this whole process an amount not to exceed one month’s pay, would that be a simpler way for us to exercise what we think is a good idea, which is to hit a judge for some amount of money in recognition of what’s gone on without interrupting their pay?
Mr. Xavier: It would not change anything, senator, I’m afraid. As soon as you say “hit a judge for any amount of money,” you are falling afoul of the financial security requirements, unless the Judicial Compensation and Benefits Commission has considered the proposal and issued a report with a recommendation and the government has responded. That’s how the process operates. The commission is the gatekeeper to anything that has anything to do with pay and benefits.
Mr. Hoffman: Just to be clear, each of the provinces that Senator Batters mentioned does have their own commissions that look at these issues. I apologize, but we can’t say today whether or not those specific commissions have looked at this issue. Perhaps they have, but we can’t say that with any certainty.
Mr. Xavier: The commission requirement dates from 1997, so it’s also possible that some of the suspension without pay provisions predate 1997. It’s hard to say.
The Chair: We will conclude with Senator Batters unless there is a need for another intervention. I would like you to speak to only something new, if you would.
Senator Batters: Yes, I wanted to address some of the points that others had been making which I had specific commentary on.
In that respect, today, for the first time, we’re hearing some of these specific concerns about these different issues when this issue of potentially allowing for a suspension with or without pay in this act was something that I raised actually in my second reading speech. I said that I wanted to know why those considerations weren’t in this act, and that was, of course, before the minister came here to the committee. I asked the minister specifically about it. He raised none of these concerns. He deferred the question to his officials, and we didn’t hear these concerns from the officials then. We asked Minister Lametti to come back. He declined our invitation. Now today we’re hearing different concerns that haven’t previously been raised.
As well, when Mr. Giroux was here, he was telling us specifically about the option of suspending a judge with pay. That’s effectively done, he said, by the Chief Justices not assigning cases, no problem. Yet now we’re hearing today the Department of Justice officials saying that it’s not clear that you could suspend a judge without a finding that they are not of good behaviour. It sounds like, from what Mr. Giroux was saying, that’s fine as long as it’s not transparent. But if we transparently put it in the act so the public can know about this situation, that might be a problem. We didn’t hear that concern raised from either the Canadian Judicial Council, who is currently in charge of this sort of this process, or from Mr. Giroux. Again, for those reasons, it may have been helpful to have the Minister of Justice come back to address these specific questions, which I continually raised over the last several weeks.
As well, nothing in this amendment takes away any powers of the Chief Justices to handle their care and control of their courts. Calling something a leave of absence as compared to a suspension with pay seems like quite a fine nuance there.
I also point out that these provincial systems — for example, Ontario I know has been in place for 30 years — and then when the officials say today that they are not aware that this issue has been litigated, I point out, then, that for decades, no judge in Canada has litigated this. We could reasonably expect that those judges facing possible removal would litigate such a point if they thought that they had a decent shot of winning on that issue.
I submit that my amendment dealing with the issue of ensuring public confidence goes quite some ways to actually ensuring public confidence and to making sure we can have an efficient disciplinary process that would allow for a sanction which would give something to actually allow judges to receive a real sanction without having to litigate for years and years and costing the taxpayers hundreds of thousands of dollars before they try to go all the way to a removal procedure.
The Chair: Thank you for that. Senator Dalphond is the sponsor. He may have the last comment.
Senator Dalphond: I repeat what I said because maybe it was misunderstood. There are two different scenarios. When the chief judge or regional judge temporarily suspends a judge because he is going through a review process, this is an administrative decision which is not a sanction. It is just to say, concentrate on the conduct review. It might also be to protect the integrity of the court. You know, Justice Brown is not sanctioned. He is on leave. He is paid and he is concentrating on the allegations that were made regarding some behaviour. This is an important point.
In Ontario, Senator Batters referred to the fact that it is an available sanction. Although it has been in place for many years, but she omitted, or maybe she forgot, what the witness said. It was used three times over all that period of time. The statute provides for 30 days. That’s the limit in the bill. Nobody challenged it in Ontario. The three judges did not challenge it. That doesn’t mean it’s constitutionally valid.
The Chair: Is it your pleasure, honourable senators, to adopt this motion in amendment?
Some Hon. Senators: Agreed.
Senator Batters: Recorded vote, please.
Mark Palmer, Clerk of the Committee: The Honourable Senator Cotter.
Senator Cotter: No.
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: No.
Mr. Palmer: The Honourable Senator Dalphond.
Senator Dalphond: No.
Mr. Palmer: The Honourable Senator Dupuis.
Senator Dupuis: No.
Mr. Palmer: The Honourable Senator Gagne.
Senator Gagné: No.
Mr. Palmer: The Honourable Senator Jaffer.
Senator Jaffer: No.
Mr. Palmer: The Honourable Senator Klyne.
Senator Klyne: No.
Mr. Palmer: The Honourable Senator Martin.
Senator Martin: Yes.
Mr. Palmer: The Honourable Senator Patterson.
Senator D. Patterson: Yes.
Mr. Palmer: The Honourable Senator Simons.
Senator Simons: Yes.
Mr. Palmer: The Honourable Senator Tannas.
Senator Tannas: Yes.
Mr. Palmer: Yes, 6; no, 7.
The Chair: The motion in the amendment is defeated.
We turn to the next of the proposed amendments. This is the amendment proposed by Senator Clement, C9-12-6.
Senator Clement: I would like to add sexual misconduct and no longer remove sexual harassment. The procedure would be what I’m turning to.
The Chair: I think we were going to hold that off in suspension if we may.
Senator Simons: We were waiting for language from the clerk.
The Chair: Is it the will of the committee to return to Senator Simons’ motion and then follow with discussion of Senator Clement?
Senator Simons: Unless we needed to do the harassment piece first.
The Chair: I think this, and the sequence seems to be acceptable to the committee.
Senator Simons: To catch us up from yesterday, I’m going to propose a friendly amendment to my own amendment. Having listened to the wise comments of the chair, the amendment would stand, but in clause 12, on page 23, instead of where we list the categories where it says now, (i) sexual misconduct — pardon me. I had the wrong page. I will re-read from the top. My apologies.
The Chair: Are you reading your full amendment?
Senator Simons: I move this part of it:
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, Indigenous identity, national or ethnic origin, and religion 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).”.
[Translation]
En français, on dit : « a) sa race, son identité autochtone, son origine nationale ou ethnique et sa religion; »
[English]
In consultation with Senator Pate, and because there were concerns raised about the final clause of the amendment, which reads if the minister makes a recommendation under subsection 3, they shall make it public, Senator Pate has agreed that we could excise that clause since that seemed to be causing some concern around the table.
The Chair: Subparagraph 4 specifically —
Senator Simons: Subparagraph 4 specifically.
The Chair: Are we all clear in terms of our understanding?
[Translation]
Senator Simons: It is the last subsection, subsection 3: “If the Minister makes a recommendation under subsection 3, they shall make it public.”
It’s on page 3, the last paragraph.
[English]
The Chair: Are we all clear on the shape of Senator Pate and Senator Simons’ amendment?
[Translation]
Senator Dupuis: I want to understand the last subsection on page 3. It’s a withdrawn amendment, isn’t it? Thank you.
[English]
Senator Simons: To the issue of the language of sexual misconduct versus sexual harassment, I have language from Senator Pate that I would like to read, and I think maybe Senator Clement would agree with this. This is what I have from Senator Pate.
The Chair: Just to be clear, are we now speaking about Senator Clement’s amendment?
Senator Simons: No, we’re talking because there was a concern raised that this language used the words “sexual misconduct.”
The Chair: This is the reference on the second page of your amendment? Okay. Go ahead.
Senator Simons: I think the justification will flow through.
The major reason for this choice of words is largely around the testimony that we heard from the Canadian Muslim Lawyers Association that the wording for sexual harassment may not be encompassing a breadth of sexual misconduct being reported to the CJC. In many ways, this wording choice is a compromise due to our lack of data on the issue. In 80(b), the justification required for the removal of office of the member of judiciary is misconduct and not simply harassment. There are lots of behaviours that, frankly, would not be encompassed as sexual harassment but are equally egregious and deserving of full investigation. Unfortunately, we were not able to hear enough testimony on this point to change this legislation at this point in time, but we need to know how many cases are being classified as sexual harassment and not dismissed by the screening officer and how many cases are classified as sexual misconduct and are being dismissed by screening officers. To hold accountable the Canadian Judicial Council on this crucially important area of complaints, we must get the data so we can better revisit this issue in the future and address systemic misogyny and sexism that is within the legal system, including at the Canadian Judicial Council.
Those are the words of Senator Pate.
[Translation]
Senator Dupuis: Just to be sure I understand, is anything being proposed in subparagraph (b)(i) on page 2 of the amendment? Are we keeping the text as it was presented in the amendment yesterday?
[English]
Senator Simons: Yes. I was explaining, as I failed to do yesterday, Senator Pate’s personal rationale for this. I provided mine, but not hers.
[Translation]
Senator Dupuis: Okay. Thank you.
Senator Dalphond: I’d like to understand the follow-up to the response to Senator Dupuis. Are there any amendments on page 1, yes or no?
[English]
The Chair: Did you see the phrasing with respect to new sub (a) in the first of the clauses? There is new language there.
[Translation]
Senator Dalphond: Yes, I saw that. Is there anything else?
[English]
The Chair: The language now, with respect to that provision, is sub (a) there will read, “race, Indigenous identity, national or ethnic origin and religion of the complainant.” So it is expanded to a number of other categories. That is the adjusted amendment that we’re addressing.
[Translation]
Senator Dalphond: My question was about the next page, on sexual misconduct.
[English]
The Chair: That language is not changed in this amendment. That remains the same. Then the third one is the removal of (4) from page 3.
[Translation]
Senator Boisvenu: I’m just trying to understand. Where will paragraph (a) of the document we’ve just been given be included?
[English]
The Chair: We may get that from Senator Clement. We may.
Senator Simons: My apologies, chair, but I think Senator Boisvenu means this little bit that says:
[Translation]
“(a) race, Indigenous identity, national or ethnic origin and religion of the complainant.” That would be included on the first page, after section 86.1.
Senator Boisvenu: My intervention is one of principle. Is there any place in our justice system where, when a complaint is filed with a police officer, the complainant will be identified by race, identity, origin, ethnicity or religion? Is there any place in the justice system where this happens, or will this be unique?
When a complaint is filed against a judge, will all characteristics of the complainant be identified, whereas in the case of a woman who files a complaint of intimidation or sexual assault with a police officer, will the same characteristics of the victim be determined?
This is a question of principle for me.
Senator Dalphond, maybe you can answer my question.
Senator Dalphond: It’s not my amendment. I’ll let those who prepared it answer your questions. I am against the amendment, so don’t ask me to explain it to you.
[English]
The Chair: I take it, Senator Dalphond, that you agree with Senator Boisvenu on this point.
I’m going to invite Senator Simons to respond, but we’re not all supposed to be experts in every aspect of the judicial system. In some cases, with respect to complaints against the police, the complaints agencies will often categorize the nature of complaints — perhaps not nearly this comprehensively. I think there are locations.
[Translation]
Senator Boisvenu: I understand, but when you go to Juristat, the great Canadian system that provides disaggregated data, you’ll never find as much of a breakdown of the complainants as you would in a complaint against a judge. That is my first point.
Secondly, when a judge has access to that information, will it have a positive or negative effect? Because the scope of a complaint will be racialized — excuse the term — and I find that dangerous.
[English]
Senator Simons: I think it’s really important to clarify that this is not information that goes to a judge. This is information that will be anonymized and published in an annual report. This does not speak to the hearing conducted about the judge. This is at the end of the year, in an annual report, there will be a chart that anonymously provides this information.
It is true, Senator Boisvenu. I don’t know that every police service in the country collects data this way, although, as Senator Cotter has said, quite a few of them will provide data like this. But if other people are not doing it, I don’t think there’s anything terribly shameful about setting a new standard, because, frankly, I think this is the kind of information that we could — if the Canadian Medical Association is collecting information about complaints against doctors and if law societies are collecting information about complaints against barristers and solicitors, I think this would be a useful metric that could be adopted by many other people through the system.
Again, I want to make really plain that this is not information that comes into the discussion of how a particular judge is being disciplined or investigated. This is anonymized data that would be published in an annual report at the end of the year.
The Chair: We had a fair amount of discussion about these earlier, and there are a couple of more speakers. Unless there’s some exceptional intervention, the last word will be from Senator Dalphond.
[Translation]
Senator Dupuis: I’m going to ask our witnesses to tell me if I have read Bill C-40 correctly.
You don’t all have the bills in mind or in front of you, but it would reassure me if you could tell us, “no.” In case you do have them, the proposed paragraph 696.87(1)(b) deals with the new Miscarriage of Justice Review Commission, which is the bill to establish a Miscarriage of Justice Review Commission.
This section states that
statistics on applicants that, to the extent possible, are disaggregated by gender identity, age, race, ethnic origin, language, disability, income and any other identity factor that is considered in the course of a gender-based analysis.
I think the Minister of Justice has found a way to articulate the concerns expressed many, many times over the years about the need for disaggregated data.
There is wording here that would be interesting and for which I have asked the sponsor of the bill to intervene, inviting him to contact the minister to see whether he might consider amending Bill C-9 so that it is coherent, since we’re getting into this new kind of wording.
The proposed amendment that was tabled yesterday and that we are amending today does not take that into account, and I find that very problematic.
My question for you is, am I right in thinking that I wasn’t dreaming when I read section 696.87 of Bill C-40?
Mr. Xavier: Unfortunately, Senator Dupuis, I don’t know. I’m not familiar with that bill.
Senator Dupuis: Okay. No, I think I read it correctly. Thank you.
[English]
Senator Clement: I have a question to the officials about whether there is a technical issue with this amendment. We had a discussion about the last amendment and where it would be problematic. I understand Senator Dupuis’ point about coherence, but this is something that will force the collection of disaggregated data, which isn’t there now. We don’t review this legislation very often, and so data is everything. This is how we inform proper policy in this country and in all countries. Is there a technical problem with this section in terms of you being able to collect data?
Mr. Xavier: I’m not aware that there’s a technical issue with the collection of data per se. When I first saw the amendment, I also reacted to the fact that 86(1) seemed a bit under-inclusive in certain respects. I think it might be important to make sure that it does cover all the grounds you would want it to cover. But with the collection of data per se, there’s no technical concern as long as the council can present the data in a way that is, as Senator Simons mentioned, fully anonymized and does not inadvertently identify a particular complainant, for example. I don’t think there’s any technical concern that arises from the collection of data.
Senator Clement: Thank you.
[Translation]
Senator Dupuis: I have a quick question for the Department of Justice officials. Is the term “sexual misconduct,” which would replace the term “sexual harassment” in Bill C-9, an equivalent term?
Mr. Xavier: The two terms are not equivalent. The term “sexual harassment” is very well defined in jurisprudence, but the term “sexual misconduct” isn’t defined anywhere. It’s not defined in federal legislation or in jurisprudence.
Rather, jurisprudence suggests that it is a very broad term that includes sexual harassment, but that also includes all kinds of criminal offences. It’s fairly a broad term that doesn’t have a very specific definition.
Senator Dupuis: Thank you. That confirms what I wanted to know.
[English]
Senator Clement: I’m going to make a friendly amendment to my own amendment coming up, where I’m going to maintain the use of the word “sexual harassment” and add “sexual misconduct.” That does have an impact on this section, in particular.
The Chair: Try to hold that in suspension until we get there.
Senator Dalphond: I’m going to explain why I cannot embrace this amendment, despite the change.
I think the intent of the drafter, who, unfortunately, is not with us today, is really to single out ways to identify certain types of discrimination — ethnic origin, Indigenous identity, race and so on. Then, based on that data, the minister could, according to subparagraph (3), make recommendations based on the information contained in the annual report to establish seminars, and read seminars on discrimination because that is the only information that has to be collected. That’s my first comment.
I find that to be rather narrow. I don’t really like to try to go into detail about what should be collected or not. I have prepared draft observations that are much broader in perspective. For example, I understand the importance of trying to find out if there is a pattern behind the complaints. If people from some racialized group are complaining more often than other people, maybe that’s a sign that maybe there’s something wrong in the system. But there’s nothing about the language of the complainant and the way he was treated in court. There’s nothing about the age. There’s nothing about the education level. There’s nothing about self-representation, which is one of the sources of complaints because people don’t understand the system, they’re not assisted by a lawyer. There’s nothing about the nature of the case that was before the court. Is it a family case, or is it a settlement conference? We’ve seen in previous reports that settlement conferences are becoming a source of complaints.
We try here to have a narrow picture of something without having the full benefit of a larger picture. In my observations, I think it’s much broader. I don’t like this way of drafting it because it limits. The report has to bear these things and nothing else. I think this is not the proper way. The council’s representative before us undertook to provide information on many other items that are not mentioned here, and they are told now by the law to just provide this. Quite frankly, I would prefer that we don’t go with a kind of straitjacket which is too narrow to accomplish anything except potential discrimination based on racism and things like that but omitting a lot of other things.
The second point is that even if we delete subparagraph (4), the minister make the recommendation public in order to avoid a kind of shaming process, we go back to (3), and the minister may recommend on the basis of the information contained in the annual report that the council establishes seminars under paragraph 62(b). So far, we have, by the Ambrose bill, amended the Judges Act, and Parliament to ask the Council to establish seminars on certain topics. Now we recognize that a minister can come along and take an annual report and, based on what he finds in the annual report, he may suggest that the council establish other types of seminars. I think it’s the executive stepping in on the judiciary. I accept that Parliament can provide some instructions, as we’ve done in the Judges Act. We provide the financing also. The current minister will be succeeded by other ministers, and some ministers will be friendly with the courts and some would be unfriendly with the courts. I think we should keep the separation between the executive and the judiciary.
The Chair: Just a brief observation of my own: I support the sentiment of this amendment, but I do agree that it is prescriptive in some ways that are not particularly helpful.
I would make this additional observation. This records the characteristics of complainants, but in this process, you don’t have to be the “victim” in order to complain. If you think about the complaint of sexual bias brought against the Alberta judge who ultimately stepped down from the Superior Court, that complaint was brought by law professors in Alberta, not the actual person who was the subject of that discrimination. There is a significant collection of those kinds of complaints. The result would be that this prescription would, in a certain way, miss the mark. I’m inclined to defer to the observation that Senator Dalphond has.
Senator Simons: I understand that this is a particular series of characteristics that are enumerated. I think that is in keeping with the government’s intention to do a Gender-based Analysis Plus. The government has decided at a certain point that these are particular characteristics that it wishes to track.
I take your point, and I hope that Senator Dalphond will still make that observation, no matter what the fate of this amendment is, but an observation doesn’t have weight in law that this amendment would.
Senator Batters: Given what Senator Simons was just saying, I’m wondering if the Gender-based Analysis Plus for this bill spoke about this issue. Could the officials tell us about that?
Mr. Hoffman: If we could have a minute, we’ll look at that. Thank you for your question, Senator Batters.
The Chair: Could I clarify what we will be voting on? Is it agreed that we’re voting on the amendment as changed by the language presented by Senator Simons a short while ago? Thank you.
Mr. Hoffman: Senator Batters, for complete clarity, your question is this: Did the GBA Plus analysis consider the factors that have been raised as a possible amendment here today?
Senator Batters: Obviously they didn’t know at the time that the GBA Plus was done about a possible amendment, but just about this issue in general about disaggregated data and the need for having that sort of thing. Frankly, while certain people might think this is prescriptive, I’m not sure the visible minority people who are in these situations would consider it prescriptive.
Mr. Hoffman: Thank you for that, Senator Batters.
In terms of whether the GBA Plus analysis specifically looks at the issue of disaggregated data, I think our answer would be “no.” Did it look at some of the factors for which the purpose of collection is being proposed? Yes, it did.
Senator Batters: What does it say about that?
Mr. Hoffman: I think we had provided this as an undertaking.
Senator Batters: Right, but I’m asking you to give us a brief summary.
Mr. Hoffman: Again, I’m doing this on the fly. If I could have a minute to read through it? Thank you.
Senator Klyne: You’ve made an intervention that the complainant isn’t always necessarily the victim. Wouldn’t we be more interested in disaggregated information on victims?
The Chair: While this is being considered, Senator Klyne, that’s sort of my point. This calls for the information to be about the complainant. As well-meaning as it is, it misses the mark. A complaint about the Associate Chief Justice of the Court of Queen’s Bench of Manitoba about which there was a lengthy and controversial debate — complaints came from other sources. It’s hard to identify who might have been — excuse the term — the “victim” of the judge’s behaviour. With respect, if feels like a more complicated set of questions, and I’m more inclined to defer to the observation that a carefully crafted reporting would take this into account.
Senator Batters: On that point, of course, in these types of judicial disciplinary cases, we’re not only dealing with criminal cases where there are actual victims, but it could be many different types of things. It may be difficult to so neatly characterize people in those kinds of categories.
Senator Simons: Some complainants are vexatious litigants. We wouldn’t consider them victims at all. We would consider them problematic. It’s not about victims. I think to have the information — if five female law professors bring a complaint, I think their gender is also relevant.
The Chair: Either a quick answer, Mr. Hoffman, or we’re going to move to a vote.
Mr. Hoffman: I don’t want to take the honourable senators’ time. I’ll read verbatim. They are expected to have a positive impact on those who submit complaints related to discrimination, including based on race and gender.
Senator Batters: That’s not very full.
The Chair: We’re now at the stage of voting. Is it your pleasure, honourable senators, to adopt this motion in amendment?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
The Chair: Shall we have a roll call again?
Mr. Palmer: The Honourable Senator Cotter?
Senator Cotter: No.
Mr. Palmer: The Honourable Senator Batters?
Senator Batters: Yes.
Mr. Palmer: The Honourable Senator Boisvenu?
Senator Boisvenu: No.
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 Martin?
Senator Martin: Yes.
Mr. Palmer: The Honourable Senator Patterson?
Senator Patterson: Yes.
Mr. Palmer: The Honourable Senator Simons?
Senator Simons: Yes.
Mr. Palmer: The Honourable Senator Tannas?
Senator Tannas: Yes.
Mr. Palmer: Yes, 7; no, 6.
The Chair: The motion in amendment is carried.
We turn next to the amendment proposed by Senator Clement. A small amount of discussion has already taken place, so we’ll try to be as efficient as we can.
Senator Clement: We will try.
Hello, colleagues. I am at BC-C9-12-6-13. However, I am changing the language there. It’s being distributed.
I move:
That Bill C-9 be amended in clause 12, on page 6, by replacing line 13 with the following:
“alleges sexual misconduct or sexual harassment or that alleges discrimination”.
The Chair: The paper has been circulated to capture that language. I just wanted to confirm that everybody has or is receiving a copy of it.
Senator Clement: This amendment is about making sure that the terms “sexual misconduct” be added to Bill C-9.
Women victims and survivors have to be able to imagine that what happened to them is captured by the language in legislation so that they can come forward. “Sexual harassment” does have a legal definition, particularly in human rights legislation. This is language that women, feminists and survivors have fought to have defined and included in legislation, and we must honour that fight and those legal precedents.
However, the #MeToo era brought even more awareness and conversation about understanding that what happened to victims, women and survivors, is wrong and is actionable in some way and needs to be brought out in the open. The term “sexual misconduct,” which has been used in various spaces for quite some time now, responds well to that awareness because it can capture a broader range of behaviour, including, very importantly, the concepts of abuse of power and abuse of authority.
I want to refer to a book entitled Defining Sexual Misconduct, written by Dr. Stacey Hannem and Dr. Christopher J. Schneider. Dr. Hannem is a Wilfrid Laurier professor of criminology, and Dr. Schneider is a professor at Arizona State University. By the way, this book is on the list of Hill Times best books of 2022. A Globe and Mail article written by the authors actually provides a good summary of their analysis of sexual misconduct. I’ll quote from The Globe and Mail article from May 2022:
In 1982, in the midst of parliamentary debates of changes to Canada’s rape laws, a Globe and Mail reporter wrote that “No one seems to know what sexual misconduct is.”
Subsequent changes to the Criminal Code, which used the language of sexual assault, not sexual misconduct, did nothing to clarify the term. And yet, even 40 years later, sexual misconduct — this term with no legal definition — is everywhere.
This is a term that developed primarily through media, rather than through law, and we argue that the lack of a legal definition is precisely what gives the language and discourse of sexual misconduct and social movements such as #MeToo the power to drive change.
Many women, for example, do not know what legally qualifies as sexual harassment, and as a result are less likely to identify their own experiences as such or to label male behaviour in this way. Any behaviour that does not meet the legal standard for harassment may be interpreted as just something women have to tolerate, even if they are harmed by it.
The expanded use of the term “sexual misconduct” signals the growing social and cultural recognition of these behaviours as potentially problematic concerns, even though they might not meet the legal standard of sexual harassment or assault.
Professor Sheehy from the University of Ottawa is quoted in an Ottawa Citizen article from January 2018, and she discusses and identifies three key considerations in defining sexual misconduct: power imbalance, coercion, whether implicit or explicit, and predatory behaviour.
As part of the review of Bill C-9, we received a great brief from the Canadian Muslim Lawyers Association. It also outlines that sexual misconduct is broader and can include any sexual act or behaviour that a person does not consent to, which includes sexual harassment, but also sexual abuse or improper sexual relations based on abuse of power or authority.
I said earlier it’s been used for many years now. When we look at the National Defence Policy Directive from March 2000, updated in 2017, on the subject of sexual misconduct offences, they define sexual misconduct as an offence that:
… shall be deemed to refer to any acts that are either sexual in nature or committed with the intent to commit an act that is sexual in nature and is an offence … This would include offences such as sexual assault, voyeurism and sexual harassment.
As a result of that policy, they created the Sexual Misconduct Action Response Team.
I also want to reference the Ontario Courts of Justice Act, which uses both “sexual misconduct” or “sexual harassment.” I asked the question of Ms. Warner, registrar for the Ontario Judicial Council. I’ll read her answer. I asked her about the use of both terms in that legislation. She says:
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 …
The argument here is to include sexual misconduct, not exclude sexual harassment since there have been so many legal definitions and legal precedents around those terms, and to be able to send the message of clarity to victims, women, survivors out there that happened to them can be captured by this legislation. Forty years into using it, it is still everywhere and is still understood by a large number of people.
Senator Dalphond: I understand the concern. I think “sexual misconduct,” as vague a term as it is, is maybe a new concept coming up. Hopefully, it will be defined in the future in such a precise way that we will know exactly what it encompasses. I think I read the same article as you in the Ottawa Citizen from Elaine Craig, Associate Professor at Dalhousie, who said:
Sexual misconduct is a lay term, sometimes used in institutional policies or by professional bodies. It covers an array of problematic sexual behaviour including sexual harassment, sexual assault and sexual abuse.
I also noticed what Senator Clement referred to, namely, the comments of Elizabeth Sheehy, who said:
Sexual misconduct is a social issue and not a fixed line — it shifts as women gain access to economic and political equality. It’s not found under criminal law, in human rights codes, or collective agreements. It might be found under professional disciplinary codes.
It’s clear that we don’t have consensus on it, either.
We are proposing to introduce a vague concept here, fortunately not in replacement of a defined concept but in addition to a defined concept. I am not in agreement that we should not speak further about sexual misconduct, but we are dealing with the provisions in proposed section 90 which you find at page 6 of the bill. It deals with subparagraph 3 and with the screening officer, a person who is doing a purely administrative task. That person, the screening officer, “shall not dismiss a complaint that alleges sexual harassment, or sexual misconduct, or that alleges discrimination on a prohibited ground of discrimination within the meaning of the Canadian Human Rights Act.”
We were told, both yesterday and when we heard from witnesses from the council, that they have hired new people and they are going to have the ability to hire lawyers, so they will be the screening officers. If we include a concept that is not defined as being what they can or cannot do, what will these screening officers decide? It must be made very clear that if it:
(a) is frivolous, vexatious or made for an improper purpose …;
(b) was not made for a reason referred to in paragraphs 80 (a) to (d); or
(c) does not meet the other screening criteria specified by the Council.
That’s a checklist. It’s about the provincial judge and about the content of the judgment, so it should be an appeal. It’s meant to be easy. It’s meant to apply to more than half of the complaints that the council receives every year, and it is the same in Ontario. More than half of the complaints are just closed at the screening process.
It has to be a process which is very easy to apply. If we introduce into it a concept which is vague and undefined, it may lead to maybe some incongruous results. If it’s a matter of sexual misconduct, everyone seems to agree that sexual harassment is on the light side of the spectrum in terms of sexual misconduct. When you go to the other end of the spectrum, you have sexual assault and sexual abuses and so on. If there is an allegation of sexual harassment, or other things, it will be turned around and it won’t be rejected. I don’t like introducing a vague concept in something that has to be without discretion — something that is supposed to be an administrative task. I’m not saying that if a judge commits sexual misconduct that it should not be the subject of complaint and judicial conduct review. I’m just saying that the provision here is strictly an administrative step, and it should be clear what the screening officer has to do.
The Chair: Thank you, Senator Dalphond.
Senator Simons: First, it’s important to say that women are not the only victims of sexual harassment or sexual misconduct. Men can be victims too — victimized by other men or victimized by female jurists, frankly. I don’t want people to think that this is a “feel sorry for the poor little girls” kind of argument.
It’s also really important to remember that sexual misconduct doesn’t just have to be worse than sexual harassment. Suppose you have a situation where you have a judge who is sleeping with his or her clerks. That could well be sexual misconduct even if that sexual relationship is “consensual.” Given the power imbalance, that might not be something that could ever be legitimately consensual. However, if a 26- or 27-year-old clerk is sleeping with a judge, that might be an allegation of sexual misconduct that would not be sexual harassment — especially because we have just accepted the other amendment that uses the language of sexual misconduct.
The very vagueness and elasticity of the word gives people an understanding that there are all kinds of actions that can be taken that are not harassment. Harassment always implies to me sort of a nagging, poking thing, whereas sexual misconduct covers a much wider range of failures of the human condition.
Senator Batters: I support this amendment. I don’t find “sexual misconduct” to be at all a new term. I have been a lawyer for almost 30 years. I think this term has been around for most of that time, particularly coming more into focus in the last several years with the #MeToo movement and things like that.
Also, I note that in the quote that Senator Dalphond was reading out from Professor Sheehy, I noted that it said something like we see this term “sexual misconduct” used in disciplinary proceedings. Well, that’s what we’re dealing with here.
I don’t think that this is a vague concept in the least, especially to women who have to contend with this all too often. Yes, it’s not only women, but in many cases it is. I think it’s important to have the appropriate language dealt with in this act that we’re revamping, after so many decades of it not being revised, dealing with judicial disciplinary proceedings. To expand that language is more appropriate than to simply have it as a more limited concept.
Senator Klyne: I am going to support this. I think that sexual misconduct exists on a spectrum that may include a broad range of sexual behaviours considered unwelcome. It’s the “considered unwelcome” behaviour that needs to get wrapped into this. Again, at the expense of being repetitive, misconduct or sexual misconduct does exist on a spectrum that includes sexual harassment. It’s also the issue of sexual behaviours that are considered unwelcome that need to get wrapped into this. The concern is that repetitive occurrence goes on without getting stopped.
The Chair: Thank you.
[Translation]
Senator Dupuis: You will understand that I am glad that the days of the 1990s, when a judge on the bench could say that women are like laws, that they are meant to be violated, are a thing of the past. That is a good thing, if I may say so.
I think the amendment, especially the one reworded by Senator Clement this morning, so that the gains, if I can put it that way, that represent the years of jurisprudence that have interpreted the term “sexual harassment” are not lost, is entirely welcome.
I think that, since laws are the expression of society’s values, values have changed. A part of the population is happy about it. I won’t put a gender label on the part that’s happy about it, but part of the population is happy about it, and I’m among them.
In that sense, I think we need to make it clear that there are not only sexual harassment issues as defined in jurisprudence to date, in 2023, but there is a range of sexual conduct. In other words, I think we need to help judges interpret the law and, in that sense, I think the amendment is welcome.
[English]
The Chair: Thank you, Senator Dupuis.
Senator Dalphond: I don’t want to be misunderstood. To change “sexual harassment” to “sexual misconduct” would be a mistake, but if we add it, I think we will expect that the council, which has the power to establish criteria for the screening officers, will provide the criteria, a kind of definition of what will be a sexual misconduct. I think if they have a complaint that reads like a sexual misconduct, then it should be easy to decide do they open a file or not? And if it’s alleged sexual misconduct, we should open a file. I never said to the contrary.
Senator Jaffer: May I have a clarification of what you are saying? Sorry, I apologize.
The Chair: You’re not opposed to the amendment?
Senator Clement: I have nothing to refute, Mr. Chair.
The Chair: Senator Jaffer does have an observation to make.
Senator Jaffer: Just out of interest, you say that the officer will look at it, but then they won’t have the right to just say, “No, we’re not going to look at it,” or, “This would be one that would go to be studied further”?
Senator Dalphond: Yes, because the only power the screening officers have is to discard what doesn’t fit in the system.
Senator Jaffer: Okay. Perfect.
Senator Dalphond: When the words “sexual misconduct” appear in the complaint, they will say, “I have to pass it along the line.”
Senator Jaffer: Yes. I just wanted to —
Senator Dalphond: It will continue instead of ending.
Senator Jaffer: Thank you. I just wanted to make sure. Thank you.
The Chair: I think that exhausts the discussion of this one. I’m going to express this view.
It’s moved by Senator Clement that the bill be amended on clause 12, page 6, in the language that she described this morning, which I can read out but I think it’s fairly clear, “alleges sexual misconduct or sexual harassment or that alleges discrimination.” Is it your pleasure, senators, to adopt the motion in amendment?
Hon. Senators: Agreed.
The Chair: I declare the motion in amendment carried.
The next motion is again Senator Clement, C9-12-6.
Senator Clement: Thank you, Mr. Chair. I move:
That Bill C-9 be amended in clause 12,
(a) on page 6,
(i) by adding the following after line 15:
“(4) If the screening officer dismisses the complaint, they shall
(a) give notice of their decision and the reasons for it to the Council; and
(b) inform the complainant in writing of their decision and the reasons for it.
(5) The reasons shall not include information that is confidential or personal, or that is not in the public interest to disclose.
90.1 The Council shall make public the screening officer’s decision and the reasons for it, as soon as feasible after receiving them.”,
(ii) by replacing lines 33 and 34 with the following:
“they shall
(a) give notice of their decision and the reasons for it to the Council; and
(b) inform the complainant in writing of their decision and the reasons for it.”;
(b) on page 7, by adding the following after line 3:
“94.1 The Council shall make public the reviewing member’s decision and the reasons for it, as soon as feasible after receiving them.”;
(c) on page 9, by adding the following after line 6:
“103.1 The Council shall make public the review panel’s decision and the reasons for it, as soon as feasible after receiving them.”.
This amendment is about transparency and trust in our institutions. This is a subject that comes to mind almost every day in this place. It comes to mind in all of the spaces on the Hill. I am also confronted with this issue of trust in our institutions in my home community of Cornwall and when I was mayor or when I sit down with my clients at the legal aid clinic. People need to see that governments, the people in authority, the people with power — whether they are elected or appointed or hired — are making transparency a core principle and a core value and that they are thinking about it and balancing it out with the need for privacy.
I’m going to refer again to the excellent brief from the Canadian Muslim Lawyers Association, which we received as part of our review of Bill C-9. It properly quotes a case, CBC vs. New Brunswick, 1996 Supreme Court of Canada case.
The importance of ensuring that justice be done openly has not only survived: it has now become “one of the hallmarks of a democratic society” … The open court principle, seen as “the very soul of justice” and the “security of securities” acts as a guarantee that justice is administered in a non-arbitrary manner …
These amendments are about looking at the three review processes in Bill C-9. You have the screening officer, you have the reviewing member, and you have the review panel.
I’m going to start with proposed section 103, which is the review panel level. Bill C-9 already in that section contains language that talks about the communication of the dismissal.
In 103 as it currently stands:
(2) If the review panel dismisses the complaint, it shall inform the complainant in writing of its decision and the reasons for it.
(3) The reasons shall not include information that is confidential or personal, or that is not in the public interest to disclose.
That’s already in 103. This amendment adds to 103, which is the review panel level, that the council shall make public the review panel’s decision and the reasons for it as soon as feasible after receiving them. Now, the use of the words “as soon as feasible” is really because the act already includes that language in several sections.
When we go to the next level, which is the reviewing member level, we’re in proposed section 94. What we do there is add what is already in 103, so they shall give notice of their decision and reasons for it to the council, inform the complainant in writing of their decision and the reasons for it, and they shall make public the reviewing members’ decision and the reasons for it as soon as feasible after receiving them. So it’s the same as what would be at 103.
And then when we go to the screening officer level — and that’s in proposed section 90 — we’re repeating the same thing around giving notice of their decision and the reasons for the dismissal to the council, informing the complainant in writing of their decision and the reasons for it. The reasons shall not include information that is confidential or personal or that is not in the public interest to disclose. Again, there is that added section that the council shall make public the screening officer’s decision and the reasons for it as soon as feasible after receiving them.
It’s about having a similar process at all three levels of review: communicating the dismissal, communicating to the complainant, making it public as soon as feasible after receiving it. It is the same at the review panel level, the reviewing member level and the screening officer level. Having it that way, mirrored identically in each section, means that you are not going to have the effect of — if you are only doing it at the last level, there might be an incentive to dismiss because if you know that they are going to be made public at the last level, you may want to get rid of those at the first levels. The idea there is to have the same language, the same process, at all three review levels.
The act of making it public is not an endorsement by the CJC of the content of the complaint; it’s so that complainants know that their case was reviewed meaningfully. It also stands as the work of the CJC. It shows that the CJC is doing its work in meaningfully reviewing complaints.
I want to end by quoting Mr. Panju, because I was particularly persuaded by his testimony and his brief:
In terms of dismissals of different complaints, as you know, there are a number of stages — perhaps too many stages — complaints can go through. One of the concerns is that the CJC can already dismiss a complaint at any stage, but the requirement for reasons only applies later on down the process. The impact of that is that if complaints are being dismissed earlier on — perhaps they are meritorious, but they are being dismissed — there is a lack of public awareness and public transparency. One of our primary recommendations is to ensure that reasons are provided publicly for all sorts of dismissals so there is some accountability, both for the judges as well as for the CJC.
Senator Dalphond: I understand what Senator Clement is trying to achieve. I don’t know if she considered proposed section 87 of the bill, which is on page 5. It says, “The Council shall establish policies respecting the notifying of complainants of any decisions made under this Division.” There is already a prescription made to the council to report the complainant. That includes, as well, the examiner and the screening officer. This is my first point. This is the overall principle. The witnesses from the council who came before us said it was current practice that the screening officer send a letter of explanation.
I notice that you want to be very prescriptive in the amendment. I understand the spirit. Time is running, and I could explain why all of that is not necessarily okay. For example:
(4) If the screening officer dismisses the complaint, they shall
(a) give notice of their decision and the reasons for it to the Council …
It’s an employee. It’s not an independent board. The review board and the public hearing committee are two separate boards from the council. They are independent. They have to report their conclusions to the council because they are not civil servants working for the council. I find that it’s micromanagement of the relationship between the employee and the council, assuming this employee is so independent he has to report to the councils.
The second thing is to “inform the complainant in writing of their decision …” This is what 87 requires, and that is the practice. If you think it’s absolutely necessary to add it now for the bill to go through — there is 90(1):
The Council shall make public the screening officer’s decision and the reasons for it, as soon as feasible …
He dismisses about 400 complaints per year. If he dismisses, the council has to immediately publish that complaint number 256 was dismissed today because it was related to a provincial court judge. I don’t know why it cannot wait until the end of the year and the annual report. If the screening officer says, “It’s not one of the three reasons why I should screen it out, so it has to go to the examiner because it refers to sexual harassment or something of that nature,” then the council will have to render public the decision of the screening officer to say, “I let it go to the examiner because I think it’s possibly a case of sexual harassment.”
Fine. If that’s what you want to have, I’m not going to object, because time is running out. Let’s adopt it, if you want, and let the government respond to it and fix it. Quite frankly, with 20 people around the table trying to fix something that is so detailed and so in need of fixing, I give up.
Senator Batters: This is precisely the reason that some of us were suggesting that the minister consider these types of amendments prior to us going to clause-by-clause.
I believe this is something on which Professor Devlin had provided us substantial information. He indicated that he thought this was a needed fix as well. Referring to the brief that he provided, talking about the reforms that are required, it says that screening officers should also have a duty to give reasons if they dismiss a complaint, that complainants should have a right to request reconsideration of a decision to dismiss a complaint and that the complainant should have a right to be kept reasonably informed of the progress of their complaint. These are the types of things that Professor Devlin felt necessary to address in the bill in order for the bill to be the best that it can be.
I’m not sure why we’re talking about running out of time. We’re not running out of time. This committee is almost completed for today, but we have the ability to come back. This bill hasn’t been amended for a very long time, and I think it’s important that we do it right.
I will be supporting this, for some of the reasons that I just listed by Professor Devlin.
Senator Jaffer: Returning to what Senator Batters is saying, I want to go further. I don’t want it to be seen that we gave up because we ran out of time. We have time. We can come back. I believe in what Senator Clement has said, and that’s why I’m supporting it — not because we ran out of time.
Senator Dalphond: I won’t comment on the other provisions because I think this is unnecessary at this stage. But take “The Council shall make public the review panel’s decision and the reasons for it, as soon as feasible after receiving them …” The judge who is subject to sanctions by the review panel has the right to go to a reduced hearing as an appeal. but the decision has to be rendered public, even if it’s not final. It might be reversed. I’m sorry to say, but I don’t think that the drafter has a complete grasp of the mechanics.
These things have to be fixed, obviously, and I understand the purpose of it, but on top of that, there is the decision of the Federal Court of Appeal in Slansky that talks about the principle of judicial independence and that you cannot release everything and it should be left to the discretion of the council to release or not. This runs against the decision from the Federal Court of Appeal.
At this stage, I leave it to the Department of Justice to review it carefully when we send it back.
The Chair: I’m going to hear briefly from Senator Dupuis and then Senator Clement, and then we will have to call it quits for today — voting on this, ideally — but we’ll have to return for the balance of the amendments.
[Translation]
Senator Dupuis: I will be very brief. I see our job as being our responsibility and our responsibility to look as thoroughly as we wish at the bills that are before us. That’s what we are doing, and I think we agree that we should continue to do so.
[English]
The Chair: Senator Clement, on the substance of the amendment.
Senator Clement: Yes. I appreciate Senator Batters bringing up Professor Devlin. His testimony was also compelling on the transparency piece.
In response to Senator Dalphond, the idea of codifying practice is a good thing. It means that we’re sending a strong message that this is what we want in the legislation.
I will add that you’ll remember that the testimony is that the annual general reports started out fulsome and then, over the years, were providing less and less information, so to rely on annual general reports as a way to ensure transparency I don’t think is satisfactory.
The Chair: If we’re comfortable to spend another minute or two, I have no more speakers and would like to call a vote on the amendment, if we may.
I can read out the number of it again. It is moved by Senator Clement that Bill C-9 be amended on clause 12 at pages 6, 7 and 9. Is it your pleasure, senators, to adopt the motion in amendment? Those in —
Some Hon. Senators: Agreed.
An Hon. Senator: On division.
The Chair: On division.
This brings us to the last but two related amendments, by my score. We won’t be able to deal with them today. My suggestion is that we identify a time at the very beginning of the next meeting to deal with those amendments and observations. I’m going to invite us to try to do that work within one hour so that we can preserve time for continuing the business of the committee. They are related amendments that Senator Batters will advance concerning an intermediate level of appeal to the Federal Court of Appeal interjected into the bill. A fair description, I think.
This will also call for us to have a steering committee meeting in the next number of days, not today, to chart our course because we do have the budget bill to consider, or the components that are relevant to our committee.
If that’s acceptable, to declare us having gotten this far, I want to thank all of you for your contributions. Once again, thank you to the witnesses who have joined us and helped us out in our deliberations, and I’m going to declare the meeting adjourned.
(The committee adjourned.)