Judges Act
Bill to Amend--Message from Commons--Motion for Non-Insistence Upon Senate Amendments--Debate
June 21, 2023
Moved:
That, in relation to Bill C-9, An Act to amend the Judges Act, the Senate do not insist on its amendments with which the House of Commons disagrees; and
That a message be sent to the House of Commons to acquaint that house accordingly.
He said: Honourable senators, I am pleased to rise at the stage of the message from the other place in response to the amendments proposed by the Senate to Bill C-9, which seeks to overhaul the process for reviewing complaints of misconduct against federally appointed judges.
First, I would like to thank the bill’s sponsor, Senator Dalphond, as well as Senator Batters, who served as critic. I also want to thank all of the senators who participated in the study and the debates on this important initiative. Although we do not all agree on some details of the bill, it is clear that we share the objectives of the government and the federal judiciary.
I will keep my comments relatively short. I will try to explain the message from the other place and briefly share the government’s position on the Senate amendments. Since Senator Dalphond is an expert on the matter and the sponsor of the bill, I will let him provide you with a more detailed analysis of some of the key aspects of the message.
Bill C-9 was meticulously crafted following extensive consultations with judicial stakeholders and the legal community, as well as members of the public. It enjoys the support of core judicial institutions such as the Canadian Judicial Council, which is at the heart of the disciplinary process that the bill seeks to reform.
The current version of Bill C-9, which now includes some of the amendments proposed by the Senate, accurately reflects these consultations.
In the message to the Senate, the other place accepts two of the amendments adopted by the Senate.
First, the members of Parliament supported our amendment that removed the words “as far as possible” from the text proposed in clause 12 of the bill for section 84 of the Judges Act.
The provision in question requires the Canadian Judicial Council to do its utmost to reflect the diversity of the Canadian population in drawing up the list of puisne judges and the list of laypersons from which the decision makers for the various stages of the proposed new process will be chosen. This amendment, proposed in committee by Senator Clement, will help reinforce the message in our legislation that, as parliamentarians and as Canadians, we value the great diversity of our country and want to see it reflected in our institutions, including the decision‑making bodies of the new judicial disciplinary process.
The other place also welcomed another Senate amendment proposed at the Senate committee, also by Senator Clement, to add allegations of “sexual misconduct” to the list of the types of complaints that cannot be dismissed by a screening officer and must be reviewed by a panel member.
The other two types of complaints covered relate to the allegations of sexual harassment and allegations of discrimination on a prohibited ground of discrimination under the Canadian Human Rights Act. The spirit of this amendment is consistent with the general objectives of the bill and would not interfere with the operation of the new judicial disciplinary process.
These are two tangible and positive contributions from the Senate that, in the government’s view, are consistent with the purpose of Bill C-9, and the government was happy to endorse them.
The remaining amendments made by this chamber were not endorsed by the government and were respectfully declined by the other place. The government genuinely appreciates the constructive spirit in which these amendments were proposed; however, taken together, the government has come to the view that the remaining amendments risk undermining the core purposes and objectives of Bill C-9, and they do this in three ways.
First, the remaining amendments would upset Bill C-9’s delicate balancing of confidentiality and transparency imperatives during the initial investigative stages of the new judicial conduct process. Bill C-9 includes important transparency guarantees that reflect the public’s right to open proceedings, as well as important confidentiality safeguards that protect the privacy rights of complainants, judges and potential third parties who may be implicated in complaints. This chamber’s amendments would have upset this delicate balance by requiring disclosure of all decisions made at the earliest stages of the process, even where proceedings have yet to conclude. More significantly still, those Senate amendments lack safeguards to ensure that the council can protect the identity of complainants who fear reprisals from the subject of a complaint.
The same set of amendments require the collection and public disclosure of information for the purpose of requiring the Minister of Justice to turn his mind to whether he should recommend to the Canadian Judicial Council that new judicial education seminars be established based on this information. Colleagues, since the minister can speak to the council at any time about judicial education opportunities, such amendments are superfluous. Moreover, as amendments whose primary objective is the establishment of new judicial education opportunities, the government is also of the view that they go beyond the scope of the bill.
The second shortcoming of amendments to this bill concerns the proposed involvement of laypersons, defined as persons with no legal background in legal decision making. Colleagues, the important contribution and added value of laypersons to processes such as this one are indisputable. That said, striking an appropriate balance between the benefits of lay participation and its inherent limits is essential. The involvement of laypersons is most appropriate and helpful in bolstering public confidence at the fact-finding stages of a complaints process, that is, the stage where facts are ascertained, findings of misconduct are made and appropriate sanctions are imposed. That is precisely where Bill C-9, as returned to us from the other place, proposes to involve lay persons.
This chamber’s amendments jeopardized this carefully calibrated equilibrium by assigning lay persons to decision-making functions where legal training is either essential or a significant asset. Most troubling of all, this amendment put lay persons on appeal panels — this in a process where appeal panels are designed to function like appellate courts, with their work overwhelmingly focused on correcting errors of law. To be clear, lay persons involved in the new judicial conduct process will be highly qualified people; and while they have no experience as a lawyer or judge, their most essential qualification will be, and must remain, that they bring their experience and perspective to assist in fact-finding, and their ability to bring an outsider’s perspective to the key fact-finding stages of the process.
Finally, and most seriously, Senate amendments threatened to reintroduce into the new judicial conduct process most of the costs and delays that Bill C-9 is specifically intended to address. Addressing the unacceptable costs and delays of the current process is this bill’s single most important objective. The main reason for these costs and delays is simply that the current process is outdated.
Although the council’s complaints process must be judge-led and, indeed, includes a majority of sitting judges at every decision-making stage, its decision-making bodies are technically not courts. They are administrative decision makers and should remain so in order for them to function with the degree of procedural flexibility that a complaints process typically requires. However, in Canada, court review of administrative decision makers is a constitutional imperative, and so, judge-led or not, those subject to the judicial conduct process have a right to have its decisions reviewed by a court.
In a nutshell, it is effectively this constitutional requirement for court oversight that allows a judge who disagrees with a Canadian Judicial Council, or CJC, recommendation for removal made to the Minister of Justice to seek judicial review of that recommendation. By operation of the Federal Courts Act, the judicial review must be brought in Federal Court. The Federal Court’s decision can be appealed as of right to the Federal Court of Appeal; and, from there, leave to appeal can be sought from the Supreme Court of Canada.
At the same time, for reasons of judicial independence, the judge who is the subject of conduct proceedings has a right to counsel paid from the public purse. The combination of this right to counsel with lengthy judicial review proceedings that follow an already-lengthy public inquiry process has produced not just unreasonable delays in resolving serious cases of judicial misconduct but also unreasonable costs. These costs have, in some instances, quickly climbed into the millions of dollars. A process that allows for such costs and delays inevitably comes to be seen as falling short. Ultimately, these problems are principally responsible for eroding public confidence in the judicial conduct process, and this must be corrected.
Bill C-9’s two-step answer to this dilemma is as elegant as it is straightforward.
First, make the decisions of the public hearing body in charge of hearing the evidence and making findings of misconduct — called “hearing panels” by Bill C-9 — appealable as of right not to a court, whose procedures are less flexible because they must apply to all appeals they hear, but to an administrative body — one still composed of judges but whose procedures can be tailored and optimized to ensure the most expeditious appeal process possible. Give this body, this appeal panel, all the powers of a provincial court of appeal and ensure that it does its work, in every way that matters, like an intermediate appellate court.
Second, to satisfy the requirement of court oversight, make this appeal panel’s decisions reviewable directly by the Supreme Court of Canada with leave of the court, like the decisions of true intermediate appellate courts.
Taken together, this set of measures neatly solves the problem of unreasonable costs and delays in a way that fully meets the requirement of court oversight of administrative processes. A judge accused of misconduct effectively gets a trial held by a hearing panel; then an automatic right of appeal to an appeal panel that functions, in every way that matters, like an intermediate appellate court; and then the opportunity to appeal to the Supreme Court of Canada with leave of the court.
Colleagues, if this set of steps sounds familiar, that is because it mirrors what every Canadian gets in every area of the law: a trial, an appeal as of right and a right to apply for leave to appeal to the Supreme Court. The only difference is that the hearing and appeal provided for by Bill C-9 technically remain administrative in nature so that their procedures can be optimized to be as efficient as possible while meeting the requirements of procedural fairness applicable to administrative proceedings and guaranteed by the basic principles of our constitutional regime.
Unfortunately, in the view of the government, an amendment was brought forward to add a second intermediate appellate level that will duplicate the work of the first by making the decisions of appeal panels appealable as of right to the Federal Court of Appeal. Unlike any other Canadian in any other area of law, a judge subject to discipline proceedings would thus have a right to two appeals at the intermediate level — one to an appeal panel followed by one to the Federal Court of Appeal — before applying for leave to appeal to the Supreme Court.
Since the appeal panels provided for by Bill C-9 are meant to function like an appellate court, a second right of appeal to the Federal Court of Appeal would be entirely duplicative. More than that, based on the timelines for appeal at the Federal Court of Appeal, it would add, at best, approximately one year to a year and a half to the resolution of judicial misconduct cases, including those where removal from office is at issue. Finally, because Bill C-9 calls for the appointment of a quasi‑prosecutor — also paid from the public purse — to argue the case against the judge, the taxpayer will be on the hook for the legal fees of all counsel involved in appeals to the Federal Court of Appeal.
In other words, these amendments would counterproductively reintroduce most of the costs and delays that Bill C-9 was designed to remove in order to restore public confidence in judicial conduct proceedings. For these reasons, the government and the other place have not accepted these changes.
Honourable senators, Bill C-9 is a good bill. It is also an essential bill for correcting significant gaps within the current judicial conduct process, gaps that significantly undermine public confidence.
As Chief Justice Richard Wagner of the Supreme Court of Canada indicated on June 13, during his update on the work of the court, the Canadian Judicial Council cannot change its process of its own volition; only Parliament can do that.
Bill C-9 is the third iteration of the legislation and is long‑awaited.
As Chief Justice Wagner said:
Bill C-9 proposes a transparent and efficient process for dealing with allegations of misconduct by federally appointed judges, a process that is fair to both judges and complainants.
Senators, the courts want Bill C-9 and the courts need Bill C-9. They have needed it for a long time. I urge senators to get the bill to them by supporting the message of the other place so that it may receive Royal Assent before the summer adjournment. Thank you very much.
Honourable senators, I rise to speak to the message from the House of Commons on Bill C-9, an act that will update the process of judicial discipline of federally appointed judges. Bill C-9 would significantly change this process for the first time in more than 50 years. Under the new process, complaints against federally appointed judges would be considered only by hearing panels established by the Canadian Judicial Council rather than a series of appeals to the Federal Court and Federal Court of Appeal. Ultimately, a judge undergoing this process could, as a last resort, apply for leave to appeal to the Supreme Court of Canada.
Recently, Chief Justice Richard Wagner of the Supreme Court of Canada stated his desire that Bill C-9 would pass quickly given that the bill has been before Parliament in several iterations. But the delay on this reform of the judicial disciplinary system rests with the Trudeau government. The first bill, Bill S-5, died on the Order Paper when the Liberal government called an unnecessary election. The Liberal government then introduced the bill again in the Senate as Bill S-3 — incorrectly, as it involved the expenditure of money. So it was then withdrawn and reintroduced as Bill C-9.
In any case, the Senate Legal Committee studied Bill C-9 for more than double the amount of time that the Justice Committee in the House of Commons did. The Senate Legal Committee senators passed six reasoned, well-formulated amendments based on the evidence we heard from expert witnesses at our committee. The Senate Chamber then passed the bill containing our committee amendments to the House of Commons. Casting aside both the Senate’s common sense and the overwhelming committee evidence supporting the amendments, Minister Lametti accepted only two minor amendments from the Senate and rejected all the rest.
It feels a bit like déjà vu, honourable senators. Once again, our Senate has invested considerable effort in studying important issues, and once again, the Trudeau government has effectively told the Senate to pipe down and fall in line. Do they want sober second thought or not? The Trudeau government is treating the Senate as a glorified rubber stamp. In fact, the Trudeau government’s whole dismissive attitude toward the Senate has been on display throughout this bill’s progression through Parliament.
As the critic of Bill C-9, I was surprised to learn through a media report that the Minister of Justice intended to reject some of the Senate’s amendments on this bill. The comments in this media story weren’t even from the minister himself, but from his press secretary. Of course, this was long before Minister Lametti tabled his response to the Senate amendments with the House of Commons. His press secretary gave no specific indication as to which amendments would be rejected or why.
Honourable senators, this is not how messages are supposed to be transmitted between the chambers. But it is in keeping with how Minister Lametti has dealt with the Senate on this bill.
During our Senate Legal Committee hearings on Bill C-9, Senator Dalphond seemed to indicate that government amendments would be coming on this bill, but then he walked it back at the next meeting. An Independent Senators Group member on the committee moved a motion calling for Minister Lametti to appear at our committee a second time to explain problems with the bill that had become evident after weeks of study, and the Legal Committee passed that motion. But Minister Lametti refused. That is virtually unheard of in the last 10 years I’ve been on the Senate Legal Committee.
So, we went to clause by clause, and some major amendments passed, which were fully supported by substantial witnesses and committee testimony. Since the judicial disciplinary provisions of the Judges Act haven’t been amended in 50 years, we wanted to make sure we did it right. Therefore, as senators, we exercised our sober second thought. That’s the Senate of Canada. That’s Parliament.
During the debate on the Senate’s message, Minister Lametti said he was “. . . disappointed to see the results of their second thoughts.” It’s unfortunate that the Minister didn’t exercise a little “sober second thought” of his own before he said later that night in the House of Commons:
. . . I have a healthy relationship with the Senate. I sometimes joke that I am there more often than some of its own members, but I will not say that in the other place.
Honourable senators, this Trudeau government’s disdain for the Senate is no laughing matter.
Even the manner in which Justice Minister Lametti referred to the Senate amendments was dismissive. Normally, the minister acknowledges that the amendments he accepts from the Senate are good and important. But his comments on those amendments in the House of Commons last week were lukewarm. Minister Lametti’s remarks weren’t exactly a ringing endorsement, even though those two amendments made his bill better.
I thought the minister was joking again when he stated this during his speech:
Bill C-9, as adopted unanimously in the chamber, is a balanced, carefully considered and meticulously crafted bill that was born of extensive consultations with judicial and legal stakeholders, as well as members of the general public.
“Meticulously crafted”? First, the two amendments Minister Lametti did accept were, in fact, correcting drafting errors that the government should have corrected itself with its own amendments, but refused. Those two Senate amendments could have been avoided altogether if the Trudeau government had done its job properly.
And about the government’s “extensive consultations” on this bill, the public consultation on this issue was done in 2016 — seven years ago — and consisted of an online survey with only 74 responses and reviewing some letters written to the justice minister on the issue. That’s hardly extensive. Most of the provincial governments the Trudeau government consulted with on this issue in 2016 have since been replaced by governments of a different affiliation.
We heard over the course of our study about a number of groups who were not directly consulted by the government on this process, including the Canadian Muslim Lawyers Association, The Advocates’ Society, the Roundtable of Diversity Associations and the Canadian Association for Legal Ethics. No doubt there are others.
Senate Legal Committee heard from many of these expert witnesses during our study of Bill C-9. They provided us with much valuable information and even proposed amendments to improve the bill. I proposed two significant amendments, which were passed by the Legal Committee and then subsequently passed by the Senate Chamber. One was to include laypersons in every stage of the disciplinary process, and the other was to reinstate the Federal Court of Appeal in this process before a judge can apply for leave to the Supreme Court of Canada, where this permission is granted very rarely — only in about 7% or 8% of cases. Both amendments were rejected by the Trudeau government.
Minister Lametti stated that he rejected some of the Senate’s amendments because they:
. . . run counter to the bill’s central objective of restoring public confidence in the judicial conduct process. As a result, these amendments, quite simply, would defeat the purpose of this bill. Bill C-9 is critical to ensuring nothing less than continued public confidence in the independence of our judiciary and, by extension, in our system of justice.
But the minister is entirely wrong on this point. The two amendments I passed will actually increase the confidence of the public in the judiciary and the justice system as a whole. Take, for example, my amendment to increase the participation of laypersons at every stage of the new judicial conduct process. Minister Lametti himself admitted at Senate Legal Committee that feedback from public consultations revealed strong support for greater public participation by laypersons. Having public representation at every stage of the process brings a different lens to the judicial misconduct process and its public impact. It would strengthen public oversight and bolster confidence in the justice system.
Contrary to the belief of some, lawyers don’t actually know everything, and, colleagues, I say that as a lawyer. But Minister Lametti’s and the Trudeau government’s dismissal of my laypersons amendment smacks of elitism and an out-of-touch government. In his response to the Senate message, Minister Lametti defined laypersons as “people who do not have the training required to address matters of law.”
He said:
. . . the Senate proposed to add laypersons where they should not bring their perspectives. This would undermine the effectiveness and fairness of the new process in the bill . . . .
The message is clear: This Trudeau government and this justice minister think that only lawyers’ opinions count. The fact is that laypersons bring a valuable and unique perspective. There are enough legal professionals on each of the panels in this process to be able to sift through finer points of law. The addition of a layperson to each will not upset that balance, as the minister puts it. It will only enhance the public’s confidence in the system to have laypersons present at every stage of the process. And the public must have confidence, since judges judge the public.
Many professional organizations involve laypersons in their disciplinary processes. The Ontario Judicial Council testified before our committee that they have lay people on all levels of their disciplinary panels. The Law Society of Saskatchewan has lay people on their disciplinary panels for lawyers. At committee, Senator Clement recounted an example from her past work with the Workplace Safety and Insurance Appeals Tribunal, which includes the participation of laypersons.
Several Senate Legal Committee witnesses testified about the need for this inclusion, among them professor Richard Devlin of the Canadian Association for Legal Ethics, who has published two books on judicial discipline. He said that “insufficient lay representation in the process” compromises “the principles of impartiality, independence and representation.”
Including laypersons at every stage of the judicial conduct process will bolster public confidence in the legal system, not diminish it. My amendment won handily at the Legal Committee by a vote of 8 to 4, with one abstention and with the support of a clear majority of groups in the Senate.
My second amendment — inserting the Federal Court of Appeal at the end of the judicial misconduct process, before applying for leave to appeal to the Supreme Court of Canada — would provide another major avenue through which points of law could be considered. For this reason, these two amendments pair very well together, and my amendment to include the Federal Court of Appeal would further augment public confidence in the judicial misconduct process. It is a mistake for Minister Lametti to equate disciplinary panels with an actual court. Including a court in the disciplinary system can provide precedential value of decisions — which is something that hearings do not.
Again, that would strengthen oversight of the process and provide public confidence in the system, while addressing the need for fairness for a judge facing dire consequences to appeal.
This amendment was suggested by The Advocates’ Society, which represents more than 6,000 lawyers, judges and advocates. It was supported by the largest lawyers’ association in Canada — the 37,000-member-strong Canadian Bar Association — whose president testified before our Senate Legal Committee, which is something that we rarely see. The Canadian Superior Court Judges Association — a body of 1,200-plus judges — also indicated its support for this. These associations and organizations recognize that including the Federal Court of Appeal would bolster confidence in the process, both for the public and for judges. The minister can’t summarily dismiss that kind of legal gravitas.
The Federal Court of Appeal would also provide valuable external judicial oversight. As Sheree Conlon, from The Advocates’ Society, told our Legal Committee:
The Advocates’ Society is concerned that Bill C-9 creates a legislative scheme in which the Canadian Judicial Council is the investigator, the decision maker and the appellate authority with respect to allegations of judicial misconduct.
The inclusion of the Federal Court of Appeal would restore external judicial oversight to the process, and preserve judicial independence.
Minister Lametti has tried to claim that including the Federal Court of Appeal would undermine the efficiency of the judicial conduct system that Bill C-9 aims to streamline. But even if the Federal Court of Appeal is inserted at the end of the process, the first-level Federal Court stage that is currently in place would still be eliminated. That would significantly cut down on costs and delays. The government has already addressed the issue of judges continuing to accrue money toward their pensions while dragging out this process; that loophole was closed under previous legislation.
Thus, all of the government’s arguments for rejecting these amendments just don’t add up. My amendments will increase public confidence in the judicial misconduct process and the justice system; provide external oversight while assuring fairness to judges; and still allow for considerable streamlining of the current process by eliminating an entire level of court from the process.
Honourable senators, the Senate has brought — and must continue to bring — sober second thought on Bill C-9. How many more times will this Trudeau government reject our Senate amendments? Time after time, we conduct intensive studies and pre-studies at committee, calling upon expert witnesses who have taken the time to prepare important testimony on government bills. We prepare thoughtful amendments, supported by a majority of senators across groups. And all that hard work is for naught when the government rejects the important amendments that we passed.
Enough is enough.
Although I am proudly Conservative, as you know, I did not propose these amendments with partisan motivations. Our job, as senators, is to make legislation better. Since this judicial disciplinary process hasn’t been updated in more than 50 years, we — as senators — have an obligation to make it the best it can be. That is why I proposed my amendments: to have laypersons participate at every level of the judicial disciplinary process, and to include the Federal Court of Appeal in the system. These amendments, backed by expert witnesses and considerable testimony, will improve public confidence in Canada’s judicial and legal systems.
I hope you will join me in insisting upon my crucial amendments. This is the Senate’s opportunity to stand firm and make this legislation better for Canadians.
