Honourable senators, I rise to speak briefly about Bill C-9, An Act to amend the Judges Act. I support the bill and recommend its adoption in the Senate.

I should say at the outset of my remarks that I have benefited significantly from an opportunity to review a not-yet-published paper by my friend and colleague in the field of legal and judicial ethics, Professor Richard Devlin at the Schulich School of Law at Dalhousie University. Professor Devlin is one of the leading Canadian scholars in the field of legal and judicial ethics and has in a very short time produced a scholarly analysis of the bill, which I hope he will be in a position to share more broadly. He may not agree with my remarks today — I want to be clear on that — although I think that he and I have similar perspectives on the bill.

As the sponsor of Bill C-9, Senator Dalphond highlighted in his excellent speech last week that the bill seeks to modernize the process by which complaints of misconduct against senior judges in Canada are handled. To my mind, Bill C-9 is part of a continuing process of modernizing and strengthening our expectations of judges and putting in place improved processes to achieve judicial accountability.

One part of that process was, in 2021, the adoption by the Canadian Judicial Council of modernized Ethical Principles for Judges, which articulated, in my view, a rich statement about — as Professor Daniel Jutras, an adviser to the group, described it — the ethical identity of a judge.

That modern version articulated explicit new expectations of judges in relation to, among other things, competence, respect for participants in the judicial process, engagement with the public, expectations of judges and their offices with respect to harassment and so on.

With respect to judicial discipline, as Senator Dalphond noted, this topic has bedeviled the judiciary and the Canadian public for some decades. Bill C-9 embraces a number of principles in developing a modern discipline process by which complaints can be considered. I want to focus on four aspects of that in my remarks: judicial independence, accountability, efficiency and transparency.

Before I do so, I want to tell you two stories that, to my mind, humanize the questions of judicial conduct and accountability for lawyers, and especially for clients, and make the case for this very important bill.

When I was a young lawyer, for the grounds of divorce, even if uncontested, the person seeking the divorce was required to appear before a Superior Court judge and testify. I represented a woman who was seeking a divorce on the grounds of physical cruelty. She testified that when she was having a falling-out and decided to leave her spouse, she was putting on her coat to leave when he asked, “Where are you going?” She said, “I’m leaving you and I’m going out to look for an apartment.” The man punched her in the face and knocked her off her feet. After she testified, the judge asked me what the grounds were of the physical cruelty that I was alleging, and I said that it was the punch in the face and being knocked off her feet. The judge said, “That’s not physical cruelty. She deserved that.” He dismissed her application for a divorce.

I was a young lawyer — and I was mortified, quite frankly. The woman was crushed by this. There is an appeal process, but that drags out the process. We found a workaround — I didn’t know what to do. I spoke to the chief justice of the court. He said he would have a quiet conversation with the judge — and that was all.

I have a second example — somewhat more recent. I was representing a person who had won a $2,000 award in small claims court. For some reason, the people on the other side appealed the judgment. It then went to the former county court in Nova Scotia. The judge heard the case, required us to make a full presentation over this $2,000 and reserved judgment — that is, the judge took it under consideration. I worked at Dalhousie Legal Aid Service for a period of time. I left to work again at the law school at Dalhousie University. Three years later, I returned to the clinic, and the judge had still not issued his judgment on this $2,000 claim. I met with the chief justice of the province — I did not know what to do. His advice was to just keep quiet about it, and wait for the judgment. I waited. The judge died. I was very fond of that particular judge, but this was not helping my client. We had to then find a workaround, or relitigate the case.

These issues are frustrating to a lawyer. I lost a lot of cases — not too many quite like this. But it was unbelievably unfair to the client. The client’s job is only to receive justice in her case — not solve the problems of judicial accountability.

I think it is fair to say that previous processes have been respectful of judicial independence — which is important, as I will say in a moment — but have been much less successful with respect to judicial accountability, efficiency and transparency. In my view, Bill C-9 continues to respect the principle of judicial independence, but improves on each of those other fronts.

That said, and while I support the bill, it is helpful to note that it is not a complete success in some respects, and I will mention a couple of these in the closing part of my remarks. However, it is worthwhile to say a word or two about the importance of this bill, and the way in which it strikes, I think, a delicate balance: On the one hand, it respects judicial independence, and, on the other hand, it respects the public expectations of judicial accountability.

When the bill was being considered at committee in the other place, one member of Parliament commented that the complaints on the discipline system for judges are “pretty dry stuff.” I think that’s true. But it is extremely important — more important than meets the eye.

In Canada, we are blessed with, perhaps, the most competent and principled judiciary in the English-speaking world. While people — from time to time — disagree with judicial decisions, we have significant faith in the judiciary to render thoughtful, fair-minded, independent judgments — reached in an impartial way. We work hard to protect the independence of that decision-making process through principles and laws. This preservation and protection of judicial independence is not primarily — or even significantly — for the benefit of the judiciary. It is for our benefit because a fair, independent decision process is critical to our own confidence — not just in the judiciary, but in the administration of justice more generally and the rule of law.

At the same time, public confidence in the judiciary, and the administration of justice, can be jeopardized if the public perceptions are that members of the judiciary are not held accountable for conduct that falls below the standards expected, as well as articulated in other places, such as the ethical guidance for judges. Related to that, public confidence in the judiciary is jeopardized if those processes take too long — and many have done — or are far too expensive at the public purse’s expense or, particularly, if they are not transparent.

I think it is fair to say that, historically, the process to investigate and discipline judges for misconduct has underperformed on these three fronts. As Senator Dalphond has noted, and others have commented, the process has been gamed by judges in order to extract maximum personal benefits and, in the end, avoid official sanction.

Here are a few observations of how the bill has sought to remedy these problems:

The first observation is with respect to transparency. The bill creates opportunities for participation in aspects of the process by non-judges, while carefully preserving judicial independence. This is done by striking a delicate balance. It leaves the decision process related to discipline primarily in the hands of judges, and that can lead to a potential recommendation to the Minister of Justice — under section 99 of the Constitution — for the judge’s removal from office.

Lay people and lawyers play a role in some aspects of the discipline process at the review panel stage, as well as at two types of the hearing panel established under this legislation: the so-called reduced hearing panel and the full hearing panel. The latter takes place near the end of the process in cases of allegations of serious misconduct. The full hearing panel, for example, is composed of one lawyer and one layperson on a five‑member panel. In these cases, judges continue to make up a majority of the panel responsible for the decision making but, on balance, I think this is necessary to preserve judicial independence and, at the same time, build public confidence in an independent judiciary.

Once the matter reaches the stage of hearings, those hearings are presumptively public with limited exceptions, increasing transparency.

I would like to see more space for complainants in the process, as would my friend Professor Devlin, but these are definitely improvements in the existing process.

With respect to efficiency, the number of layers of review has been reduced, though only modestly. The legislation seeks to create an appeal process that will avoid burdensome, much delayed and highly expensive judicial review avenues that judges have pursued in the past. As well, in support of efficiency and reduced costs, judges’ pension and pay benefits may be able to end at a sooner point in the process, reducing the incentive for a judge — facing serious sanctions — to prolong the process once pay or pension entitlements become moderated.

I have some reservations, as does Professor Devlin, about whether the new regime will achieve significant goals related to efficiency, but I think we can be hopeful. One aspect of the amendments that will contribute to efficiency is that the roles of participants have been clarified. This lack of clarity — under the existing regime — has complicated hearings in the past, generating, in some cases, years of delay and enormous cost. The new process, in cases of serious matters, moves away from an inquisitorial process — with this confusion of roles — to a more adversarial process. Indeed, the legislation describes how the presenting counsel, which is the person who presents the case against the judge, is expected to conduct themselves in accordance with the standards and principles that govern the conduct of Crown prosecutors. You get the shape of it.

Lastly, I will speak on accountability. I attended a legal and judicial conference in Vancouver in 1980 when matters of judicial discipline were not much in the public eye. At the conference, a senior judge in British Columbia was asked about judicial accountability. The judge replied, “Accountability? To whom am I accountable? I am accountable to myself.”

The judge who provided the answer was among the most respected judges in this country, and I think what he was saying was, “I take my job seriously, and I live up to standards of ethics and professional conduct.” However, the statement did seem to emphasize an imperial approach, and a lack of public accountability. Much has changed from that time to now. Public expectations of discipline around judges have brought us to this point — a good point.

Indeed, a number of aspects of the bill, and the associated developments, will build public confidence, in my view.

Bill C-9 improves the process by which complainants will be considered. There is greater transparency in the process. The bill moderates the ability of judges to prolong the process and game the system. It could be better in some respects, but this delicate balance needs to be struck. I think it has been well struck in this bill.

In closing, I wish to identify two specific concerns that could be captured in observations if the committee reviewing the bill was so inclined.

First, there is room for more meaningful treatment of complainants through the development of Canadian Judicial Council policies. This is actually identified in the bill, and there is space for that, and I hope this message can be conveyed by us to the Canadian Judicial Council.

A second suggestion strikes a bit closer to home, even for us. As I understand it — and here I am indebted to Senator Dalphond — the way in which the honorific “Honourable” works for superior court judges is that on retirement they give up the honorific and then through some process, opaque to me, get it back again. I presume that this occurs through some federal judicial office. It strikes me as imperative that when a judge is removed from office or resigns in the face of judicial discipline, there is a policy in place to the effect that they do not get their “Honourable” back.

We likely need such a process in this house, which I hope, in time, we will develop.

In conclusion, then, while I have some modest reservations about the bill, I think that it is an excellent step forward and I urge you to support it when votes come for it. Thank you.