Message from Commons on Bill C-9—Motion in Amendment

By: The Hon. Pierre Dalphond

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Inside the National Gallery of Canada

Hon. Pierre J. Dalphond: I know it’s late and we are wrapping up. I know these last-minute tactics are sometimes predictable. I’m not totally surprised.

I don’t have a prepared speech. I will be rather brief.

The whole proposal rests upon a fallacy. It says the following: We need lay people everywhere, and it gives examples of that. It refers to the Ontario Judicial Council and the Workplace Safety and Insurance Board. Let’s take both of the cases that have been referenced.

The Ontario Judicial Council has the power to administer the complaint process regarding provincially appointed judges in Ontario. They will receive a complaint, review the case and decide if it deserves a sanction, or if it needs to go to a public hearing. If there is a public hearing, there might be a proposal to remove the judge.

Once that process is completed, the judge can go before the Ontario Superior Court of Justice in a judicial review, as Senator Gold has referred to — since that administrative tribunal has completed its process, you can go before the superior court. That will be sent before the Ontario Divisional Court composed of three judges. They will sit in judicial review, and it will be decided if the decision should be reversed or confirmed — it is not really confirmed, but it should be. If it is unreasonable, or so, made on an assumption which is wrong in law that it should be quashed and returned to the body, the body will decide anew.

Senator Batters is proposing to us to add lay people at the Ontario Divisional Court of the Ontario Superior Court of Justice because only judges — “no, no, no; we need lay people to decide because this is the way people will have trust in the system.” Well, she is a lawyer, and she said that maybe lawyers make mistakes from time to time. That is a very interesting proposal, and perhaps a confirmation of her assertion about mistakes.

Let’s take the case of the workplace safety boards in Ontario or in Quebec. It’s true that they are composed of a lawyer assisted by a representative of the employer, as well as a representative of the employee or the union — in Ontario, Quebec and in most provinces. That body is made of lay people and experts with legal training. Their decisions can be reversed, confirmed or annulled by a court of law. You go either to the Quebec Superior Court on the judicial review, or, in Ontario, you will go before the Ontario Superior Court of Justice that will send it to the Ontario Divisional Court where three judges will hear the case and decide if the board has made a wrong appreciation of facts or interpretation of the law.

Senator Batters is proposing that the Ontario Divisional Court should include one layperson because we need lay people everywhere, and that creates trust in the system. Quite frankly, I believe that she is confusing the role of fact finding and appreciating behaviours, conducts and contexts, which is different from judicial control.

What we’re trying to achieve in this bill — about the judicial complaint process — is to say that, yes, if you are a judge, and there might be a complaint made against you, that complaint will go before the Canadian Judicial Council. First, a screening officer will look at it. More than 50% of the complaints will be dismissed at that stage because it is related to a provincial judge; it has nothing to do with the judge — for example, it’s regarding a police officer or lawyer; or it has something to do with a ground of appeal, and not something of a disciplinary nature.

If the complaint is processed and sent to the review committee, the review committee, in private, or in camera — in order to protect confidentiality and personal information about the judge, and according to the international principles I have referred to in my previous speech at third reading — will consider the file, and decide if it should go further or be dismissed. If it goes further, it may be sent to a public hearing committee. That public hearing committee will hear the evidence, decide and take a decision. That is the process which is being proposed. Lay people will be on the review committee to decide if it’s a matter which is serious enough to justify removal from office. If the committee concludes — including lay people — to go to the public hearing, the public hearing will be held including a layperson. The decision will be that the judge be removed or that the complaint be dismissed.

If the complaint is dismissed, the judge will be happy enough to be at the end of the process. If the complaint is considered well-founded and the judge should be removed from office, the judge under the system which is being proposed here would have the right of appeal before an appeal tribunal made of five judges — three chief justices and two puisne judges. The three chief justices are selected by the Canadian Judicial Council, which is made up of chief justices. The two puisne judges will be selected by the council from the list provided by the Canadian Superior Courts Judges Association, the puisne judges.

So we have a committee of five judges that will decide if the hearing panel has made a serious error in the facts or an error of law. That is exactly what the divisional court will do in Ontario; that’s exactly what the appeal court will do in Ontario; this is what the appeal court will do in Quebec; this is what the Federal Court of Appeal will do. But that process made of five judges will replace the Federal Court and the Federal Court of Appeal, that being three years of litigation. That will be replaced by that panel made of five judges. So we’re taking away a review before one judge and a review by three judges, and replacing it with a review by five judges.

But Senator Batters doesn’t agree with this. She said, no, it should not be five judges; it should be three judges — two chief justices, one puisne judge, one layperson and one lawyer. Let’s do that exercise, and when it’s finished let’s go to the Federal Court of Appeal before three judges to review the case once more.

This is a waste of taxpayers’ money. This is time-consuming, and this is going around the principle here, which is to streamline the process. From the hearing process, you go to the specialized court of appeal made of five judges, and then you can go on leave to the Supreme Court of Canada. This is against the whole principle of what we have tried to achieve here over the last four years.

I admire her tenacity and her ability to bring back these amendments from time to time, but I think time has come to vote down this amendment and proceed to the final stage of this message. Thank you.

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