Hon. Pierre J. Dalphond: Honourable senators, I rise to deliver a last, and short, speech on Bill C-9.

In my previous speeches, I explained that the purpose of the bill is to modernize the complaints and discipline process for federally appointed judges in order to maintain public confidence in the judiciary. The bill is designed to streamline the disciplinary process, to ensure participation of lay people at its critical factual steps, to bring more transparency and to reduce costs to taxpayers while maintaining the highest degree of fairness to the judge subject to a complaint.

Today we must deal with the message received from the other place after MPs’ consideration of the amendments proposed, on division, by the Senate.

In my third reading speech, I invited the government and the other place to accept two of these amendments and to consider, with a rather critical lens, the others for the reasons I had outlined.

As the government in the other place has come to the same conclusion, I could just say I fully agree with the message. However, as I articulated in April, responding to a question from Senator Cardozo during the debate on the message from the other place on Bill C-11, to agree or disagree with the message is not determinative of how we should vote in considering the Senate’s complementary constitutional role with respect to the legislative process and the other place.

Rather, I proposed a five-point test that senators may find helpful to consider on the question of when the Senate should insist on an amendment after being rejected by the elected chamber. The test is based on the principle of deference towards the elected house of Parliament.

To refer to Senator Shugart in his impressive maiden speech yesterday, the test is designed to ensure that we demonstrate restraint in our relationship with the other place.

I move now to the five points of my test. One: If the rejection of an amendment is accepted, will it result in legislation that clearly or most likely violates the Constitution or the Charter of Rights and Freedoms? In my third reading speech, I explained why the dismissed amendments were not compliant with the judicial independence of the Canadian Judicial Council in its administration of the complaint process required by our Constitution.

Two: Is the purpose of the bill an election campaign issue for the government, or is it an extremely controversial issue for which voters did not give a mandate to the government? As I said in my previous speech, the content of the bill has been proposed three times over the last four years and is the result of a wide consensus. As said by the Conservative critic in the other place last Thursday, it is a relatively non-controversial bill.

Three: Does the evidence provided to both houses unequivocally show that the rejection of the amendment is fundamentally flawed and that the message received is thus plainly unreasonable? With regard to Bill C-9, the message rests on sound constitutional principles and reflects a large consensus amongst stakeholders.

Four: Does the rejection of the amendment show that the majority of MPs is abusing one or more minorities, showing contempt for language rights or demonstrating favouritism for one region at the expense of another? Such is clearly not the case here.

Five: Does the other place’s response reject an amendment designed to prevent irreparable damage to the national interest? Evidently, again, such is not the case here.

Since the answer to all five of the questions is negative, I feel no hesitation in supporting Senator Gold’s motion to concur with the message.

I now turn to my final point — the comments and the undertakings made by the Chief Justice of Canada earlier this month when meeting with the press and those made by the representative of the Canadian Judicial Council before the Legal and Constitutional Affairs Committee in May.

Commenting on the bill, the Right Honourable Richard Wagner, who presides over the Canadian Judicial Council, said on June 13:

Since I became Chief Justice in 2018, I realized that there was something to be corrected at the Judicial Conduct Committee. The judicial conduct process was…opaque. It was too long, too costly and…it was not possible…for the public to have trust…. I was happy to see that government has decided to legislate on that issue, to be more transparent, less costly.

In short, in order to maintain the public’s confidence, the process administered by the council must be more transparent and judges must remain accountable for their conduct, as the council recognizes on its website and in its annual reports.

With due respect for the council’s judicial independence, I invite it to promptly follow up on the commitments that its representatives made before the Standing Senate Committee on Legal and Constitutional Affairs with regard to transparency in the various aspects of the complaints process, including disaggregated data on the following: First, the number of so-called complaint documents received by the Canadian Judicial Council; second, the characteristics of the individuals who filed those complaints, such as sex, membership in an identifiable group, lack of legal representation during the incident giving rise to the complaint, the nature of proceedings or mediation, and so on. To that end, the complaint form should contain a section where people can self-declare their characteristics if they so wish. Third, the council must provide data on the number of requests for reconsideration and the characteristics of those individuals, if available.

Fourth, the council must provide data on the number of complaints that were subject to a preliminary dismissal by a screening officer, specifying the number for each of the grounds indicated in section 90 of the Judges Act, as amended by Bill C-9, the characteristics of the complainants and the number of complaints that were abandoned or withdrawn. Fifth, the council must provide data on the number of complaints that were referred to a reviewing member, the nature of those complaints, the result of that review and, in the case of a dismissal, the reason for that finding. Sixth, the council must provide data on the number of complaints that were referred to a review panel, the nature of those complaints, the result of that review, including any measures imposed, and the reasons in support of the decision.

Seventh, the council must provide data on the number of complaints that were then referred to a reduced hearing panel, the nature of those complaints, the decision of the reduced hearing panel and the reasons in support of that decision. Eighth, the council must provide data on the number of complaints that were referred to a full hearing panel, the nature of those complaints, the panel’s decision and the reasons in support of the decision. Ninth, the council must provide data on the number of cases that were subject of proceedings before an appeal panel, the nature of those complaints, the decision of the appeal panel and the reasons in support of the decision.

I also call on the Canadian Judicial Council to publicly release a summary of each complaint that has been reviewed by the review committee. On this point, the CJC can draw on the practice of the Ontario Judicial Council and its own practice prior to 2015.

In conclusion, I urge you to accept the message from the other place and thus ensure the implementation of a new process for handling complaints concerning the conduct of federally appointed judges that will be more efficient, more transparent and less costly.

Thank you. Meegwetch. Tshinashkumitin.