Second reading of Bill S-5, An Act to amend the Judges Act

By: The Hon. Pierre Dalphond

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Ottawa River, Gatineau and the Library of the Canadian Parliament, Ottawa

Hon. Pierre J. Dalphond: Honourable senators, I hope that, thanks to this tablet, I will do as well as Senator Tannas, who gave an excellent speech, and I thank him.

Honourable senators, it’s my pleasure to rise today to initiate second reading of Bill S-5, An Act to amend the Judges Act. We are going to speak about the constitutional separation of power once more, but maybe in a less exciting setting than Bill C-15. I know you’ve been waiting anxiously to hear my speech since last week, so I will not keep you waiting any longer. Nevertheless, it might look technical, but it goes to important principles about separation of powers and judicial independence. I hope I’ll get your attention and, even more, your support for this bill.

Essentially, Bill S-5 proposes to modernize the legislative framework on the complaint process applicable to federally appointed judges. The bill will also ensure that the new process, prior to the request to Parliament to remove a superior court judge, is one that is fair, effective and worthy of Canadians’ confidence and trust.

Allow me to begin by sharing the context for this legislation with you. Drafters of the Constitution, mindful of the importance of the independence of the judiciary, a principle first recognized in the Magna Carta, made sure that once judges are appointed, they could not easily be removed by the government or by Parliament. In the U.S., they call it the impeachment of a judge.

This principle can be seen at section 99 of the Constitution Act, 1867, which states:

. . .the judges of the superior courts shall hold office during good behaviour, but shall be removable by the Governor General on address of the Senate and House of Commons.

In 1971, Parliament amended the Judges Act to provide for the creation of the Canadian Judicial Council, a body chaired by the Chief Justice of Canada and comprising every chief justice and associate chief justice of the country’s superior courts. Currently, the council has 41 members.

The council, also called the CJC, is mandated to promote efficiency and uniformity and to improve the quality of judicial service in Canada’s superior courts. As a critical part of this mandate, the council has been given the exclusive authority to investigate allegations of misconduct against a superior court judge. When such allegations are proven, and determined by the council to be so serious that removal from office may be warranted, the act directs the council to submit a report to the Minister of Justice with the recommendation that the judge should be removed from office.

The minister must then decide whether to put the matter to Parliament, inviting both chambers to exercise their power under section 99 of the Constitution Act of 1867, to request that the Governor General remove the judge.

By imposing a process that makes it the responsibility of judges, first and foremost, to deal with allegations of misconduct against a judge, the Judges Act protects judges from acts of intimidation or retaliation by the executive power or litigants. In addition, since the act provides for parliamentarians to exercise their constitutional power to remove a judge only after having received the report and recommendation of the council in this regard, Canadians can rest assured that this measure, intended to be exceptional, will only be taken when it is truly justified. Since 1867, four judges have gotten very close to having a motion in the House of Commons and the Senate seek to strip them of their duties. Therefore, it is not an often-used process.

The process put in place in 1971 remains one of the best in the world, but its main elements have aged to the point where today’s structures and procedures need to be reviewed and simplified to ensure that they will not lead to situations that undermine public confidence.

Several issues have emerged as cause for concern. One of these is the length of the process. Another one is the cost of judicial conduct proceedings. The various internal committees created by the council to deal with complaints are, under the current law, considered to be federal administrative tribunals, and their decisions are thus reviewable, first in the Federal Court, then by the Federal Court of Appeal and finally, on leave by the Supreme Court of Canada.

This gives the judge subject to the process and the council an opportunity to initiate as many as three stages of a judicial review on interim decisions, as well as on final decisions. As a result, judicial conduct inquiries can be delayed for years.

In a recent case, a complaint process initiated in 2012 resulted in the recommendation of the council that a judge be removed from office. This became final only in February 2021.

Colleagues, you may not know, but during that entire period — until the day the Governor General dismisses the judge, or voluntary retirement before Parliament is called to vote on a motion — a judge’s salary continues to be paid and their pension benefits keep accruing. In addition, the legal fees and costs accrued by the council and the judge before the council’s panels and the courts are assumed by the taxpayers.

Bill S-5 contains provisions that will freeze a judge’s pension entitlements as soon as a council hearing panel decides that the judge’s removal from office is justified. Unless a decision is overturned on appeal, or rejected by the Minister of Justice or by either chamber, the judge will only be entitled to the pension they would have received up to the date of the hearing panel’s decision that the removal is justified. That will shorten the process by years.

As you may know, in the budget implementation bill, there is a small provision that will apply as soon as the budget is implemented, which will stop entitlement to pension benefits the minute the council has recommended that the judge be removed from office. However, this bill will integrate that in the whole new process.

Commenting on the case that took roughly nine years, after the Federal Court of Appeal’s decision was rendered in the summer of 2020, in an open letter to Canadians, the Canadian Judicial Council wrote:

Specifically, over the past decade, we have all witnessed public inquiries that have taken far too long and have been far too expensive. We have witnessed countless applications for judicial review, covering every imaginable aspect of the process. These have been enormously time-consuming, expensive and taxing on our federal courts. Furthermore, all costs, including those incurred by the judge who is at the centre of the inquiry, are fully funded by the taxpayer. The judge at issue continues to receive full salary and pension benefits as time passes. This leaves the perception that the judge benefits from these delays. Highlighting this problem, we refer to a painfully obvious pattern, as opposed to any individual case: a pattern that is contrary to the public interest and access to justice.

This was a press release issued by the Canadian Judicial Council, chaired by the Chief Justice of Canada.

At the close of the entire process, on February 25, 2021, eight years after the first complaint in connection with the same judge, the Chief Justice of Canada, the Right Honourable Richard Wagner said:

As Chairperson of the Canadian Judicial Council, I reiterate the need to adopt legislative reforms that Council has long called for in order to improve the judicial conduct review process, and thereby maintain public confidence in the administration of justice. On behalf of the judiciary and the public it serves, I therefore welcome the commitment of the Minister of Justice and the Prime Minister to proceed with those reforms as soon as possible in order to avoid any such saga in the future. As the Minister of Justice said today, “Canadians deserve better”.

Another shortcoming of the current process is that the Judges Act empowers the council to recommend only for or against the removal of a judge. It cannot impose lesser sanctions for misconduct that falls below the necessarily high bar governing judicial removal. As a result, instances of misconduct may fail to be sanctioned because they clearly do not approach this high bar.

There is also a risk that judges may be exposed to full-scale public inquiry proceedings, and to the stigma that can be associated with this, for conduct that could be more sensibly addressed through alternative procedures and lesser sanctions.

Amendments to correct these defects will not only render conduct proceedings more flexible and proportionate to the allegations that provoke them, they will provide greater opportunity for early resolution and reserve the costliest and most complex hearings for the most severe cases.

Finally, the Judges Act requires that a recommendation for the removal of a judge be made to the Minister of Justice by the council itself rather than the inquiry committee established to review the conduct of a particular judge. Thus, once the inquiry committee has reached its conclusions, the council must deliberate, with at least 17 members present, and prepare a report and a recommendation to the minister. This approach goes beyond what procedural fairness requires and places a significant burden in terms of time and energy on at least 17 Chief Justices and Associate Chief Justices, not to mention the translation of evidence, which can include thousands of pages of the committee’s report that were presented to the inquiry committee. As the council itself recognizes, this approach is inefficient and contrary to the public interest in the optimal use of judicial resources, including courts and judges in authority.

This bill was prepared after public consultation on the disciplinary process reform conducted by the government in 2016, which revealed strong support for developing a more transparent disciplinary process that is easier for the public to access, especially because of the increased opportunities for members of the public with no legal training to take part in the process.

The government then benefited from ongoing discussions with representatives of the Judicial Council and the Canadian Superior Court Judges Association, an association that represents more than 1,000 superior court judges, about their concerns and respective visions for the disciplinary process reform. I will come back to the importance of these consultations at the end of my speech.

For now, suffice it to say that nearly everyone involved supports the proposed changes in Bill S-5, which will improve the effectiveness, flexibility and transparency of the disciplinary process for judges, while respecting the principles of fairness and judicial independence. Those are the objectives of the bill. I will now describe some of these key aspects.

The legislation before you will introduce a more versatile process. After initial screening by the council’s officials, any complaint that cannot be dismissed as completely without merit will be referred to a review panel composed of representatives of the judiciary and one member of the public. After reviewing the matter on the basis of written submissions only, the review panel will be empowered to impose remedies short of removal from office — for example, a requirement that the judge take a course of professional development or issue an apology. This would enable the effective, fair and early resolution of cases of misconduct that do not require a full-scale public hearing.

Should a review panel decide that an allegation against a judge could indeed warrant their removal from office, the proposed legislation requires that the matter be referred to a full public hearing. These hearings will function differently from the council’s current inquiry committees. First, the hearing panel itself will include representation by a lay member of the public and a representative of the legal profession in addition to judicial members. A lawyer will be appointed to present the case against the judge, much as a public prosecutor will do. The judge will continue to have the opportunity to introduce evidence and examine witnesses, all with the aid of his or her own counsel. In sum, the process will be structured as an adjudicative and adversarial hearing — a format that benefits the gravity of the issues involved, both for the judge and for public confidence in the integrity of justice.

At the conclusion of these public hearings, a hearing panel will determine whether or not a judge should be removed from office. Its report will no longer need to be confirmed by the council to become effective. This will remove a step that is ill-defined and often results in significant delays and costs.

At the conclusion of the hearings process, and before a report on removal is issued to the minister, both the judge whose conduct is being examined and the lawyer responsible for presenting the case against the judge will be entitled to appeal the outcome to an appeal panel. This appeal mechanism will replace the current recourse to judicial review through the federal courts. In other words, rather than making the council’s report subject to external review by multiple levels of court, with the resulting costs and delays, the new process will include a specialized appeal mechanism internal to the process itself.

A five-judge appeal panel made of judges in authority and puisne judges would hold public hearings akin to those of an appellate court and have all the powers it needs to effectively address any shortcomings in the hearing panel’s process. Once it has reached its decision, the only remaining recourse available to the judge or to the presenting counsel will be to seek leave to the Supreme Court of Canada. Entrusting process oversight to the Supreme Court will reinforce public confidence and avoid years of judicial review proceedings through the Federal Court and the Federal Court of Appeal.

The new appeal process will be governed by strict deadlines, and any outcomes reached will form part of the report and recommendations ultimately made to the Minister of Justice.

The proposed new complaint process is expected to reduce the length of proceedings by a matter of years by reducing considerably the total number of potential stages and, of course, associated costs.

To maintain public confidence, the disciplinary process for judges must produce results not only in a timely fashion, but at a reasonable cost to the public purse. The costs should be as transparent as possible and subject to sound financial controls. The bill includes provisions to ensure that the costs related to the process are subject to government regulations and the guidelines of the Commissioner for Federal Judicial Affairs.

Currently, the number of disciplinary investigations applicable to judges varies from year to year. This makes it impossible to set a specific budget for costs in any given year, requiring managers to use cumbersome mechanisms to get the necessary ad hoc funding at different stages of the process.

To remedy this problem, the proposed legislation would effectively divide the process costs into two streams. Funding for constant and predictable costs — those associated with the day-to-day review and investigation of complaints — will continue to be sought through the regular budget cycle of the council.

The second stream, however, consisting of highly variable and unpredictable costs associated with cases that proceed to public hearings, including the fees of the lawyer acting as prosecutor and the judge’s counsel, will be funded through a targeted statutory appropriation established in this bill. In other words, costs associated with the public hearing process would be paid directly from the Consolidated Revenue Fund.

It should be recalled that these public hearings are a constitutional requirement. A judge cannot be removed from office absent a judge-led hearing into their conduct. It is thus appropriate that a non-discretionary expense incurred in the public interest and in the fulfilment of the constitutional obligation be supported by stable and effective access to the Consolidated Revenue Fund.

Parliament must, nonetheless, be assured that the scope of this statutory appropriation is clearly defined. The type of process expenses, as well as guidelines for their quantum, must be clearly spelled out. There must be accountability and transparency to reassure Parliament and Canadians that public funds are being prudently managed.

As a result, the provisions establishing the appropriation clearly limit the categories of expenses it captures to those required to hold public hearings. Moreover, these expenses will be subject to regulations made by the Governor-in-Council. Planned regulations include limits on how much lawyers involved in the process can bill and limiting judges who are subject to proceedings to one principal lawyer and not two or three.

The bill also requires that the Commissioner for Federal Judicial Affairs adopt guidelines fixing or providing for the determination of any fees, allowances and expenses that may be reimbursed and that are not specifically addressed by the government regulations. These guidelines must be consistent with any Treasury Board directives pertaining to similar costs, and any difference must be publicly justified.

I note that the Commissioner for Federal Judicial Affairs, who will be responsible for administering these costs, is a deputy head and accounting officer, and is, therefore, accountable before parliamentary committees.

Finally, the bill requires that a mandatory independent review be completed every five years into all costs paid through the statutory appropriation. The independent reviewer will report to the Minister of Justice, the commissioner and the Chair of the Canadian Judicial Council. Their report will assess the efficacy of all applicable policies establishing financial controls and will be made public.

Taken together, these measures will bring a new level of fiscal accountability to judicial conduct costs while replacing the cumbersome and ad hoc funding approach currently in place. This is a necessary complement to procedural reforms. Both procedural efficiency and accountability for the expenditure of public funds are necessary to ensure public confidence.

During the reform process, the government paid close attention to the public feedback that was collected through an online survey and to some key representatives from the legal community, such as the Canadian Bar Association, the Federation of Law Societies of Canada, and the provinces and territories.

As I have already mentioned, the Canadian Judicial Council and the Canadian Superior Courts Judges Association were consulted. The association represents nearly 95% of Canadian Superior Court judges. The participation of representatives from the council and the association were not only relevant but also necessary, because the Constitution dictates that this process must be managed and administered in large part by the judges. By consulting the council, the government was able to get feedback from the people directly responsible for administering the judicial discipline process. Furthermore, by consulting the association, the government was able to hear directly from the representatives of the judges subject to this process.

As a former president of the Canadian Superior Court Judges Association and a former member of several Canadian Judicial Council committees, I am following this file very closely. I am pleased that this bill has the support of both the council and the association. In a news release from May 27, 2021, the council stated the following:

The Canadian Judicial Council welcomes the government’s new bill to reform the judicial discipline process, which was tabled in Parliament this past Tuesday.

In the same press release, the Right Honourable Richard Wagner, Chief Justice of Canada, stated, and I quote:

Over the past few years, the Council has consistently called for new legislation to be tabled in order to improve the process by which concerns about judicial conduct are reviewed. The efforts of members of Council to develop proposals in this regard have been fruitful, and we appreciate the openness with which the Minister of Justice has engaged the Council in his consultations . . . . While the Council will take some time to carefully review the proposed amendments, we are confident that these reforms will bring about much needed efficiency and transparency to the judicial conduct review process.

I would like to point out that the Canadian Judicial Council released a new version of Ethical Principles for Judges on June 9. This publication guides judges every day as they carry out their duties both inside and outside the courtroom. This important update of the suggested standards of conduct for federally appointed judges is part of the modernization of the disciplinary framework for judges and their conduct.

I began this speech by noting our responsibility as parliamentarians to serve as good custodians of our foundational institutions, including an independent judiciary. More than 50 years ago, Parliament had the foresight to craft a judicial conduct process that removed any prospect of political interference by giving the judiciary effective control over the investigation of its members.

Please note that in the U.S. the impeachment process, which is well known when used as against the President, is the same process which is used against a federally appointed judge to remove that judge from office. Every four years or so one or two judges go through that process and are removed from office. We, fortunately, do not have such a political process in Canada thanks to the legislation adopted by Parliament in 1970.

Today, respect for this form of judicial leadership is firmly entrenched. It is a gesture of respect for judicial independence under the Constitution itself, and a source of public confidence in the institutions of justice that exist to serve them.

It falls to us today to renew this commitment by modernizing the judicial conduct process, providing its judicial custodians with a modernized legislative framework that contains all the tools needed to maintain, even increase, public trust. These include tools to enhance efficiency, bring transparency, ensure accountability, provide versatility and maintain the highest standards of procedural fairness. I wholeheartedly recommend the bill before you in this spirit. Thank you, meegwetch.

The Hon. the Speaker: Senator Dalphond, will you take a question?

Senator Dalphond: Yes. I would be pleased to accept a question.

Hon. Denise Batters: Thank you, Senator Dalphond. I took part in the Bill S-5 technical briefing that the government held last week, and there were a few questions I asked at that technical briefing that were not answered there by the government, so I’ll pose these questions to you.

First of all, why is the government introducing Bill S-5 in the Senate?

Senator Dalphond: I understand this is the first in a line of questions. Thank you. Quite frankly, I think that out of respect for the process, which is designed to be apolitical, I think the government decided to have the bill introduced in the Senate where the process is less political than the House of Commons and also subject to people who have more time to look at the important foundational principles that are at stake here.

Senator Batters: Thank you. Is it problematic, with that in mind, that a Senate-initiated bill purports to spend public money by providing in this bill for publicly funded lawyers for judges who are facing disciplinary and removal proceedings?

Senator Dalphond: If I understand properly, is it a problem that a budgetary expense is introduced in the Senate? It’s a good question. This is a government bill, so it comes with the Governor General’s warrant. It’s not coming as a private bill but a Senate public bill initiated by a senator, which does not, of course, benefit from the Royal Recommendation. So this is coming from the government and being introduced with the proper allocation of money, and that will be followed by an appropriation in the next budget.

Senator Batters: Thank you. Just on that point, that was the same sort of thing with Bill S-4, which we recently had. Bill S-4 was also a government bill, and there was a special appropriations part dealing with that in the bill, I believe.

Also, Senator Dalphond, that government technical briefing last week was for a government bill, conducted on a government telephone conference call line. There was no translation available on that lengthy technical briefing, and I’m sure you would agree this is unacceptable for a government bill’s technical briefing for parliamentarians. I attended a government technical briefing about five years ago where there was a significant translation problem, and the entire briefing was put on hold until it could be fixed.

Senator Dalphond, why wasn’t translation available at that government technical briefing last week?

Senator Dalphond: That’s another good question, but unfortunately, I was not part of the planning. It was not expected. The translation was to be provided. It was only a few minutes, and as you remember, we started that meeting 10 minutes late — maybe 12 minutes — so there was a problem there; I acknowledge it.

It was a bit laborious to a certain extent so you would have all the presentations. I did my small bit at the beginning in French and then in English, and all the Justice officials did their presentations using the PowerPoint in French and then repeating it in English. So that was translation, but not simultaneous translation. It was consecutive translation. If we were in a criminal trial, that could be a problem; there are judgments about that. It should be simultaneous translation not consecutive translation. But we did as much as we could do to make sure that both presentations were made in both official languages using both PowerPoints.

Senator Batters: Certainly valiant efforts were made by the officials who were there. I just bring that to your attention and to Senator Gold’s attention that that is not acceptable and hopefully never happens again.

For my last question, clause 140 of this act provides that the Minister of Justice must respond publicly to a report of the full hearing panel dealing with a judge’s removal. Why didn’t the government include a deadline for the minister to publicly respond? The aim of the act is to provide greater transparency, and, as we’ve often seen, the federal government has frequently been tardy where timeliness and transparency can be a very important matter. Why is there no deadline for the minister to respond?

Senator Dalphond: Thank you for the question. First, to complete the previous question, I will add something. I very politely make a number of suggestions to the Government Representative, but maybe we should also try to have virtual presentations for these technical briefings instead of a phone call. I think it would be good to see the people. We have all these committee meetings being held virtually. I don’t understand why the briefings are not virtual. But I know there must be technical reasons for it.

To come back to your question, once the public hearing is completed, if it is a recommendation to remove, then the process can go to the minister, and the minister will still have decisions to make. Does he follow that report? Yes, if he agrees with the report, he will have to go to cabinet first and then to both houses.

In the meantime, once the report is public and it has been suggested that the judge be removed, the lawyer acting as prosecutor will have completed the mandate. But the judge might decide that it’s worth going to appeal. The appeal process, which I described within the whole structure, will be there. The report will be sent to the minister, but the minister cannot act until he receives the report and the decision from the internal appeal process. It’s difficult to know in advance how many weeks or days or months it will take for the new appeal process built into the structure to be exhausted.

Senator Batters: Except a part of that is the deadline starts when the minister receives it and everything is complete for the minister to be able to respond. What I was asking is: Why isn’t there a deadline for the minister to respond once all of that process is complete?

Senator Dalphond: There’s a specific delay for the judge to appeal the decision of the hearing panel to propose that he be removed from office, and so we have to wait until that period is exhausted to find out if the judge decided to avail himself or herself of the appeal process, and then the minister will not commence until the appeal process is exhausted.

I understand your question, and I see you read the bill very well. I’m happy to see that you are the critic because you know the matter very well, and you already have done a lot of work. I think it’s been designed to have flexibility because they couldn’t figure out how much time it will take to complete that process, but certainly it’s going to take years less than the current process.

The Hon. the Speaker: Senator Dalphond, Senator Dupuis would like to ask you a question. Will you take another question?

Senator Dalphond: With pleasure.

Hon. Renée Dupuis: Senator Dalphond, in cases where a review panel wants to impose sanctions, there will be four options: a reprimand; an order to apologize; equivalent actions; and another option, which is any other action with the consent of the judge. I have a hard time seeing how the review panel would negotiate with a judge about the penalty to be imposed should the removal not be referred. Doesn’t that tie the review panel’s hands when it should have the power to decide the appropriate punishment? Why should it need the consent of the offending judge to take action?

Senator Dalphond: I said somewhat jokingly that I knew that everyone was interested in the bill, but I am pleased to see that it is true. Senator Dupuis has asked an excellent question. In reality, the interim process for less serious cases does not allow the panel to suspend the payment of salary. No financial sanctions can be imposed. However, a course of action can be agreed upon with the judge. I do not want to name names, but in the past, I have seen a judge who was suspected of having an alcohol or drug addiction and, as a result, had a complaint filed against him for the way he behaved in court. As part of the process, it could be proposed that the judge get treatment for their addiction, for example. Those are the types of measures that are being considered. There is a case that is public of a judge who is known for having a hard time rendering his decisions and who often takes longer to render his decision than the six-month period allocated for that purpose. In that case, it was thought that the chief justice could help the judge or that a judge from another province could be assigned as a companion to help the judge in question to develop more effective writing and note taking techniques so that he could render his decisions more quickly. You would be surprised at how creative people can be. The reason why we planned for the judge to be involved was that, in situations like these, where we are talking about personal problems, we do not want to prevent the judge from proposing a solution to the panel themselves. I do not know whether that answers your question.

Senator Dupuis: That doesn’t answer my question about the judge’s consent. The committee may come to the conclusion that specific measures must be imposed. I don’t understand why the committee is being subjected to that. In the examples you’ve given, it’s quite conceivable that a judge would not consent to such measures, which means the committee’s hands would be tied, so to speak.

Senator Dalphond: That is an excellent point. The reality is that the judge would suggest something to avoid getting a reprimand letter in their file or something similar. It might be an apology letter to a witness or a party about whom the judge made inappropriate comments, for example. In that case, you might try to get them to take a course on sensitivity towards a specific demographic, for example, although it can be difficult to force someone to take a course. Someone can speak with them, and if they consent, obviously that would be part of the process, but their consent would not be needed to impose other measures.

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