Third reading of Bill C-9, An Act to amend the Judges Act, as amended

By: The Hon. Pierre Dalphond

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Hon. Pierre J. Dalphond moved third reading of Bill C-9, An Act to amend the Judges Act, as amended.

He said: Dear colleagues, as the sponsor of Bill C-9, An Act to amend the Judges Act, it is my privilege to open this debate at third reading.

As a reminder, the bill would modernize the complaints process for federally appointed judges.

As I said in my speech at second reading, since 1971, the Judges Act has given the Canadian Judicial Council the mandate to receive complaints against federally appointed judges and address them appropriately.

Incidentally, Canada has close to 1,200 federally appointed judges and over 1,000 provincially appointed judges, plus justices of the peace and administrative judges at both the federal and provincial levels. These thousands of people are the human face of the justice system that tens of thousands of people passing through courts across the country encounter every day.

Unlike in the United States, all federally appointed judges, including those at the Supreme Court of Canada, may be the subject of a complaint and are under the council’s exclusive jurisdiction with respect to conduct. Provincial and administrative judges are governed by various provincial organizations in matters of conduct and complaint.

Bill C-9 would set up a new disciplinary process just for the 1,200 federal judges.

My speech will be divided into five parts: the constitutional principle of judicial independence and what that involves; the special nature of Bill C-9 and our role; the existing disciplinary process and its limitations; the main elements of the proposed process and their objectives; and finally, the amendments proposed by the committee and their impact on the elements and objectives of Bill C-9.

An independent judiciary is crucial to a strong democracy. In Canada, the independence of federally appointed judges is a principle entrenched in the first line of the preamble and at Part VII of the Constitution Act, 1867. This principle is derived from a long and sometimes tortuous evolution in the United Kingdom. This independence is not for the benefit of the judges but, rather, for the benefit of persons who face judgment — in other words, the citizens.

Judicial independence ensures that the judge can act as a neutral referee, applying the law without influence from the government of the day, including its Minister of Justice, religious institutions, corporations, unions, lobbyists, media and other influencers.

The right to be judged by an independent judge is also enshrined in our Canadian Charter of Rights and Freedoms at section 11(d) as the legal right of any accused appearing before a federal as well as a provincial judge.

It is well established under international instruments and numerous judgments rendered by the Supreme Court of Canada that judicial independence calls for three essential components: security of tenure, financial security and administrative independence.

Let me explain the contents of each of these essential components in reverse order. Administrative independence requires that the court system be designed to ensure that the judges decide cases by themselves, that they manage their courtroom and that they are provided sufficient support to discharge their functions.

Furthermore, the court to which a judge belongs must enjoy the same independence from the executive, the legislature, the public or other influence. This is called institutional independence. It includes the assignment of cases to judges, access to courthouses and management of files.

This institutional independence extends to the Canadian Judicial Council in the discharge of its functions, including processing complaints and providing training for federal judges.

Financial security means that federal judges are entitled to be paid remuneration by the federal purse. Section 100 of the Constitution Act of 1867 specifically provides that the salaries, allowances and pensions of judges of the superior courts shall be fixed and provided by the Parliament of Canada.

Financial security means that federal judges are entitled to remuneration fixed by Parliament as long as they are judges.

For this reason, if a judge is subject to a complaint, he or she doesn’t have to pay for the lawyer hired to assist in the conduct review process, including any proceedings before the Federal Court, Federal Court of Appeal or the Supreme Court of Canada.

In addition, many judges and jurists are of the view that a suspension without pay is not possible since the only constitutionally valid way to stop payment of the guaranteed remuneration is to terminate the judge.

It is true that in some provinces a possible intermediate sanction is a suspension without pay. For example, the Ontario act applicable to provincial judges provides for the possibility of a suspension without pay not to exceed 30 days. The constitutionality of such a sanction has never been tested in Ontario, where it has rarely been imposed — fewer than five cases — but I can assure you that including such provision in the federal Judges Act will lead to a constitutional challenge.

I will add that it is well established since the Supreme Court of Canada’s judgment in the case of Valente that judges of provincial courts do not enjoy the same constitutional guarantees of salary and pension as superior court judges. Therefore, we should avoid comparing what is provided to provincial judges with what is provided to federal judges.

Moreover, the Supreme Court has decided that the statutorily prescribed remuneration must be adequate, as determined by an independent commission and not by the Minister of Justice, the government or Parliament.

The Supreme Court has also ruled that neither the government nor Parliament can, through control over the public purse, arbitrarily reduce that remuneration. In fact, any contemplated reduction of remuneration must be applicable to the whole judiciary, not to a single judge, and has to be approved by the independent commission before coming into force.

The third component is security of tenure. It means that the judge cannot be removed from office except in cases of serious misconduct, as stated in section 99 of the Constitution Act of 1867.

The Supreme Court of Canada, guided by international principles, has concluded that the determination of serious misconduct has to be the result of a process controlled by the judges and not by the executive of Parliament. This is necessary to avoid political interference and/or public pressure and to avoid threats to judicial independence.

For this reason, the determination of misconduct and the appropriate sanction must be made through a system made only of judges or at least a majority of judges.

In cases where this process concludes that removal from office is the appropriate sanction, the decision of the Canadian Judicial Council is not sufficient.

The Constitution Act of 1867, in section 99, states that federally appointed judges can be subsequently dismissed only by the Governor General further to a joint address from the House of Commons and the Senate. Quite clearly, the drafters of our Constitution wanted federally appointed judges to hold positions with the highest security of tenure possible in Canada.

I move to my second point: the special nature of Bill C-9 and the Senate’s role with regard to this legislation. We must remember that the judicial conduct process cannot be constitutionally amended or modified in a way that does not comply with the three fundamental components of judicial independence I just described. Because the conduct review process is a matter to be left to the judiciary and not to the executive or Parliament, any legislative proposal to amend the current system must, in practice, respond to a request from the judiciary.

This is what makes Bill C-9 different from other bills initiated by the government. Generally, a bill is a way for a government to put in place a new policy that it considers is in the best interests of Canadians, and the government can design it as it wishes, as long as it respects the Canadian Charter of Rights and Freedoms and the division of powers under the Constitution.

As said before the Standing Senate Committee on Legal and Constitutional Affairs by the minister, the Canadian Judicial Council representative and some other witnesses, Bill C-9 is the result of extensive consultations initiated by the Canadian Judicial Council, then presided over by Chief Justice Beverley McLaughlin. It thus comes as no surprise that Bill C-9 has the support of the Canadian Judicial Council, including all of Canada’s federally appointed chief justices and associate chief justices. This is the body at the very heart of the judicial conduct process.

Bill C-9 also benefited from the support of the Canadian Superior Courts Judges Associations, representing almost all of the 1,200 Superior Court judges to whom this process applies and which organization I had the pleasure to chair for many years.

In this context, it was understandable that the members of the committee had questions and were looking for clarification. That is why, rather than contact the minister, I contacted the Canadian Judicial Council to see whether they would agree to come back and appear before the committee again. They agreed to come and answer the committee members’ questions.

When faced with such a bill, it is our job as legislators to ensure that the legislative framework that allows the judges of Canada’s superior courts to oversee the conduct of their members is up to the task and respects the constitutional principles that I just explained, including judicial independence, which is fundamental in maintaining Canadians’ confidence in our justice system. We need to resist any attempt to undermine judicial independence, whether those attempts come from the government or from lobby groups.

As Senator Joyal, former chair of the Standing Senate Committee on Legal and Constitutional Affairs, and many other senators who are still here today have often said, we are the guardians of the Constitution and its institutions, and we must remain vigilant. On this point, allow me to quote The Advocates’ Society, which said the following in a recent publication:

Like other foundational elements of democracy, judicial independence is vulnerable to threats. Its protection requires constant vigilance. Society, and the legal community in particular, must guard against what may appear to be even small incursions into this principle.

I’m particularly proud of the work the Senate did on the Ambrose bill over four years ago. Although the objective of the first version passed by the other place was very laudable, the bill failed to respect judicial independence, because it attempted to dictate the content of the training to be given to judges, to control the assignment of judges by chief justices in cases involving sexual offences, to require the communication of certain information relating to the handling of cases in courthouses, and to impose other measures that showed a lack of knowledge or understanding of judicial independence.

It was thanks to the Senate and the 15 or so amendments it proposed that the government took the Ambrose bill and turned it into a government bill, incorporating all the changes suggested by the Senate. Today, this law is in force, with the utmost respect for judicial independence.

Similarly, when the government proposed legislation that would have treated judges like MPs and senators in terms of public disclosure of individual expenses, it was the Senate that made the government back down by proposing amendments that ensured transparency in the use of public funds while respecting the administrative autonomy of judges and the courts. Our message was accepted by the government and supported by the other place.

I now move to my third point, the current disciplinary process and its limits.

Judicial independence doesn’t mean that judges are unaccountable for their decisions and their conduct in and outside courthouses. Thus, their decisions can be reviewed in appeal, and misconduct can lead to a complaint and investigation by the Canadian Judicial Council.

The current system is essentially governed by rules adopted by the council, as amended from time to time. They provide for a preliminary screening of the complaints by the executive director. It is at this stage that a huge majority of the complaints are rejected because they are beyond the mandate of the council. For example, many complaints relate to a provincial judge, a Crown attorney, a police officer, a court officer and so forth. Another significant portion of complaints concerns the interpretation of the law or the facts by a judge, matters that belong to courts of appeal.

If the complaint appears within the mandate of the council, then it is transmitted to a member of the council for an initial review. That chief justice may dismiss the complaint or send it to the full review committee if serious enough to justify the dismissal of the judge. If the misconduct is less serious, an appropriate corrective measure may be negotiated with the judge.

If the review committee concludes that the misconduct is serious enough to justify a dismissal, a public inquiry will be held by a committee of three or five persons composed of a majority of judges and one or two jurists appointed by the Minister of Justice. The report of that committee will have to be presented to the council for decision by a minimum of 17 chief or associate justices.

Under the current system, many of these decisions may be challenged before the Federal Court through a judicial review application. The judgment of the Federal Court can be appealed to the Federal Court of Appeal as of right and subsequently, on leave, to the Supreme Court of Canada.

This process when used to its maximum may last many years and be extremely expensive. For example, one case took over seven years and cost over $5.5 million of taxpayers’ money in legal fees.

The Chief Justice of Canada and many other chiefs have expressed concerns about the tendency to have longer and more expensive proceedings. They are worried that, as a result, the public may lose confidence in the process, and they are mindful of the use of public money.

I now move to my fourth point, Bill C-9 and the principal features of the proposed new conduct review process, in the form adopted unanimously by the other place.

The objective of the bill is to implement a new process that includes public representatives and judges other than chief justices — what I might call judges not in authority — at critical steps in the process. It also reduces the number of possible steps and ensures better control over the costs of defending the judge who is the subject of the complaint. All of this is aimed at reducing delays and costs and ultimately maintaining public confidence in the judiciary and its disciplinary system.

More specifically, the bill proposes the following key measures. First, it creates screening officers to conduct preliminary reviews of complaints. They will in fact be lawyers hired for this purpose and therefore experts, instead of having the council’s executive director do it. It adds a representative of the public to the hearing panel that hears the evidence and decides whether or not a judge should be removed from office. This is the most important step in the process that can lead to a removal, and the panel would currently consist of just judges and jurists. It adds judges not in authority to every step in the process. It adds the possibility of imposing intermediate corrective measures on a judge when the misconduct does not justify removal, whereas this currently relies on an agreement with the judge. It confirms the finality of the hearing panel’s decision, which becomes the council’s final report, without requiring a decision to be made by at least 17 chief justices who sit on the council. This will eliminate a very onerous step. It adds more transparency to the process, including through an annual report and the communication of information to the complainants at every stage. It creates strict rules surrounding the fees of lawyers representing judges who are the subject of a complaint and the fees of presenting counsel. It replaces the Federal Court and the Federal Court of Appeal with an appeal panel made up of five judges. This eliminates another step from the process, which means just one step instead of two. Lastly, it maintains the possibility of filing one last appeal with leave from the Supreme Court of Canada.

In summary, the bill proposes to increase the participation of laypersons and judges not in authority and provides for the possibility of imposing intermediate sanctions with or without the agreement of the judge concerned, in shorter time frames and with costs that are more tightly regulated.

I will now speak to the fifth and second-last point of my speech, the six amendments proposed in the committee’s report and their impact on the objectives of the bill.

As you may have noted yesterday, the committee’s report was not debated for very long and was then adopted on division. In a few minutes, I will explain why I can only support two of these amendments.

First, I want to highlight the hard work and dedication of the seven members of the committee who held nine hours of meetings to hear testimony and the two other senators who participated in most of the meetings. I would like to thank my nine colleagues.

I believe it is worth noting that at clause-by-clause consideration, which lasted almost five hours, for the first vote, the number of committee members increased to 13, with four new members. Although we can be pleased with this renewed interest in the work of the committee, the fact is that we now find ourselves seized with amendments that were adopted without hesitation with the support of our new recruits, whose goal, in some cases, seemed to be to return the bill to the other place.

The two amendments that I support are the following. One states that the screening officer cannot dismiss a complaint alleging sexual misconduct.

The bill already provides that a complaint alleging sexual harassment cannot be rejected by a screening officer. Initially, our colleague, Senator Clement, suggested replacing the words “sexual harassment” with the words “sexual misconduct.” It emerged at committee that this would have resulted in substituting a rather vague concept for one that is well-defined in law.

As such, the senator agreed to amend her proposal to add another reason for which a complaint cannot be rejected. In my opinion, that respects the purpose of the clause and seems entirely acceptable.

The other amendment is the removal of the words “as far as possible” with respect to the council’s obligation to prepare a roster of laypersons and a roster of puisne judges who reflect Canada’s diversity. It is important to understand that these laypersons have to apply, meet the criteria and be prepared to serve on a volunteer basis on the review panel and the public hearing panel, which are the two bodies that assess the conduct of judges who are the subject of complaints and that can impose an intermediate sanction or removal. With respect to judges not in authority, they are nominated by the Canadian Superior Courts Judges Association, which I had the honour of chairing for a few years, not freely selected by the council for the entire federal judiciary.

Those who drafted the bill therefore thought it wise to add the words “as far as possible.” because the limited pools from which the lists are drawn could prevent the board from adequately reflecting Canadian diversity. However, in law, no one is bound to do what is impossible, and since Senator Clement has convinced me that the political message is much stronger if these words are deleted, this amendment seems to me to be perfectly acceptable and consistent with the bill’s diversity objectives.

I also share the spirit of Senator Pate’s amendment around data collection, and I agree with her goal. However, I am concerned that the language is too prescriptive. As I mentioned earlier, the council is entitled to a high degree of administrative independence. In full respect for this independence, I prefer to rely on the undertakings made by the council before the committee with regard to enhancing data collection and publication, including disaggregated data. I do not see an advantage in codifying these obligations so rigidly in legislation, but I agree that the outcome is vitally important.

Unfortunately, some of the other amendments brought forward in committee appear to raise similar questions with regard to judicial independence by their overly prescriptive nature, including in connection with the management of the screening officers.

These individuals are employees of the council who are mandated to execute a purely administrative task and are not authorized to opine on the merits of what appears prima facie to be a complaint about the conduct of a judge.

On the disclosure of details related to the early processing of complaints by the screening officers and the review committee or one of its members, the process must be mindful of the potential unfair damage to a judge’s reputation at such an early stage of the process and how this may affect their ability to discharge their functions, as well as the overall reputation of the judiciary.

In addition, I draw your attention to section 17 of the United Nations Basic Principles on the Independence of the Judiciary, which reads as follows:

17. A charge or complaint made against a judge in his/her judicial and professional capacity shall be processed expeditiously and fairly under an appropriate procedure. The judge shall have the right to a fair hearing. The examination of the matter at its initial stage shall be kept confidential, unless otherwise requested by the judge.

I now turn to the two remaining amendments.

First, the committee sought to include a layperson on the appeal panel. The appeal panel’s job in the new process is to fulfill the functions normally fulfilled by an intermediate appellate court like the Court of Appeal for Ontario or the Federal Court of Appeal. The bill provides that it has the power of a Court of Appeal. The appeal panel’s job, in other words, is to ensure that the hearing panel got the law right and to correct any reviewable errors it may have made. That is why it was to be composed of five sitting judges — three chief justices and two judges.

Instead, the amendment proposes two chief justices, one judge, one lawyer and one layperson. A layperson is defined by the bill as someone who has no legal training. Respectfully, it runs contrary to what the bill seeks to achieve at that stage, being the equivalent of a Court of Appeal in makeup and powers, with comparative efficiency. I cannot support the amendment.

I remind you that the bill proposes lay participation at the two principal fact-finding stages — the review panel and the public hearing panel — where the questions are: Did the judge commit misconduct? If so, what sanction would be warranted? But not on the appeal process, which is designed to replace the Federal Court of Appeal and the Federal Court.

The last amendment, also proposed by Senator Batters, is to introduce a right of appeal to the Federal Court of Appeal for any decision of the appeal panel. Don’t be misled; the appeal panel can render interlocutory as well as final decisions.

Interestingly, a similar amendment was proposed before the committee in the other place and ruled out of scope by the chair — a decision challenged by a Conservative MP, but confirmed by a majority of committee members.

More importantly, we have to realize that an appeal to the Federal Court of Appeal on top of the intended streamlined process means that we are going to add at least a further year or a year and a half of legal proceedings before the Federal Court of Appeal in connection with each appeal that will be filed there. This would happen each time there is an appeal of a decision of the appeal panel. As I said, more than one decision of the appeal panel can be appealed in one file.

During these years, the fees for the lawyer acting for the judge will be fully paid by the taxpayer, the salary of the judge will continue to be paid and many Federal Court of Appeal judges will have to engage in the process. I submit to you that this is not a proper use of public money considering that the appeal panel is doing the job of an appeal court made up of five judges.

The whole point of Bill C-9 is to reduce timelines and costs that are unacceptable while respecting judicial independence and ensuring a fair process for the judge who is the object of the complaint. This amendment runs counter to that purpose.

Removal of a judge is a serious matter, and a judge’s security of tenure requires substantial safeguards. However, the protections included in this bill as originally presented to us are sufficient. They are fair and balanced, guaranteeing the judge — after a screening and internal review — the equivalent of a fair and open trial, followed by a fair and open appeal as a right, followed by a possibility to apply for leave to appeal to the Supreme Court of Canada.

In other words, judges facing serious misconduct were guaranteed what every other Canadian gets, and more, in terms of fair process — all of that for free. Adding to the process another court and another panel of judges was completely unwarranted and demonstrates serious lack of faith in the capabilities of the Supreme Court of Canada — our country’s apex court and a fundamental pillar of our democratic society.

It has been said in committee that the Supreme Court does not grant many appeals, and that 95% to 99% are dismissed. If you consider the books from the Supreme Court on the website, you will find that from time to time there are judgments regarding discipline and salaries of judges. When the Supreme Court feels that something must be said about judges, the court says it.

For these reasons, I think that the last two amendments must be rejected by the other place. They should carry out the sober second thought that maybe wasn’t done.

Thank you, colleagues, for your attention. I now respectfully ask that we send this bill back to the other place for further consideration, keeping in mind that we have very little time remaining before the summer recess for the adoption of a message by the other place and our subsequent decision. Thank you, meegwetch.

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