2. Legislative Background: Bill C-9

Legislative Background: Bill C-9, An Act to amend the Judges Act

On December 16, 2021, the Government introduced Bill C-9, An Act to amend the Judges Act, in the House of Commons. The Bill proposes reforms to the process for reviewing allegations of misconduct against federally appointed judges. The Bill was passed by the House of Commons on December 9, 2022. This document provides an overview of the Bill, which is now before the Senate.

1. Background

There are approximately 1300 federally appointed judges in Canada. They are the judges of the Supreme Court of Canada, the federal courts (Federal Court of Appeal, Court Martial Appeal Court, Federal Court, and Tax Court of Canada), and the superior courts of the provinces and territories.Footnote 1 The judicial conduct process also applies to the associate judges of the Federal Court and Tax Court of Canada (until recently called “prothonotaries”).

Section 99 of the Constitution Act, 1867 allows the judges of Canada’s provincial and territorial superior courts to hold office “during good behaviour” until age 75, and makes them removable from office (for breach of their duty of good behaviour) only by the Governor General following a vote in both Houses of Parliament. The statutes that establish the Supreme Court of Canada and federal courts apply the same conditions and requirements to the judges of these courts.

Determining when the duty of good behaviour has been breached, and whether misconduct may warrant removing a judge from office requires a thorough investigation through a fair and efficient judicial conduct process. The process must comply with applicable legal and constitutional requirements, including those imposed by judicial independence and procedural fairness.

The current process finds its origins in a case of alleged judicial misconduct that arose in the 1960s. The Houses of Parliament attempted to hear evidence and investigate. Having a judge investigated by the legislative branch proved complex and difficult, and raised concerns about the independence of the judiciary. As a result, in 1971, Parliament amended the Judges Act to establish the Canadian Judicial Council, composed of all of Canada’s federally appointed chief and associate chief justices, and charged it with investigating all allegations of misconduct made against federally appointed judges, independently from the executive and legislative branches. However, the Council was not empowered to sanction all cases of misconduct. Rather, it was only empowered to determine whether misconduct possibly serious enough to warrant removal under section 99 of the Constitution Act, 1867 had occurred. In those cases, the Council was mandated to issue a report to the Minister of Justice with a recommendation on the judge’s removal from office.

For the last few years, the Council has opened approximately 600 complaint files per year. Since its inception in 1971, the Council has completed 10 public inquiries into allegations of misconduct serious enough to potentially warrant removal, and recommended removal five times.

1.1 Shortcomings of the Current Process

The provisions creating the Council and the judicial conduct process have remained largely unchanged since 1971. These provisions have become outdated, and the process is now understood to have a number of serious shortcomings. Bill C-9 proposes to address these through comprehensive reforms, which, taken together, amount to the implementation of a substantially new process.

The main shortcomings of the current process are:

The Bill also proposes to enhance public confidence by involving members of the general public in the process. Individuals who have never been lawyers (and, therefore, who have also never been judges) would be involved in deciding on appropriate sanctions for misconduct not serious enough to warrant removal from office, as well as in deciding whether to recommend removal from office to the Minister of Justice in more serious cases.

1.2 Guiding Principles

The reforms proposed by the Bill are designed to respect and reflect a number of important considerations, as well as legal and constitutional principles that govern this area of the law:

2. Overview of the Proposed New Process as Set Out in Clause 12 of the Bill

Little of the judicial conduct process is currently set out in the Judges Act. Most of the current process is set out in policies and by-laws made by the Canadian Judicial Council. This Bill would change that, setting out the process in detail in the Act.

In what follows, all section numbers refer to new provisions that the Bill proposes to add to the Judges Act. These provisions are contained in clause 12 of the Bill.

2.1 Initial Review of Complaints, Review Panels and Sanctions for Misconduct not Serious Enough to Warrant Removal

Currently, the Council only has the power to address misconduct so serious that removal may be warranted by referring such conduct to a body called an inquiry committee, composed of a majority of Council members (designated by the Council) and a minority of lawyers (designated by the Minister of Justice). Less serious forms of misconduct may be addressed by the judge agreeing to voluntary remedial measures, but nothing can oblige the judge to do so. Moreover, the task of determining at the start of the process whether alleged misconduct is so serious that removal may be warranted falls to a single Council member. This has led to criticisms that the process is insular and unaccountable, lacking participation by members of the general public.

Under the proposed new process, like under the current one, anyone would be able to make a complaint about a federally appointed judge. However, the process proposed by the Bill is designed to address all misconduct, including misconduct not serious enough to warrant removal from office.

Moreover, the Council would be required to maintain a public roster of “lay persons”, i.e. members of the general public who have never been lawyers, and a public roster of judges who are not Council members (sections 82-85). Those named to these rosters would be eligible to sit as members of the process’ various decision-making bodies.

Importantly, review panels would proceed in writing only, without hearings (section 100). This would make their process more efficient while still ensuring fairness for most complaints. However, procedural fairness requirements vary, and in some circumstances a judge may be entitled to test and adduce evidence at a hearing. A judge dissatisfied with the outcome of the review panel’s process would therefore have an option to request a hearing before a reduced, three-person hearing panel (a Council member, a judge who is not a Council member, and a lawyer) (sections 104, 110). This panel’s hearings would be public, with a lawyer appointed to present the case against the judge. It would have the same powers to impose sanctions as the review panel, and its decisions could be appealed to an appeal panel (described below) (sections 113, 116). At any point, if the reduced hearing panel hears evidence suggesting that the allegations against the judge are in fact so serious that removal may be warranted, it would end its proceedings and refer the matter to a full hearing panel (described next) (section 112).

2.2 Misconduct so Serious that Removal from Office May be Warranted

Currently, where allegations have been found so serious that removal may be warranted, public hearings are held by inquiry committees composed of a minority of lawyers designated by the Minister of Justice and a majority of Council members. Inquiries, as opposed to adjudicative (or court-like) proceedings, typically have few pre-set procedures, and the roles of the lawyers involved may vary from inquiry to inquiry. In the context of judicial conduct proceedings, this flexibility has proven problematic, resulting in disagreements about what procedures are fair. This has in turn led to legal challenges in the form of judicial reviews in the federal courts, adding to process costs and delays.

Under the proposed new process, if a review panel (or a reduced hearing panel) finds a complaint so serious that removal may be warranted, the complaint would be forwarded to a full, five-person hearing panel instead of to an inquiry committee. These hearing panels would have the following characteristics:

2.3 Appeals

Currently, once an inquiry committee finishes public hearings, it submits a report to the rest of the Canadian Judicial Council, informally called “Council of the Whole”. This body then considers the report, and issues the Council’s final report to the Minister of Justice. This body’s procedures and remedial powers are unclear, and decision-making for a body whose quorum is 17 has proven difficult. Judges who have genuine concerns with the way the process has been conducted have thus applied for judicial review.

Judicial reviews of Council decisions have been by far the most important driver of process delays and high costs. In addition, such judicial reviews run the risk of creating the perception that the judge is trying to frustrate the process to prevent a finding that removal from office is warranted. A judicial review brought in Federal Court can be appealed to the Federal Court of Appeal, and from there to the Supreme Court of Canada with leave of the Court. This usually takes years.

To remedy the problems of Council of the Whole and judicial review through several levels of court, the proposed new process would replace both with efficient appeal mechanisms:

2.4 New Funding Mechanism and Financial Controls

Routine, day-to-day costs of the judicial conduct process are relatively stable from year to year. These include the costs of screening and processing complaints, and are funded through the Canadian Judicial Council’s annual budget.

However, public hearing costs, i.e., the costs for cases requiring hearings for serious complaints, which currently include the cost of judicial reviews, can easily eclipse routine costs in any given year, even reaching the millions. These costs are unpredictable and highly variable because the number of these cases varies from year to year.

Consequently, there is no way to accurately forecast overall expenditures for a given year, making funding the process through the regular budget cycle highly challenging. In addition, these costs are ultimately non-discretionary: hearings for judges facing possible removal from office are constitutionally required. This makes direct draws on the Consolidated Revenue Fund with appropriate oversight mechanisms the best approach for ensuring stable process funding.

The Bill therefore proposes the following funding mechanism for the new judicial conduct process:

The Bill also proposes new financial control mechanisms. An independent review of all process costs paid from the Consolidated Revenue Fund, and of the adequacy of policies meant to ensure proper financial controls, would be required every five years. To ensure respect for the independence of the process, precisely who would conduct these reviews would be left up to the Office of the Commissioner for Federal Judicial Affairs and Canadian Judicial Council. However, they would be required to retain a qualified expert to conduct reviews, and the results would be made public, along with any recommendations for better cost management (section 147).

Court decisions have suggested that a judge is eligible for payment from public funds of legal fees incurred during the conduct process. Currently, this is not set out in any federal statute or policy. The Bill would expressly limit a judge’s right to paid legal counsel to the stages of the judicial conduct process itself, including any appeals. Legal fees incurred for any other purpose, including attempts to circumvent the prohibition on judicial review, would not be covered (section 146).

Finally, section 145 would allow the Commissioner for Federal Judicial Affairs to make guidelines governing the payment or reimbursement of any fees, allowances or expenses. Any departures from equivalent Treasury Board policies would have to be explained. All guidelines would be subject to review as part of the independent review process.

3. Other Provisions of the Bill

Clauses 1, 3, 5-6, 11 and 13 of the Bill make non-substantive adjustments to certain sections of the Judges Act. These adjustments are solely focused on making the Act more readable.

Clauses 2, 4, and 7-9 of the Bill make consequential amendments to certain sections of the Judges Act to ensure that they work effectively with the provisions of the new process.

Clause 10 of the Bill repeals sections of the Judges Act that establish the current judicial conduct process to allow for them to be replaced by the provisions contained in Clause 12.

Clauses 14-16 of the Bill are transitional provisions: