1. Opening Remarks

Bill C-9, An Act to amend the Judges Act

Standing Senate Committee on Legal and Constitutional Affairs

Minister of Justice and Attorney General of Canada

March 2023

Honourable Senators,

It is truly an honour and a pleasure to be with you today, to speak about Bill C-9, An Act to amend the Judges Act. As you know, this Bill aims to reform the process used to address complaints against federally appointed judges.

Canada’s judiciary enjoys an unparalleled and well-merited reputation for excellence and integrity. Allegations of misconduct against judges are rare, and allegations so serious that circumstances where removal from office may be warranted are rarer still. Nevertheless, an effective process for reviewing those few allegations that do arise constitutes an integral part of our justice system. It helps to secure a cornerstone of the rule of law: public confidence in the integrity of justice.

In 1971, Parliament, through the Judges Act, assigned responsibility for handling complaints against judges to the Canadian Judicial Council, or the “CJC”. There is no question that the CJC has discharged this duty in an exemplary fashion for over five decades. It is no exaggeration to say that we would not be in the enviable position we are in today, with an excellent judiciary that the public trusts, without the CJC’s tireless commitment to this duty.

Yet the CJC would be the first to point out that the legislative framework setting out the process has developed serious shortcomings. These shortcomings have become more pronounced in recent years, and they now risk undermining confidence not only in the process but also in the judiciary itself. They must be addressed.

The solution to these shortcomings is the Bill you have before you today. Bill C-9 proposes a series of reforms that comprehensively address the shortcomings of the current process. I am confident that this Bill will put in place a judicial conduct process that will serve Canadians exceptionally well for decades to come.

Before reviewing some of the Bill’s key features, let me underscore that Bill C-9 is the fruit of a thorough policy development process that followed equally thorough consultations. Those consulted include the Canadian Judicial Council, the Canadian Superior Courts Judges Association, the Canadian Bar Association, the Federation of Law Societies, and the provinces and territories. Members of the general public were also invited to participate through an online consultation paper.

Crucially, this Bill has their unanimous support. I say “crucially” because the Canadian Superior Courts Judges Association represents the day-to-day concerns of federally appointed judges from across the country. The CJC, for its part, is the body that not only has over half a century of experience managing the current judicial conduct process, but that will also manage the one proposed by this Bill.

This Bill also received all-party support in the House of Commons. The Justice Committee studied the Bill and made only two minor amendments, creating requirements for written reasons when a complaint is dismissed at the two earliest stages in the process. I will note this is already standard practice for the CJC, so straightforward to implement.

I have alluded to shortcomings of the current process. At this point, let me elaborate, in broad strokes, on four principal areas of concern and how Bill C-9 proposes to address them.

The first is efficiency. The current process takes too long and is too expensive. The Constitution rightly demands rigour and fairness in the handling of complaints against judges. Yet, when the resolution of complaints at times stretches on for years on end, with lengthy court challenges that create great expense to the taxpayer, Canadians rightly ask whether there is a better way. We have seen this situation more than once in the recent past.

Bill C-9 directly addresses this concern by making the process much more efficient. Judicial review of CJC decisions through multiple levels of court will be replaced with a streamlined appeal process culminating in a right of appeal with leave to the Supreme Court of Canada. Entrusting oversight to the Supreme Court is entirely appropriate given that judges will sit on CJC hearing panels and appeal panels, and that these bodies will, in practice, function much like trial courts and courts of appeal do in the regular court system. These reforms strike an appropriate balance between the central aim of streamlining the process while ensuring fairness to the judge.

A second shortcoming of the current process stems from the fact that it is designed to answer only one question: does the complaint warrant the judge’s removal from office? Sanctions for less serious misconduct are not expressly available. They can only be imposed with the agreement of the judge concerned.

Bill C-9 addresses this concern by providing for the power to impose sanctions for misconduct that demands some form of remedy and accountability. These include, for example, formal reprimands, and mandatory training sessions or counselling.

Third, Bill C-9 seeks to foster public confidence in the process by increasing participation of lay members. The current process has a very limited role for lay members, with one lay member involved at only one stage of the process – determining whether public hearings should be held into the conduct of a judge.

Feedback from public consultations revealed strong support for greater participation by lay persons. Lay persons would participate at two stages. They would be members of review panels, charged with imposing sanctions for less serious misconduct. They would also be members of full hearing panels, which would hold public hearings and recommend to the Minister of Justice whether a judge should be removed from office in the most serious cases.

Finally, the current process is very challenging to fund through the regular budget cycle. This is because the cost of holding public hearings to determine whether a judge should be removed from office can eclipse the rather modest day-to-day costs of the process.

Bill C-9 proposes to address this problem by providing that costs closely associated with public hearings can be paid directly from the Consolidated Revenue Fund. To ensure oversight of these costs and proper financial controls, an independent review of all such costs and of the adequacy of applicable financial controls would be conducted every five years, with the results made public. This solution elegantly balances the need for oversight of how public funds are spent with the need to ensure stable funding for this critical process.

These are just the most salient improvements to the judicial conduct process proposed by Bill C-9. There are many others, but in the interest of allowing time for questions and discussion, I will leave it at that for now. Let me conclude simply by noting that I am convinced that Canada has the strongest justice system in the world, in no small part because we have the most exceptional and committed judiciary in the world. This is the result of our sustained commitment and effort to keep our institutions healthy, and to keep our judiciary independent and strong. Bill C-9 is part of this ongoing effort. I look forward to answering your questions.

Thank you.