Senator Plett: This is really just a simple question, Senator Cotter. I do have a problem with a minister not appearing. We do have a bit of a policy, “no minister, no bill.” Now, I understand we can’t get them all the time. But especially in the case of the Standing Senate Committee on Legal and Constitutional Affairs, what would you suggest, Senator Cotter, when the committee has other questions for a minister, and the minister refuses to appear? What’s your suggestion as to how we deal with that situation?

Senator Cotter: Thank you, Senator Plett. Ever so briefly, I’m relatively junior to the role of chairing committees and don’t have the wealth of experience that you do of ministers attending or not attending committees. At a certain point, I’m sure it becomes excessive to ask a minister to show up repeatedly with respect to the same bill. These are important questions. They were well explored with the minister in the first go-round. We probably sharpened our focus as we edged toward amendments, but it is not as though we did not hear from the minister on the points that were in contention.

Senator Plett: Thank you, Senator Cotter, for the report. We have all been waiting anxiously, and here we have it.

Senator Cotter, I note that the committee decided not to pass an amendment to the bill regarding the inclusion of suspension without pay to the list of possible disciplinary measures, even though it was recommended by witnesses. Bill C-9 does include less serious options — for example, a reprimand requiring an apology — and then it seemingly jumps over to the very serious penalty of removal from the bench, with nothing in between. Given that suspension without pay seems to work well in Ontario — according to the Ontario Judicial Council — and it was called for by other witnesses, why would the committee ultimately decide not to include this in the bill?

Senator Cotter: As a person’s tombstone read, “I expected this.” Senator Plett, I expected this question, so thank you. Although I am tempted to say that Senator Dalphond could provide a more comprehensive answer, let me share with you — on behalf of the committee — the deliberations and what I think were, perhaps, the determining factors that led to people voting against adopting the amendment. It was an amendment that was carefully investigated and considered in advance by Senator Batters and the committee.

It is true that a number of provinces have that included in their judicial misconduct proceedings in relation to provincial court judges; you are correct about that. Some of the most articulate witnesses suggested it. In fact, probably the leading academic authority on this topic is Professor Richard Devlin from the Schulich School of Law at Dalhousie University, and it is one of the recommendations that he made.

Two arguments were advanced to express concern about that particular amendment. One of them was a practical one: If the sanction is suspension of a judge with pay that tends to mean a free vacation for that judge. It is embarrassing to the judge, but it burdens the other judges who have to carry that judge’s workload. It didn’t feel very much like an actual sanction.

The second argument is somewhat more subtle — which justice officials shared with us and which, I think it’s fair to say, Senator Dalphond advanced forcefully: The structure of treating judges’ pay is required to be governed by a compensation process every four years. It is unconstitutional in this line of argument for the salary of that judge to be reduced. If you suspend a judge, even as a sanction, and reduce their pay, there is a fairly strong argument — I don’t want to say that it’s determinative — that it would be an unconstitutional interference with judicial independence.

I think there is no question — and Senator Batters articulated this well — that there is a gap in the series of sanctions, but this one presented different problems in relation to the judiciary as opposed to so many other lines of work, whether it’s lawyers, police officers or any others with respect to which you and I are familiar.

That’s the best I can do in terms of describing the thinking of the committee in a close decision not to adopt that amendment.

Hon. Brent Cotter moved the adoption of the report.

He said: The Judges Act applies to federally appointed judges, as many of you will know, who are often called superior court judges. This applies to judges, for example, of the Supreme Court of Nova Scotia or to the Court of King’s Bench of Saskatchewan, the Tax Court of Canada, federal courts, the Federal Court of Appeal, courts of appeal across the country and the Supreme Court of Canada. It doesn’t apply to provincial court judges. Those are governed in provincial jurisdictions.

This bill, Bill C-9, is intended to amend the Judges Act by modernizing the regime by which federally appointed judges are investigated for misconduct pursuant to the responsibilities of the Canadian Judicial Council. This would be a new system for judicial misconduct proceedings.

The objectives of this bill — as I hope we will hear eventually from its sponsor, Senator Dalphond — are to improve the effectiveness and efficiency of the system and, in turn, reduce delays and costs. Some of these, as you may conclude from earlier discussions when this bill was spoken to in this chamber, indicated that in some cases millions of dollars of public money have been expended in lengthy and sometimes questionable processes leading to consideration of judicial misconduct.

Key changes to the bill include the ability to impose sanctions other than merely the recommendation for removal from office; the limiting of a judge’s ability to seek judicial review; judicial review by the federal courts is replaced with an internal Canadian Judicial Council mechanism; and a right to seek leave to appeal directly to the Supreme Court of Canada.

The new Canadian Judicial Council misconduct process has five possible steps for the review of a complaint against a superior court judge. The proposed new process — and I will try to be brief here — begins with an initial screening by a council official. Any complaint that cannot or should not be dismissed as completely without merit is then reviewed by a review member followed by the review member being able to dismiss the complaint or refer it to a review panel. The review panel can dismiss the complaint or uphold it and impose remedies up to but not including removal from office, such as requiring an apology or mandatory professional training.

If a judge wishes to appeal the decision, they can appeal the decision to a reduced hearing panel for a matter that, ultimately, can go to a full hearing panel if it is serious enough to warrant potential removal from office. A full hearing panel functions like the public court with the process structured as an adjudicative and adversarial hearing. The full hearing panel determines whether a judge should be recommended for removal from office.

If the judge who is the subject of the complaint or the presenting counsel — that is, essentially the person, usually a lawyer styled as the prosecutor — wishes to appeal the full hearing panel decision, then that matter is referred to an appeal panel and that appeal panel functions like a Court of Appeal and has the same powers. If, ultimately, the appeal panel recommends removal from office, according to the version of the bill received in the Senate, the judge’s remaining recourse would be to seek leave to appeal to the Supreme Court of Canada. If the decision in favour of recommended removal from office is sustained and all of these options for appeal are exhausted, a recommendation for removal from office is reported to the Minister of Justice, who may place the question before both houses of Parliament to decide. It is a process intended to be rigorous but to respect judicial independence.

At committee, in consideration of Bill C-9, six amendments were made to Bill C-9. I will try to highlight them briefly so you will know the changes that were made for our consideration in the chamber.

All of the substantive amendments that were made to the bill apply to clause 12. Now that sounds like a simple matter. However, clause 12 has 81 sections. It is the heart of the change.

I will not read all 81 sections, but they make up the bulk of Bill C-9. That is where the changes are set out with one technical exception. The first amendment adopted by the committee, which appears in your report, is that various sections of clause 12 were amended at committee to add a layperson at every stage of the decision-making process in judicial misconduct consideration.

The bill provides for a layperson to be one of three members on a review panel, one of five on a full hearing panel and laypersons are now included in the decision making with respect to anonymous complaints and on what is called a “reduced hearing panel.”

The composition of the appeal panel was initially designed to be five judges. The amendment changes the composition of that appeal panel to three judges, one lawyer and one layperson.

The second amendment is in relation to diversity. The original bill stated in section 84:

As far as possible, the Council shall name persons who reflect the diversity of the Canadian population to the roster of judges and to the roster of lay persons.

There will be a pool of judges and a pool of lay people who will then be drawn upon to participate in the consideration of complaints against the judges, and the language “as far as possible” was thought to be a challenging, unfortunate and unnecessary phrasing. It was suggested that it weakened the commitment to diversity, and this amendment removed the “as far as possible” phrase.

A third amendment was the publication of decisions. An amendment was adopted at committee to require the Canadian Judicial Council to publish all decisions as soon as possible. Under the bill, the Canadian Judicial Council is already required to publish decisions and reasons of full hearing panels and appeal panels. This amendment goes further and will require the Canadian Judicial Council to publish all dismissals of complaints, and essentially provide the reasons for those dismissals of screening officers, reviewing members and review panels throughout the process.

A fourth amendment was related to sexual misconduct. In the original version of Bill C-9, complaints alleging sexual harassment or discrimination on a prohibited ground could not be screened out at an initial screening stage and had to go to the next level. Committee members were concerned that the phrase “sexual harassment” was too narrow and would not capture other forms of sexual misconduct. Various sections of clause 12 are amended to add “sexual misconduct” to the types of allegations that cannot be screened out at the initial stage.

The fifth amendment is related to disaggregated data collection. The committee also adopted a series of amendments to expand the collection of data and reporting requirements of the Canadian Judicial Council that address ethnic and national background, Indigeneity, race, religion, sex, gender and disabilities, as well as that the annual report capture a range of those reporting-by-category pieces of information.

Finally, an amendment was adopted by committee to restore the ability of a judge or the presenting counsel — that is, the prosecutor — to appeal directly to the Federal Court of Appeal prior to any consideration by the Supreme Court. The bill had limited a judge’s ability to appeal outside of the Canadian Judicial Council process other than with leave to the Supreme Court of Canada, and an additional level has been returned to the bill in this amendment. The amendment is intended to permit Canadian Judicial Council decisions to go to the Federal Court of Appeal, and then, ultimately, either the judge or presenting counsel would have the entitlement to seek leave to appeal that decision to the Supreme Court of Canada.

As well, there is a small coordinating amendment to align clause 16 with this last amendment, which brought back the Federal Court of Appeal into the picture.

In conclusion, let me say that this bill has an extensive series of amendments by the committee. The bill is the modernization of a 40-year-old or so process that has come under significant criticism, and I think it deserves this chamber’s consideration in modernizing the judicial misconduct process.

Thank you.

The Hon. the Speaker: Senator Cotter, your time has expired. Are you asking for five more minutes?

Senator Cotter: Yes.

The Hon. the Speaker: Senator Cotter, your time has expired. Are you asking for five more minutes?

Senator Cotter: Yes.