An Hon. Senator: Hear, hear.

Hon. Patti LaBoucane-Benson (Legislative Deputy to the Government Representative in the Senate): Honourable senators, I have the honour to table the answers to the following oral questions:

Response to the oral question asked in the Senate on December 1, 2021, by the Honourable Senator Wallin, concerning online harm.

Response to the oral question asked in the Senate on December 16, 2021, by the Honourable Senator Miville-Dechêne, concerning online harm.

Response to the oral question asked in the Senate on September 28, 2022, by the Honourable Senator Klyne, concerning the RCMP Heritage Centre.

Response to the oral question asked in the Senate on November 17, 2022, by the Honourable Senator Black, concerning the Canadian Association of Fairs and Exhibitions.

Response to the oral question asked in the Senate on February 7, 2023, by the Honourable Senator Cordy, concerning federal public service jobs — Statistics Canada.

Response to the oral question asked in the Senate on February 7, 2023, by the Honourable Senator Cordy, concerning federal public service jobs — Treasury Board of Canada Secretariat.

(Response to question raised by the Honourable Pamela Wallin on December 1, 2021)

The Government of Canada is committed to continue efforts to develop and introduce legislation as soon as possible to combat serious forms of harmful online content to protect Canadians and hold social media platforms and other online services accountable for the content they host. Per the mandate letter for the Minister of Canadian Heritage, this legislation will be reflective of the feedback received during the recent consultations.

The government designed this consultation to allow stakeholders and industry to submit business information in confidence and to allow victims groups, equity deserving communities and other parties to share their experience with harmful content online privately. As such, the submissions were not made public.

(Response to question raised by the Honourable Julie Miville-Dechêne on December 16, 2021)

The government remains committed to taking meaningful action to address child sexual exploitation content and other harmful content online. Harmful content overall discourages certain groups from speaking, prevents valuable voices from being heard, and undermines our democratic values. Child sexual exploitation and abuse specifically have lifelong consequences and are among the most egregious harms we see online.

On July 29, 2021, the government launched a public consultation seeking Canadians’ views on a detailed technical discussion paper, which outlined a proposal for regulating online platforms and combating certain types of harmful content. The government’s consultation was an important step in establishing a regulatory framework that ensures Canadians are safe when they participate in social media activities. We will continue our work to develop and introduce legislation as soon as possible to protect Canadians, including minors and victims of child sexual exploitation online, and hold social media platforms and other online services accountable for the content they host.

(Response to question raised by the Honourable Marty Klyne on September 28, 2022)

The RCMP Heritage Centre falls under the purview of the Minister of Canadian Heritage. In September of this year, the RCMP Heritage Centre launched a series of national engagements to seek the views of Canadians regarding a possible national RCMP Museum. The RCMP Heritage Centre is gaining valuable insights as to how Canadians, particularly Indigenous peoples and people from equity‑deserving groups, feel about it and its future. The government looks forward to learning more about these and how they will be addressed going forward, particularly as the government considers the Heritage Centre’s future as a possible national museum.

(Response to question raised by the Honourable Robert Black on November 17, 2022)

Canadian Heritage’s (PCH) Building Communities through Arts and Heritage program (BCAH) funds arts and heritage festivals, Two-Spirit, Lesbian, Gay, Bisexual, Transgender, Queer and/or Questioning, Intersex (2SLGBTQI+) events, and Indigenous cultural celebrations such as pow-wows.

BCAH Local Festivals component supports eligible events that demonstrate sufficient arts and heritage activities and present local performing artists, cultural carriers, the work of local creators, or aspects of local heritage as a primary component. Agricultural fairs and exhibitions remain eligible for funding should they meet all eligibility criteria.

Activities that cannot be supported include any events of a commercial nature, including markets and tradeshows; sports or recreational activities; and fundraising and competitions.

BCAH supported 29 agricultural fairs in 2019-20 and 28 in 2020-21 which demonstrated sufficient arts and heritage activities to meet program criteria.

While some CAFE members may not be eligible for support through BCAH, it is possible they may draw on Innovation, Science and Economic Development programs.

(Response to question raised by the Honourable Jane Cordy on February 7, 2023)

Statistics Canada reports on the labour market experience of Black Canadians using data from both the Labour Force Survey and the Census of Population. Data is publicly available in the following tables:

•Labour Force Survey — Table 14-10-0373-01 Labour force characteristics by visible minority group, three-month moving averages, monthly, Canada, provinces and territories

•2021 Census of Population — Table 98-10-0446-01 Labour force status by visible minority, immigrant status and period of immigration, highest level of education, age and gender: Canada, provinces and territories

Data from the Labour Force Survey can be disaggregated to measure the total number of Black employees in the federal government public administration.

(Response to question raised by the Honourable Jane Cordy on February 7, 2023)

The government has launched a suite of initiatives to support departments in improving diversity, equity and inclusion and to help equity-seeking employees, including Black employees, to advance to leadership roles. Every department manages its own human resources, program and initiatives. Centrally, the Office of the Chief Human Resources Officer (OCHRO) collects and publishes qualitative and quantitative data to better understand employment equity representation gaps and the perceptions of equity-seeking employees through the Public Service Employee Survey. These unprecedented levels of disaggregated enterprise data on the composition of 21 employment equity subgroups, including Black, Métis and Inuit employees, enable more granular analysis and is a foundation for tracking progress. OCHRO also has developed tools such as the Maturity Model on Diversity and Inclusion to help departments measure their level of advancement in diversity and inclusion and measuring progress thereafter.

The 2021-22 Management Accountability Framework (MAF) included three questions regarding hiring goals and initiatives for Employment Equity groups. Two questions specifically asked the 34 assessed departments to include any hiring goals for Black candidates, for the general workforce and the EX cadre. In this cycle some departments also began developing initiatives to remove barriers to employment for equity-seeking groups, including Black employees.

Hon. Claude Carignan: My question is for the Leader of the Government. Leader, the government’s official languages track record is a disaster. We saw further evidence of that when the Commissioner of Official Languages tabled his 2022-23 annual report a few days ago.

The report shows that, between 2013-14 and 2022-23, there was an increase of over 300% just in the number of admissible complaints about institutions that serve the travelling public. Compared to the previous year, it is an increase of 500%.

The reason for this is not just that there have been more complaints about Air Canada. There have been more complaints about all of the other services, including the Canadian Air Transport Security Authority, the airports, VIA Rail and the Canada Border Services Agency.

Can you explain why this government is doing such a terrible, disastrous job on official languages?

Hon. Patti LaBoucane-Benson (Legislative Deputy to the Government Representative in the Senate) tabled the reply to Question No. 216, dated March 8, 2023, appearing on the Order Paper and Notice Paper in the name of the Honourable Senator Plett, regarding the National Capital Commission.

Hon. Patti LaBoucane-Benson (Legislative Deputy to the Government Representative in the Senate) tabled the reply to Question No. 158, dated May 5, 2022, appearing on the Order Paper and Notice Paper in the name of the Honourable Senator Plett, regarding the National Monument to Canada’s Mission in Afghanistan — Canadian Heritage.

Hon. Patti LaBoucane-Benson (Legislative Deputy to the Government Representative in the Senate) tabled the reply to Question No. 158, dated May 5, 2022, appearing on the Order Paper and Notice Paper in the name of the Honourable Senator Plett, regarding the National Monument to Canada’s Mission in Afghanistan — Veterans Affairs Canada.

Hon. Rose-May Poirier: Honourable senators, I rise today at second reading as critic of Bill C-13, An Act to amend the Official Languages Act, to enact the Use of French in Federally Regulated Private Businesses Act and to make related amendments to other Acts, also known as the modernization of the Official Languages Act.

At long last, esteemed colleagues, after a process that started in the Senate in 2017 when the Senate Committee on Official Languages began its study of the modernization of the Official Languages Act, after numerous federal government promises over the past five years, a bill was introduced a few months before an election and died on the Order Paper. Now here we are with a bill to modernize the Official Languages Act.

I would be remiss if I began my speech at second reading without recognizing the work that our committee has been doing since 2017 on this subject. As a committee, we met with over 300 witnesses and visited Manitoba, Prince Edward Island and New Brunswick. We also met with young Canadians to hear their perspective on the modernization of the Official Languages Act, because changes to the act will benefit future generations, not old-timers like us, dear colleagues.

Finally, I want to say a few words about my dear colleague, Senator René Cormier, the chair of the committee. He and I had to work together on a regular basis. I couldn’t ask for a better committee chair to direct the work we do. Thank you.

Colleagues, as you likely know, the Official Languages Act was implemented in 1969 and has quasi-constitutional status. The last major update took place in 1988, and there was a desperate need for renewal.

Since I became a member of the Standing Committee on Official Languages in 2012, the comments have always been similar: the act does not reflect the realities of the 2000s, it lacks teeth, the powers of the Commissioner of Official Languages are too limited, and so on. The committee’s study may only have begun in 2017, but it was inspired by all the studies done in previous years.

[English]

Allow me to share examples, honourable senators. The Standing Senate Committee on Official Languages tabled a report on May 31, 2017, entitled, Horizon 2018: Toward Stronger Support of French-language Learning in British Columbia. A main recommendation from that report was for federal institutions to consider the needs of official language minority communities when selling real estate. If Bill C-13 is adopted, this initiative will be reflected in the modernized Official Languages Act. Just earlier this year, I met with the representatives of the Fédération nationale des conseils scolaires francophones, and they pointed this out as an important need. Thankfully, the amendments by the committee in the other place ensure this was added to the bill.

This is one of many amendments contained in Bill C-13 that were inspired by stakeholders and the lobbying of governments and parliamentary committees. It is a testament to the special studies our standing committees do. We have the ability and flexibility to invest deeply into the subject over several months, if not years, to finally propose recommendations to the government. These recommendations can be used as a basis for policy choices by the government of the day or future ones.

The picture of Canada’s linguistic landscape has evolved significantly. In the last 52 years, the demographic weight of francophones has declined every year in Quebec as well as in Canada outside Quebec. In 1971 — the first year the census gathered data on languages — 27.5% of Canadians had French as a first language, while outside of Quebec, it was 6.1%. Fast forward 50 years to the latest census in 2021, and the proportion is now at 21.4% of Canadians who have French as a first language, and outside Quebec, the proportion is at 3.3%.

[Translation]

In a report published on August 17, 2022, Statistics Canada stated the following, and I quote:

In fact, the number and proportion of Canadians with English as their first official language spoken have been rising since 1971, the first year the census collected information on first official language spoken.

Obviously, since English is more prevalent in Canada and abroad, it is understandable that the use of that language is growing in our country as a result of immigration. Immigration remains the main reason for the decline in francophones’ demographic weight in Canada.

However, bilingualism and linguistic duality are still guiding values for our country, and the government has a duty to protect French across the country. That is why we need an ambitious francophone immigration policy that gives francophone communities outside Quebec the opportunity to keep pace. For example, in New Brunswick, as in the rest of Canada, there is a labour shortage in the health sector.

It is important that a francophone immigration policy take into account the various needs of francophone minority communities, such as labour in the health sector.

Statistics Canada cites two other factors to explain the demographic decline: an older population on average, because generally speaking, there are more deaths in an older population, and incomplete transmission of French from one generation to the next.

The federal government has a key role to play in ensuring that French is transmitted from generation to generation with minimal loss. Initiatives such as the Action Plan for Official Languages are essential for intergenerational transmission of French, especially in the current context where French is in decline across the country.

[English]

It is for this reason that Part VII of the Official Languages Act must be modified. Part VII indicates the Government of Canada’s commitment to enhancing the vitality of English and French linguistic minorities through positive measures. For several years, stakeholders were asking the government to improve the implementation of Part VII. Now, with Bill C-13, the hope is for the government’s responsibilities to be clear and for the rights of English and French linguistic minorities to be respected by the government.

[Translation]

For instance, it is also in Part VII that Bill C-13 proposes to add an amendment concerning the enumeration of rights holders. According to the Fédération nationale des conseils scolaires francophones, the French-language school network in nine provinces and three territories had nearly 173,000 students in the 2021-22 school year.

However, there could be even more. According to the 2021 census, 897,000 children under the age of 18 on December 31, 2020, were eligible for primary and secondary instruction in the minority official language. This means that 304,000 children were eligible for instruction in English in Quebec, and 593,000 were eligible for instruction in French outside Quebec. Statistics Canada also reports the following:

In Canada outside Quebec, 292,000 school-aged children attended a regular French program at a primary or secondary French-language school in Canada, representing 64.7% of eligible children aged 5 to 17. . . . In Quebec, 175,000 school-aged children attended an English primary or secondary school in Canada, representing 76.2% of eligible children aged 5 to 17 in this province.

For French and English to survive in a minority context, it is imperative that these children be able to receive their education in their language to increase the chances that French and English in the minority context will be passed down from generation to generation. For linguistic minority communities, it is crucial for our survival and our full development that transmission of the language and culture begin in the classroom. From an early age, children build relationships with friends who speak like they do and are immersed in their culture throughout their school years.

[English]

I would like to take a moment to highlight what the Official Languages Committee heard during its first report on the study of the modernization of the Official Languages Act: the viewpoint of young Canadians. The changes that Bill C-13 is proposing are essentially for them — not as much for us at our age. These changes are for our children, but most likely our grandchildren. When we met with youth representatives, what stood out for me was their determination to learn both languages. Bilingualism and linguistic duality were clear values they supported and respected. We are doing this work for them, and here are some of the testimonies that were heard, starting with Thomas Haslam:

It is these opportunities, provided and sustained by the federal government, that motivate young Canadians to pursue bilingualism and mutually express their cultural identities to others. With these experiences, Canadian youth are exposed to the French language in a different intensity to perhaps that which they have previously encountered. By returning to their communities with newfound skills and aroused interest, participants of these public speaking competitions, student exchanges, francophone games and youth assemblies can further embrace the culture of their region and help promote the growth of the French language in their communities.

The following is from the witness Gabriela Quintanilla:

We need federal help to promote linguistic duality. I can no longer face a provincial official or manager and be ridiculed because I dared to ask him if there are driving courses in French. I no longer want to enter an airport and feel like a burden because I answered them in French when they greeted me with “Hello, bonjour”. I no longer want to be intimidated in a public place because I choose to speak French with my friends. I no longer want to hear students in French immersion programs say they no longer speak French because of their linguistic insecurity.

[Translation]

As these quotes show, the committee heard heartfelt pleas from young Canadians about linguistic duality and bilingualism.

According to a survey conducted in 2021 by the Commissioner of Official Languages, support for official languages remains strong, and a strong majority continues to support teaching the other official language as a second language. Net support for the Official Languages Act was around 81% for online respondents and 87% for telephone respondents. Fully 91% of telephone respondents and 86% of online respondents agreed with the statement that “English and French should continue to be taught in elementary schools in Canada.” Clearly, Canadians across the country support these values.

[English]

Furthermore, when it comes to the Official Languages Act, stakeholders have repeatedly asked for better leadership from the federal government. Since 1988, the leadership to coordinate and apply the law has become a bigger and bigger issue. It was more of a decentralized approach with the Minister of Canadian Heritage playing a role, but the Treasury Board was also in charge of certain provisions. It was confusing, to say the least, and applying the law could be challenging. Stakeholders demanded to have a centralized approach to the coordination of official languages. During our study and our pre-study, this was one of the most important questions: Should it be Canadian Heritage or the Treasury Board? The further along we went into the study, momentum was gaining to have the Treasury Board in charge of coordinating the law. This was the position of the committee in 2019, and, thankfully, the committee in the other place amended Bill C-13 to give this role to the Treasury Board. Stakeholders are hopeful that now the law will be better applied within the public service, as well as within cabinet, to have stronger leadership for the respect of the Official Languages Act.

[Translation]

Take, for example, the lawsuit filed by the Fédération des francophones de la Colombie-Britannique, which alleged that the federal government had not fulfilled its language obligations when it implemented a labour market development agreement. After the case spent 10 or so years before the courts, the Federal Court of Appeal recognized in January 2022 that the federal government had failed to enhance the vitality of that province’s francophone communities and required that it make changes.

In March 2022, however, the same month that the government introduced Bill C-13 to protect minority language communities, it initially announced that it wanted to appeal the decision and then decided at the last minute not to take French-speaking minorities to the Supreme Court.

This is just one of many situations that illustrates why we need strong leadership within the cabinet to ensure respect for the language rights of French-speaking minorities outside Quebec and anglophones in Quebec. The federal government said it was championing the language rights of minority language communities, but at the same time, it wanted to appeal a ruling in favour of these communities.

Strong, centralized leadership is therefore essential to the full recognition of linguistic minority rights. What happens when those rights are not protected? We have an officer of Parliament, the Commissioner of Official Languages, who, since 1970, has ensured that the status of each of the official languages is recognized and that the spirit of this act is respected.

The commissioner wears many hats, serving as ombudsman, promoter, educator, rapporteur and much more. The commissioner has a number of tools at his disposal for encouraging the federal government and organizations subject to the act to comply with it. However, it has to be said that these powers now need modernizing as well.

Colleagues, you may remember the former commissioner of official languages, Graham Fraser, who concluded in a report released at the end of his 10-year term that he had done everything he could to get Air Canada to meet its language obligations. Let me read a passage from the report:

Like my predecessors, I have used the various powers conferred on me under the Act to try to compel Air Canada to better fulfill its language obligations to the travelling public and have had little success. After hundreds of investigations and recommendations, after an in-depth audit and after two court cases—including one that went to the Supreme Court of Canada—the fact remains that my numerous interventions, like those of my predecessors, have not produced the desired results.

He also goes on to say the following:

Despite the sporadic improvements and sometimes-promising action plans, the time has come to acknowledge that my powers under the act are inadequate with respect to Air Canada. My predecessors and I have used all of our powers and made hundreds of recommendations to compel Air Canada to meet all of its language obligations towards the travelling public, but none of these efforts have been enough.

As you can see, esteemed colleagues, the commissioner used every tool possible. I don’t want to focus solely on Air Canada, but it is the example that has been continually cited since the day the Official Languages Act came into force. The language rights of all Canadians must be respected, and the commissioner needs more tools than just simple recommendations to ensure that everyone fully complies with the act.

[English]

And the leadership within government is not limited to cabinet. It also goes to the public service to have leadership positions in various departments that require proficiency in both languages. It goes to institutions, such as our courts, to improve equal access to justice in the official language of their choice, and for a greater number of decisions to be provided for immediate translation.

These are all values that we hold dear and are essential for the advancement of both French and English in Canada, and, without a major review of the law since 1988 — a time when a phone was only a landline, but now it contains the world in our pockets — it was well overdue to review the law and bring the necessary changes in order to ensure the survival and advancement of English and French in Canada.

But is Bill C-13 perfect? I don’t believe it is. I believe there are certain opportunities missed by the government. For example, we received the bill on May 18, 2023, 14 months after its first reading in the other place. The government always controls the agenda, whether it is a majority Parliament, a minority Parliament without a supporting party or with a supporting party like we have in our current Parliament.

A government can only blame the opposition so much for a bill being delayed, especially a bill where the opposition voted in favour at every step of the way. Now, we are being asked to rush a bill through before summer. The government asked us to do a pre-study a year ago. This must be some kind of record for the longest delay between the beginning of a pre-study of a bill and the end of second reading of said bill. Furthermore, the bill comes back with close to 50 amendments. This is not how Parliament was meant to work. This is not how the best interests of Canadians are served.

The modernization of the Official Languages Act should have been a chance to celebrate an historic moment and to reaffirm our commitment to bilingualism and linguistic duality. Instead, the results have been divisive. Anglophones in Quebec still have concerns with C-13 and the reassurances given by the government haven’t satisfied them so far. Meanwhile, francophones outside of Quebec are exhausted from waiting, and every day this bill is further delayed they become more nervous. Linguistic communities across the country deserve to jointly celebrate the advancement of their rights by the federal government of Canada and to not be divided by the issue.

Honourable senators, it is difficult to comprehend how the government could present Bill C-13 with such concerns remaining and to take so much time before we could look at it with sober second thought. In 2019, when the committee presented its report on its study of the modernization of the Official Languages Act, the preface ended with this paragraph:

The federal government has everything it needs to update the Act, which is at the heart of Canada’s social contract. Together, let’s make equality between the two official languages a reality that every Canadian can experience every day, in a real, tangible way, right across the country.

I do understand the COVID pandemic delayed the bill’s introduction. However, I have a hard time understanding how, even with all the work that had been done by the Standing Senate Committee on Official Languages in 2017, by the Commissioner of Official Languages and by all the stakeholders, like FCFA and QCGN, submitting comprehensive briefs; the government’s own consultations; a white paper and Bill C-32 from the previous Parliament, the Official Languages Committee in the other place still had to go over 200 amendments, adopting 50 of them. Now, here we are, at a quarter to midnight, having to hurry a bill through because the government could not get its act together.

[Translation]

However, is Bill C-13 good for the language rights of minority communities? It is a step in the right direction.

Thanks to some amendments made by the House of Commons Standing Committee on Official Languages, the modernization of the Official Languages Act is more responsive to the needs of minority communities.

As the statistics show, the French fact is in a precarious position in Canada, and the impact of any changes to the act will be felt in the coming years. Access to education is key to the vitality of all official language minority communities. Over 35% of francophones in minority communities are not enrolled in French school, and nearly 24% of anglophones in minority communities are not enrolled in English school.

The evaluation of Bill C-13 will largely be based on advances in access to education for rights holders and on the demographic weight of francophones in the next census. Those advances will depend on the federal government’s leadership.

In closing, honourable senators, in my opinion, the government should have given the Senate the latitude necessary to provide thorough sober second thought on Bill C-13, particularly given the many amendments that were presented following our pre-study.

After all, our committee has special expertise because the same committee members have been through all this before.

Why not give us the time to study the bill properly, rather than forcing us to study it in haste? Sober second thought would have been beneficial not only to improve the bill, if necessary, but also to provide comments and observations that would be useful for any future reviews of this modernized Official Languages Act.

All the same, I am still in favour of modernizing the Official Languages Act and will vote to support Bill C-13, as my colleagues in the other place have done. The bill represents a step forward for language rights in this country.

There’s no doubt that bilingualism and linguistic duality remain strong values in our country, as evidenced by the fact that nearly all members of the other place voted in favour of the bill. There’s also no doubt that the federal government needs to do more by assuming a greater role as a leader and champion of official languages.

Indeed, such leadership remains essential to the success of the Official Languages Act, no matter how it is amended. Full respect for the rights of anglophone and francophone communities and the full development of minority language communities depend on leadership from the federal government.

Thank you for your attention, honourable senators.

Hon. Senators: Agreed.

(Motion agreed to.)

(At 10:31 p.m., the Senate was continued until Tuesday, June 6, 2023, at 2 p.m.)

Appendix—Senators List

The Hon. the Speaker: Is it your pleasure, honourable senators, to adopt the motion?

The Hon. the Speaker: Honourable senators, when shall this bill be read the third time?

(On motion of Senator Martin, for Senator Batters, bill referred to the Standing Senate Committee on Legal and Constitutional Affairs.)

The Hon. the Speaker: Honourable senators, when shall this bill be read the third time?

(On motion of Senator Martin, for Senator Batters, bill referred to the Standing Senate Committee on Legal and Constitutional Affairs.)

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.

[English]

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.

[Translation]

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:

[English]

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.

[Translation]

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.

[English]

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.

[Translation]

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.

[English]

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.

The Hon. the Speaker: Is it your pleasure, honourable senators, to adopt the motion?

An Hon. Senator: On division.

(Motion agreed to and bill read second time, on division.)

The Hon. the Speaker: Do you have another question, Senator Plett?

The Hon. the Speaker: Is that a question, Senator Plett?

Hon. Denise Batters: Honourable senators, I rise today to speak on the third reading of Bill C-9, An Act to amend the Judges Act.

This is the Liberal government’s third attempt to pass this bill to update the judicial disciplinary process for federally appointed judges. The current process was implemented in 1971 — 52 years ago.

While provincial governments appoint judges at the lowest level courts, the federal government is responsible for appointing many other judges. These include judges at the Federal Court, the Federal Court of Appeal, provincial Courts of Appeal, the Supreme Court of Canada and a sizable number of lower level trial court judges, such as those at the Ontario Superior Court of Justice or, in my home province of Saskatchewan, judges of the Court of King’s Bench.

As I mentioned, Bill C-9 will apply to all judges appointed by the federal government. Provincial governments have their own judicial conduct regimes for the judges appointed under their jurisdiction.

The Trudeau government’s first attempt to update the federal judicial conduct process was in the form of Bill S-5, introduced in the Senate in May 2021. That legislation died on the Order Paper before the 2021 election and was reintroduced as Bill S-3 in December of that same year. Bill S-3 was withdrawn only a couple of weeks later, and reintroduced in the House of Commons as Bill C-9. Bill C-9, as it was introduced in the Senate, is almost identical to Bill S-3.

Bill C-9 passed unanimously in the House of Commons, as it was largely considered non-controversial. When the bill came to the Senate, I delivered a speech at second reading where I raised some questions about it that I, as the opposition critic of this bill, wanted to study at the Senate Legal Committee.

As we examined Bill C-9 at the Legal Committee, it became increasingly clear that this bill would require significant work. Where the House of Commons Justice Committee studied it for three meetings and held one clause-by-clause session, our Senate Legal Committee devoted seven full meetings to hearing from witnesses and then conducted three clause-by-clause sessions.

I’d just like to take a moment to thank all the witnesses who appeared before the Legal Committee so that we could conduct this thorough study as well as my committee colleagues for all their hard work and vigorous debate on this matter.

After 50 years without a legislative refresh, and on the third parliamentary attempt to pass a bill, it only made sense that our Senate committee should proceed deliberately and thoughtfully to ensure that we made this bill the best it could be.

The government’s consultations for the bill had gone a bit stale. Most of the consultation occurred seven years ago in 2016. Even then, the government’s public consultation was paltry. It was comprised of an online survey that garnered only 74 responses from Canadians plus a review of relevant letters received by the departmental correspondence unit. Further, many provincial governments that the Trudeau government originally consulted had changed affiliation since 2016.

One of the major purposes of this bill is to ensure public confidence in the justice system. This was a foremost concern for all Senate Legal Committee members while we deliberated this bill. The committee did good, intensive work, hearing testimony from notable stakeholders including the Canadian Bar Association, The Advocates’ Society and the Canadian Association for Legal Ethics. Several Legal Committee members proposed significant amendments based on the advice of these witnesses.

When it became clear that Bill C-9 had problems, independent senators started raising the prospect of the justice minister making his own amendments to fix it. We were later told that the government — undoubtedly aware of the committee’s concerns by that time — would not be proposing any amendments.

Our Senate Legal Committee then passed a motion asking Justice Minister Lametti to come back to testify and answer the committee’s outstanding questions. The justice minister refused, even though this would have been an opportunity to explain his government’s stance and the bill he has tried to pass in various iterations over the last few years. Without his further input, the committee then proceeded to pass six common sense amendments — some of them significant — to attempt to improve the bill.

We had a lengthy committee study on this issue, and produced thoughtful, reasoned amendments based on testimony from significant witnesses. The government should not dismiss the result of our committee’s sober second thought. I hope they will accept these amendments as further improvement to a judicial conduct system that hasn’t been significantly revised in five decades.

For honourable senators’ information and benefit, it is helpful to take a closer look at the amendments passed by the committee. Three of them were proposed by Senator Clement. Her first amendment corrected some poorly drafted language in the diversity section about the selection of judges and laypersons for filling the spots on the hearing panels in the new judicial discipline process. Bill C-9 contained a clause stating that, “As far as possible,” those individuals should reflect the diversity of Canada. Senator Clement’s amendment deleted this patronizing and imprecise language from the bill.

Another of Senator Clement’s amendments inserted the words “sexual misconduct and sexual harassment” where previously Bill C-9 referred only to “sexual harassment.” Of course, this is to encompass conduct beyond what falls into the narrower definition of sexual harassment.

Senator Clement’s third amendment added language to ensure more transparency in the judicial discipline process, particularly when complaints are rejected. It stipulates that reasons should be given to complainants in that scenario. This accountability is important to increase public confidence in the fairness of the system.

Senator Pate proposed an amendment through Senator Simons that would improve data collection on complaints brought against judges in the course of this new judicial conduct process.

In the words of Senator Pate:

The importance of disaggregated data is crucial for understanding what is and is not working within the criminal legal system. At the moment, we have very little data on whom the complainants are that are filing complaints and then most dissatisfied with the judiciary, outside of anecdotal evidence.

By giving this option, we are better able to understand who are the most displeased, who have the means to bring judicial complaints and who are disproportionately being impacted so that we can create better training for judges, lawyers and create a fair legal system.

And I also proposed three amendments to Bill C-9. Two of my amendments were passed at committee, with the third narrowly defeated by a single vote. The first of my amendments to pass incorporated “laypersons” — Canadians who are not lawyers or judges — into nearly every stage of the judicial conduct process. This dovetails with the legislative objective of increasing public confidence in the justice system and improving public accountability.

Our committee heard substantial evidence supporting this idea. Professor Richard Devlin of the Canadian Association for Legal Ethics agreed with the need for increased representation of laypersons, stating that the values of impartiality, independence and representation are compromised without sufficient lay representation.

He also raised the concern that the proposed section 115 of the act suggests that reduced hearing panels might not be public. Professor Devlin said a judge could potentially choose to avoid any lay engagement at that stage of the process and have it in private.

The Ontario Judicial Council Registrar, Alison Warner, told us about the advantage of having layperson involvement in their provincial judicial conduct system. She said laypersons offer “quite an invaluable perspective in the deliberation process.”

The representative from the Canadian Judicial Council did not agree, saying that she didn’t think:

. . . it’s necessary at every stage because you don’t see it anywhere else within an administrative tribunal, not at the screening stages, and not at others.

Responding to that, I pointed out that the federal process has more in common with similar systems at the provincial level, including the Ontario Judicial Council, than it does with different administrative tribunals. Given the degree to which judges hear very important cases dealing with the public and the ramifications of those cases, it’s important that Canadians feel like they are represented in and can trust these processes. Those are important reasons to involve lay people at every stage.

Some may question whether laypersons have the requisite legal training to sit on a quasi-appeal board. First, the lay people the council would have on their roster would be appropriate people and receive the necessary training to do the job they are required to do.

Second, contrary to the belief of some — and, colleagues, I say this as a lawyer — lawyers don’t actually know everything, and laypersons can a bring a valuable common-sense perspective to disciplinary matters.

And, third, if you are uncomfortable with a layperson dealing with matters involving the law, I would suggest that our Senate Legal and Constitutional Affairs Committee would be very different if only lawyers and judges were allowed to be members of that committee.

People who are not lawyers or judges bring a different lens to legal matters, and where issues of judicial discipline can so impact public confidence in that system, it is important that laypersons be involved in the process.

Senator Clement cited an example at committee from her own experience. She said:

When I appear in front of the Workplace Safety and Insurance Appeals Tribunal — I’m using an administrative law example — when they have three-person panels, the chair is a lawyer, and the employer community is represented, and the employee or union perspective is represented. In my experience, they are triers of fact, but they also render decisions that deal with the law. It’s considered quite a good tribunal in Ontario, quite an expert tribunal. It has an excellent reputation. . . .

The lay people on those panels have training, they have encadrement, as we say in French, and they have support. I would say the quality of those decisions is good.

Furthermore, after my later amendment passed at the Legal and Constituional Affairs Committee, Bill C-9 now contains the ability to appeal to the Federal Court of Appeal. This court could therefore handle judging the finer points of law if required. Ultimately, my amendment to include laypersons at every stage of the judicial disciplinary system passed soundly at committee, with eight members voting in favour, four against and one abstaining.

Several expert witnesses at the Legal and Constituional Affairs Committee called for the inclusion of the Federal Court of Appeal. These included the Canadian Bar Association, The Advocates’ Society and political science professor Caroline Dick. The Canadian Superior Courts Judges Association — 1,200 members strong, as Senator Dalphond stated today — also sent the members of our committee a letter, indicating that, by the end of the government’s consultation period, they were not in consensus with the position of the Canadian Judicial Council on the issue of external review. This judges association stated that they were:

. . . in favour of a judge’s ability, as of right, to seek a remedy at court at the issue of the conduct review process.

Notably, among the witnesses supporting inclusion of the Federal Court of Appeal was the Canadian Bar Association, CBA, which represents 37,000 lawyers and is Canada’s biggest legal association. During the 10 years I have been a member of the Senate Legal and Constitutional Affairs Committee, I can’t recall another time that we have had the president of the CBA testify before us. The CBA sometimes suggests amendments, but it’s uncommon for them to suggest major amends to government bills. But when CBA President Steeves Bujold appeared before us on Bill C-9, he provided two important reasons for including the Federal Court of Appeal as an option to appeal to an actual court before the Supreme Court of Canada:

First, as a matter of natural justice, it ensures that there is external oversight to the process. Second, the judiciary is so important to Canada’s democracy that the public must see that judicial discipline is carried out in an open and accountable manner with clear avenues of appeal and redress. Another benefit of a right of appeal is that the Federal Court of Appeal is likely to give detailed reasons so the judge accused of misconduct and the public will then know why an independent court concluded the way it did. This enhances the Canadian Judicial Council’s credibility by the transparent review of its process and decision making.

Mr. Bujold also said:

To conclude, the judicial branch is a pillar of our democracy and must be accountable to and accepted by the public. By creating a clear, open process for judicial discipline where the Canadian Judicial Council’s actions can be meaningfully appealed to an appeal court and by having review proceedings conducted in open court, the public retains confidence in the judicial discipline system’s integrity. Justice will be seen to have been rendered.

Even now, with the addition of the Federal Court of Appeal, the amended Bill C-9 would still be a major streamlining of the process. The current process can involve appeal of a panel decision to the Federal Court, then the Federal Court of Appeal and then to the Supreme Court of Canada, with leave, or permission. The bill as amended would still eliminate a full level of court, thereby saving both time and money, but it would retain the principles of fairness, transparency and accountability.

It is important to note that with this bill the Trudeau government made a conscious choice to extend the ability to appeal to the Supreme Court of Canada by leave rather than by right. As it is, the Supreme Court of Canada only grants appeals in 7% or 8% of the applications for leave it considers. Further, the Supreme Court must deem a matter to pass what it considers the national interest test. There is certainly no reason to be optimistic that an issue of judicial discipline would meet that criterion.

Even senior Department of Justice official Patrick Xavier admitted four times during his testimony that they do not know whether the Supreme Court of Canada would grant permission for this type of judicial disciplinary conduct appeal. As Mr. Xavier stated, “We don’t know yet what the court will do. It’s an open question.”

Where a judge facing investigation for misconduct is a Supreme Court of Canada justice, there is an extra layer of complexity. As CBA President Steeves Bujold testified:

The fact remains that if the complainant, if the judge under investigation is a Supreme Court justice, it’s a complex question of law. Can the rest of the court sit in judgment of an appeal by a colleague, and can enough judges who do not already have knowledge of the facts be assembled to have a quorum? It’s a pretty complex question, one that would perhaps be less of an issue in the Federal Court of Appeal, since there are enough judges to assemble a three-judge panel.

The Advocates’ Society also proposed adding the Federal Court of Appeal back into the judicial conduct process. Sheree Conlon, Executive Member of The Advocates’ Society, testified:

The Advocates’ Society is concerned that Bill C-9 creates a legislative scheme in which the Canadian Judicial Council is the investigator, the decision maker and the appellate authority with respect to allegations of judicial misconduct. In the end, external judicial oversight of the CJC’s decisions and actions is all but eliminated.

The proposed process is concerning because court oversight of administrative actions is fundamental to ensure their legality and fairness. The lack of court oversight of the CJC’s process undermines the security of tenure of the judiciary, which is a critical component of judicial independence. . . .

We must stress that we believe our proposed amendment will not reintroduce delays and costs we see in the current process, which the government is rightly trying to fix. The proposal ensures that only the CJC’s final decision will be subject to appeal directly to the Federal Court of Appeal. This will eliminate one layer of judicial review — the Federal Court . . . .

Ms. Conlon went on to say:

We believe this small change that we propose to Bill C-9 strikes the right balance between efficiency, public confidence in judicial accountability and fairness to all parties, all while maintaining judicial independence.

With these key considerations and significant testimony about this issue, I am pleased our Senate Legal Committee passed my amendment to reinstate the Federal Court of Appeal as a final level of appeal before seeking leave from the Supreme Court of Canada.

Reintroducing the Federal Court of Appeal into the disciplinary process could have another advantage. Having a court rather than a panel as the penultimate appeal level offers significant precedential value as well. Having an actual court — not just a panel, but an actual court — is an advantage for determining intricate matters of law that may arise from these matters.

In any case, my amendment to reinstate the Federal Court of Appeal into the process as an avenue of final appeal before applying for leave or permission to the Supreme Court passed at the Legal Committee by a vote of seven members in favour and six members against.

The third amendment I proposed to Bill C-9 was to add suspension with pay and suspension without pay to the list of potential sanctions available in the judicial disciplinary process. Unfortunately, this very reasonable amendment was defeated at the Legal Committee, but only by one single vote: five members in favour and six members against.

I will introduce a slightly reworked version of that amendment at the conclusion of my speech.

First, I think it would be helpful for senators to understand some of the testimony our committee heard regarding why these sanctions should be available in the judicial conduct process.

Under the provisions of Bill C-9, the review panel can recommend the very serious sanction of removing a judge, or choose from a list of lesser remedies, including issuing a private or public warning, reprimand or expression of concern; ordering a judge to give a private or public apology; and ordering other disciplinary measures, such as counselling or education.

There is a significant gap between some of these lesser consequences and the removal of a judge from the bench. Allowing the suspension of a judge, with or without pay, as a possible remedy would provide a reasonable option for addressing misconduct that is serious in nature but does not meet the high threshold for removal. Furthermore, if the only available penalty for serious misconduct is removal from the bench, a judge may be inclined to keep fighting against the sanction at taxpayers’ expense. Providing an intermediate-level sanction could be more appropriate for all: the accused judge, the complainant and the public at large.

When Justice Minister Lametti appeared before our Legal Committee, I asked him why the option for a suspension, with or without pay, was not included in Bill C-9. It seemed that he was not prepared to answer the question, which I found surprising, given that I had raised this issue in my second-reading speech a couple of weeks earlier. Without commenting on that, Minister Lametti passed the question to his departmental official to answer.

His official, Patrick Xavier, answered my question by saying:

The bar for judicial conduct is very high. The Supreme Court has made that very clear; judges really are expected to be a cut above in terms of how they conduct themselves, both inside and outside of the courtroom. If you are talking about something so serious that a docking of pay is warranted, you are probably into the realm of removal.

Minister Lametti sat at the table beside Mr. Xavier and did not contradict his answer, so I can only assume that he concurred with this reasoning. Although Mr. Xavier is very knowledgeable about the bill and the Judges Act, his answer didn’t seem particularly convincing to me.

Therefore, in the committee meetings that followed, I continued to ask other witnesses for their stance on whether suspensions, with or without pay, should be included as possible remedies. Most agreed that they could — and should — be included.

I noted that suspension was available as a sanction at the provincial level. I asked our Library of Parliament analysts for some research as to what the provinces across Canada do with provincially appointed judges. And when we’re looking at federally appointed judges, remember that also includes the Court of King’s Bench, which is the lower level of federal judicial appointments.

As it turns out, all provinces offer suspension of some sort as an option. British Columbia allows suspension of the judge or justice, with or without salary, for a further period of not longer than six months. Alberta allows the respondent to be suspended with pay for any period, or suspended without pay for a period of up to 90 days. Saskatchewan allows suspension of the judge, with or without salary, for a specified period, or until specified requirements are met, including the requirement that the judge obtain medical treatment or counselling. Manitoba allows suspension of the judge with pay for any period, or without pay for a period of up to 30 days. Ontario allows suspension of the judge with pay for any period, or without pay but with benefits for a period of up to 30 days. Quebec allows a condition if there’s a recommendation provided.

[Translation]

In Quebec, the council suspends the judge for a period of 30 days.

[English]

New Brunswick allows suspension of the judge — whose conduct is in question from the performance of the judge’s duties — without pay for a period of up to 90 days, or suspension of the judge — whose conduct is in question from the performance of the judge’s duties — with pay, and with or without conditions, for a period of time that it considers appropriate. Nova Scotia can require the judge to take a leave of absence with pay. Prince Edward Island allows an order recommending that the Lieutenant Governor in Council order a suspension of the appointment of the respondent for a specified period of time, or until the occurrence of a specified future event. Newfoundland allows suspension of the judge for a period that it considers appropriate until conditions which it may impose or fulfill, or until further order of the adjudication tribunal.

Our committee heard the testimony of Alison Warner, Registrar of the Ontario Judicial Council. As I mentioned, Ontario’s judicial conduct regime has a 30-day limit on suspensions without pay. Ms. Warner indicated that she was aware of two hearing panel cases in 2017 where provincial judges had been suspended for 30 days. She told us:

What the hearing panels in both cases were grappling with was serious misconduct, but on the other hand, the judges in both cases had exhibited remorse, insight, acknowledgement. They had filed many letters of support, not only from judges but from lawyers and members of the public. They had gone through some remedial training and ethical training.

She also stated that the panel:

. . . felt that in light of, as I say, these mitigating factors, a recommendation for removal would be unwarranted, and they combined the suspension without pay with a couple of the lesser sanctions, for example, a reprimand and apologies in one case. They felt that that would serve as a sharp rebuke for the conduct, but it would, as I say, take into consideration these mitigating circumstances.

During the first day of clause-by-clause consideration at the Legal Committee, we passed a few major amendments to the bill — one of which was my laypersons amendment. On the second day, I brought forward my amendment to include suspension with pay and suspension without pay for up to 30 days in the list of available sanctions.

Suddenly, we heard very different arguments from Department of Justice officials, opposing the idea that they had offered me during the minister’s appearance. At that eleventh hour, this is the reason that officials then gave: Before making any change to judicial pay or benefits — for example, suspension without pay — the measure would have to be reviewed by the Judicial Compensation and Benefits Commission. The officials estimated that the process would take about a year to complete.

Prior to this, the committee had not heard any testimony about this judicial compensation process requirement. No witness in the seven previous days of testimony had raised it as a potential impediment to including suspension as a remedy — not the justice minister, not the president of the Canadian Bar Association and not even those very same Department of Justice officials. Most importantly, we did not hear this from the Commissioner for Federal Judicial Affairs or the Canadian Judicial Council.

Senator Dalphond, the sponsor of the bill in the Senate, complained of the supposedly devastating impact that my amendment would have on the financial independence of judges, even though my amendment did cap the suspension without pay at 30 days. He said, “Why not 90 days? Why not a year? How does the judge manage to live?”

Given that the federal Job Bank estimate states that the median annual wage for a Canadian judge is $355,536.60, I’m assuming it’s probably doable.

Colleagues, I had proposed a 30-day cap for suspension without pay as a reasonable compromise, given the wide variance in limits in provincial judicial conduct regimes. It is long enough to matter, but short enough that it does not seriously threaten a judge’s livelihood or impinge upon their constitutional right to financial and judicial independence.

The Commissioner for Federal Judicial Affairs Marc Giroux suggested to our committee that existing jurisprudence on the judicial independence of judges could impact any amendment on suspension, but I reminded him that we had not heard such an argument from either Minister Lametti’s departmental officials or the Ontario Judicial Council. As such, I said that I assumed it did not exist.

Furthermore, Department of Justice officials confirmed that, to their knowledge, there were no cases in Canada of judges litigating against the penalty of judicial suspension without pay.

Let’s think about that for a second: Some provincial judicial disciplinary regimes using this sanction have been in place for decades; Ontario’s 30-year-old system is one such example. Given their legal expertise, judges are, perhaps, the most likely people to pursue litigation, and yet no judges have litigated this issue over decades. We could reasonably expect that those judges facing suspension without pay would litigate such a point if they thought they had a decent shot of winning on that issue. This tells me that this argument does not really hold water.

In fact, Mr. Xavier confirmed that a judge’s right to financial independence does not preclude the sanction of suspension without pay. He stated:

To be perfectly clear, the financial security component of judicial independence does not necessarily prohibit suspension without pay. What it prohibits is the enactment of any change to judicial compensation and benefits that has not first gone through a judicial compensation process.

As for the question of suspension with pay, Mr. Xavier said, “A suspension with pay could be enacted if this committee decides that is a good thing to do . . .”

We heard testimony from other witnesses that federally appointed judges already effectively receive suspension with pay as a sanction in some cases, and I then noted it’s just not a transparent process. Commissioner of Federal Judicial Affairs Marc A. Giroux said:

On a practical level, suspension with remuneration already occurs in that a Chief Justice who has a judge who is the subject of a complaint that is deemed to be serious can take steps to not assign that judge to hear matters until the complaint is resolved by the council or upon receiving more information about the complaint.

Obviously, this is not done at the council level now. Certainly, there is discretion for the Chief Justice to do that and we can advise that it is done. In the case of serious matters, it is done regularly.

Jacqueline Corado from the Canadian Judicial Council also confirmed that this was the case. Under the current process, the public would never know that a judge was suspended or why. They might just think that a judge is on holidays, sick leave or absent for some other reason. The public would never be aware that a judge is facing a disciplinary proceeding or a potential misconduct allegation that has led a Chief Justice to apply that sort of a sanction on them. Depending upon the circumstances, this could undermine the public’s trust in the system, given that justice not seen is justice denied. It is unfair that, effectively, suspension can be applied as a consequence if done behind closed doors but not if it is open and transparent.

Transparency and accountability of the judiciary should be paramount to ensure that Canadians can have confidence in the justice system. At the same time, we have to balance the constitutional obligation to protect the impartiality and independence of the judiciary. If we proceed carefully, it is possible to do both at the same time. By including the sanctions of suspension with and without pay for judicial misconduct, we enhance the efficiency of the revamped judicial discipline system in Bill C-9. It ensures judges guilty of serious misconduct receive an appropriate penalty. It precludes judges from dragging out litigation for years and years and costing taxpayers hundreds of thousands of dollars as they attempt to avoid a permanent removal procedure.

That is why I am once again moving an amendment to Bill C-9 today that will add the sanction of suspension with and without pay for a limit of 30 days to the list of possible consequences that can apply for judicial misconduct. While it is very similar to the amendment on suspension that I proposed at committee, this third reading version will have one significant addition: To address concerns about the impact on judicial compensation, my amendment delays the coming into force provision for suspension without pay by one year. This will give sufficient time to address any requirement that the measure first be reviewed by the Judicial Compensation and Benefits Commission. Given the testimony we heard at committee, this should be more than enough time to assess the impact of the change. Let us not forget that appeal courts routinely give the government a limit of one year to change an entire complex law. Therefore, I ask for your support for this common-sense amendment.

Hon. Donald Neil Plett (Leader of the Opposition): I’m wondering whether the senator would take a question.

Senator Dalphond: I was expecting I would have a question from you and one from Senator Batters.

The Hon. the Speaker: So you were on debate.

Senator Dalphond: Maybe I could make another comment. It’s not a question, but he engaged —