The Hon. the Speaker: Those in favour of the motion will please say, “yea.”

The Hon. the Speaker: In my opinion, the “yeas” have it.

And two honourable senators having risen:

The Hon. the Speaker: Those in favour of the motion will please say, “yea.”

The Hon. the Speaker: The bells will therefore ring for 15 minutes. The vote will be at 9:39. Call in the senators.

Motion agreed to and bill read second time on the following division:

The Hon. the Speaker: Is there an agreement on a bell?

Senator Seidman: Yes, there is. Fifteen minutes.

Hon. Renée Dupuis: Would Senator Plett take a question?

[English]

The Hon. the Speaker: Are senators ready for the question?

Hon. Senators: Question.

The Hon. the Speaker: The bells will therefore ring for 15 minutes. The vote will be at 9:39. Call in the senators.

Motion agreed to and bill read second time on the following division:

The Hon. the Speaker: Those opposed to the motion will please say, “nay.”

The Hon. the Speaker: In my opinion, the “yeas” have it.

And two honourable senators having risen:

The Hon. the Speaker: Are senators ready for the question?

The Hon. the Speaker: Honourable senators, I have the honour to inform the Senate that a message has been received from the House of Commons which reads as follows:

Wednesday, June 21, 2023

EXTRACT, —

That a message be sent to the Senate to acquaint Their Honours that, in relation to Bill C-9, An Act to amend the Judges Act, the House:

agrees with amendments 1(b)(i) and 1(c)(i) made by the Senate;

respectfully disagrees with amendments 1(g), 1(i), 1(j) and 1(k) because they undermine the mechanisms in the bill for controlling process costs and delays by introducing a second intermediate appellate level into the proposed new judicial conduct process that would duplicate the work of the first and, as a result, would introduce into the new process costs and delays comparable to those that have undermined public confidence in the current process;

respectfully disagrees with amendment 2 because it undermines the mechanisms in the bill for controlling process costs and delays by maintaining most of the unnecessary costs and delays that the bill was intended to excise from the process for obtaining court review of a Canadian Judicial Council report issued under the current process;

respectfully disagrees with amendments 1(a), 1(b)(ii), 1(f) and 1(h) because they would, taken together, have the effect of redefining the roles of lay persons, expressly defined as persons who have no legal background, in the proposed new judicial conduct process by obliging them to fulfill decision-making functions requiring legal training or that are best fulfilled by those with legal training;

respectfully disagrees with amendments 1(c)(ii) and 1(c)(iii), 1(d) and 1(e) because, taken together, they would redefine the balance struck by the bill between confidentiality and transparency considerations arising during the investigative stages of the process in a way that risks disclosing information of a personal or confidential nature, and that would require substantial new financial resources that are not otherwise necessary for the proper operation of the proposed new judicial conduct process; and

respectfully disagrees with amendments 1(b)(iii) and 1(l) because, taken together, they substantially rework the principal mechanisms contained in the bill for ensuring that the Canadian Judicial Council makes public information about the process, and these amendments do so in a way that risks disclosing information of a personal or confidential nature.

ATTEST

Eric Janse

Acting Clerk of the House of Commons

Hon. Patti LaBoucane-Benson (Legislative Deputy to the Government Representative in the Senate): Honourable senators, with leave of the Senate and notwithstanding rule 5-5(j), I move:

That, when the Senate next adjourns after the adoption of this motion, it do stand adjourned until tomorrow, Thursday, June 22, 2023, at noon.

The Hon. the Speaker: Is leave granted, honourable senators?

The Hon. the Speaker: Is leave granted, honourable senators?

The Hon. the Speaker: Honourable senators, when shall this message be taken into consideration?

Hon. Marc Gold (Government Representative in the Senate) moved:

That, in relation to Bill S-8, An Act to amend the Immigration and Refugee Protection Act, to make consequential amendments to other Acts and to amend the Immigration and Refugee Protection Regulations, the Senate agree to the amendments made by the House of Commons; and

That a message be sent to the House of Commons to acquaint that house accordingly.

Hon. Denise Batters: Honourable senators, I rise to speak to the message from the House of Commons on Bill C-9, an act that will update the process of judicial discipline of federally appointed judges. Bill C-9 would significantly change this process for the first time in more than 50 years. Under the new process, complaints against federally appointed judges would be considered only by hearing panels established by the Canadian Judicial Council rather than a series of appeals to the Federal Court and Federal Court of Appeal. Ultimately, a judge undergoing this process could, as a last resort, apply for leave to appeal to the Supreme Court of Canada.

Recently, Chief Justice Richard Wagner of the Supreme Court of Canada stated his desire that Bill C-9 would pass quickly given that the bill has been before Parliament in several iterations. But the delay on this reform of the judicial disciplinary system rests with the Trudeau government. The first bill, Bill S-5, died on the Order Paper when the Liberal government called an unnecessary election. The Liberal government then introduced the bill again in the Senate as Bill S-3 — incorrectly, as it involved the expenditure of money. So it was then withdrawn and reintroduced as Bill C-9.

In any case, the Senate Legal Committee studied Bill C-9 for more than double the amount of time that the Justice Committee in the House of Commons did. The Senate Legal Committee senators passed six reasoned, well-formulated amendments based on the evidence we heard from expert witnesses at our committee. The Senate Chamber then passed the bill containing our committee amendments to the House of Commons. Casting aside both the Senate’s common sense and the overwhelming committee evidence supporting the amendments, Minister Lametti accepted only two minor amendments from the Senate and rejected all the rest.

It feels a bit like déjà vu, honourable senators. Once again, our Senate has invested considerable effort in studying important issues, and once again, the Trudeau government has effectively told the Senate to pipe down and fall in line. Do they want sober second thought or not? The Trudeau government is treating the Senate as a glorified rubber stamp. In fact, the Trudeau government’s whole dismissive attitude toward the Senate has been on display throughout this bill’s progression through Parliament.

As the critic of Bill C-9, I was surprised to learn through a media report that the Minister of Justice intended to reject some of the Senate’s amendments on this bill. The comments in this media story weren’t even from the minister himself, but from his press secretary. Of course, this was long before Minister Lametti tabled his response to the Senate amendments with the House of Commons. His press secretary gave no specific indication as to which amendments would be rejected or why.

Honourable senators, this is not how messages are supposed to be transmitted between the chambers. But it is in keeping with how Minister Lametti has dealt with the Senate on this bill.

During our Senate Legal Committee hearings on Bill C-9, Senator Dalphond seemed to indicate that government amendments would be coming on this bill, but then he walked it back at the next meeting. An Independent Senators Group member on the committee moved a motion calling for Minister Lametti to appear at our committee a second time to explain problems with the bill that had become evident after weeks of study, and the Legal Committee passed that motion. But Minister Lametti refused. That is virtually unheard of in the last 10 years I’ve been on the Senate Legal Committee.

So, we went to clause by clause, and some major amendments passed, which were fully supported by substantial witnesses and committee testimony. Since the judicial disciplinary provisions of the Judges Act haven’t been amended in 50 years, we wanted to make sure we did it right. Therefore, as senators, we exercised our sober second thought. That’s the Senate of Canada. That’s Parliament.

During the debate on the Senate’s message, Minister Lametti said he was “. . . disappointed to see the results of their second thoughts.” It’s unfortunate that the Minister didn’t exercise a little “sober second thought” of his own before he said later that night in the House of Commons:

. . . I have a healthy relationship with the Senate. I sometimes joke that I am there more often than some of its own members, but I will not say that in the other place.

Honourable senators, this Trudeau government’s disdain for the Senate is no laughing matter.

Even the manner in which Justice Minister Lametti referred to the Senate amendments was dismissive. Normally, the minister acknowledges that the amendments he accepts from the Senate are good and important. But his comments on those amendments in the House of Commons last week were lukewarm. Minister Lametti’s remarks weren’t exactly a ringing endorsement, even though those two amendments made his bill better.

I thought the minister was joking again when he stated this during his speech:

Bill C-9, as adopted unanimously in the chamber, is a balanced, carefully considered and meticulously crafted bill that was born of extensive consultations with judicial and legal stakeholders, as well as members of the general public.

“Meticulously crafted”? First, the two amendments Minister Lametti did accept were, in fact, correcting drafting errors that the government should have corrected itself with its own amendments, but refused. Those two Senate amendments could have been avoided altogether if the Trudeau government had done its job properly.

And about the government’s “extensive consultations” on this bill, the public consultation on this issue was done in 2016 — seven years ago — and consisted of an online survey with only 74 responses and reviewing some letters written to the justice minister on the issue. That’s hardly extensive. Most of the provincial governments the Trudeau government consulted with on this issue in 2016 have since been replaced by governments of a different affiliation.

We heard over the course of our study about a number of groups who were not directly consulted by the government on this process, including the Canadian Muslim Lawyers Association, The Advocates’ Society, the Roundtable of Diversity Associations and the Canadian Association for Legal Ethics. No doubt there are others.

Senate Legal Committee heard from many of these expert witnesses during our study of Bill C-9. They provided us with much valuable information and even proposed amendments to improve the bill. I proposed two significant amendments, which were passed by the Legal Committee and then subsequently passed by the Senate Chamber. One was to include laypersons in every stage of the disciplinary process, and the other was to reinstate the Federal Court of Appeal in this process before a judge can apply for leave to the Supreme Court of Canada, where this permission is granted very rarely — only in about 7% or 8% of cases. Both amendments were rejected by the Trudeau government.

Minister Lametti stated that he rejected some of the Senate’s amendments because they:

. . . run counter to the bill’s central objective of restoring public confidence in the judicial conduct process. As a result, these amendments, quite simply, would defeat the purpose of this bill. Bill C-9 is critical to ensuring nothing less than continued public confidence in the independence of our judiciary and, by extension, in our system of justice.

But the minister is entirely wrong on this point. The two amendments I passed will actually increase the confidence of the public in the judiciary and the justice system as a whole. Take, for example, my amendment to increase the participation of laypersons at every stage of the new judicial conduct process. Minister Lametti himself admitted at Senate Legal Committee that feedback from public consultations revealed strong support for greater public participation by laypersons. Having public representation at every stage of the process brings a different lens to the judicial misconduct process and its public impact. It would strengthen public oversight and bolster confidence in the justice system.

Contrary to the belief of some, lawyers don’t actually know everything, and, colleagues, I say that as a lawyer. But Minister Lametti’s and the Trudeau government’s dismissal of my laypersons amendment smacks of elitism and an out-of-touch government. In his response to the Senate message, Minister Lametti defined laypersons as “people who do not have the training required to address matters of law.”

He said:

. . . the Senate proposed to add laypersons where they should not bring their perspectives. This would undermine the effectiveness and fairness of the new process in the bill . . . .

The message is clear: This Trudeau government and this justice minister think that only lawyers’ opinions count. The fact is that laypersons bring a valuable and unique perspective. There are enough legal professionals on each of the panels in this process to be able to sift through finer points of law. The addition of a layperson to each will not upset that balance, as the minister puts it. It will only enhance the public’s confidence in the system to have laypersons present at every stage of the process. And the public must have confidence, since judges judge the public.

Many professional organizations involve laypersons in their disciplinary processes. The Ontario Judicial Council testified before our committee that they have lay people on all levels of their disciplinary panels. The Law Society of Saskatchewan has lay people on their disciplinary panels for lawyers. At committee, Senator Clement recounted an example from her past work with the Workplace Safety and Insurance Appeals Tribunal, which includes the participation of laypersons.

Several Senate Legal Committee witnesses testified about the need for this inclusion, among them professor Richard Devlin of the Canadian Association for Legal Ethics, who has published two books on judicial discipline. He said that “insufficient lay representation in the process” compromises “the principles of impartiality, independence and representation.”

Including laypersons at every stage of the judicial conduct process will bolster public confidence in the legal system, not diminish it. My amendment won handily at the Legal Committee by a vote of 8 to 4, with one abstention and with the support of a clear majority of groups in the Senate.

My second amendment — inserting the Federal Court of Appeal at the end of the judicial misconduct process, before applying for leave to appeal to the Supreme Court of Canada — would provide another major avenue through which points of law could be considered. For this reason, these two amendments pair very well together, and my amendment to include the Federal Court of Appeal would further augment public confidence in the judicial misconduct process. It is a mistake for Minister Lametti to equate disciplinary panels with an actual court. Including a court in the disciplinary system can provide precedential value of decisions — which is something that hearings do not.

Again, that would strengthen oversight of the process and provide public confidence in the system, while addressing the need for fairness for a judge facing dire consequences to appeal.

This amendment was suggested by The Advocates’ Society, which represents more than 6,000 lawyers, judges and advocates. It was supported by the largest lawyers’ association in Canada — the 37,000-member-strong Canadian Bar Association — whose president testified before our Senate Legal Committee, which is something that we rarely see. The Canadian Superior Court Judges Association — a body of 1,200-plus judges — also indicated its support for this. These associations and organizations recognize that including the Federal Court of Appeal would bolster confidence in the process, both for the public and for judges. The minister can’t summarily dismiss that kind of legal gravitas.

The Federal Court of Appeal would also provide valuable external judicial oversight. As Sheree Conlon, from The Advocates’ Society, told our Legal Committee:

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.

The inclusion of the Federal Court of Appeal would restore external judicial oversight to the process, and preserve judicial independence.

Minister Lametti has tried to claim that including the Federal Court of Appeal would undermine the efficiency of the judicial conduct system that Bill C-9 aims to streamline. But even if the Federal Court of Appeal is inserted at the end of the process, the first-level Federal Court stage that is currently in place would still be eliminated. That would significantly cut down on costs and delays. The government has already addressed the issue of judges continuing to accrue money toward their pensions while dragging out this process; that loophole was closed under previous legislation.

Thus, all of the government’s arguments for rejecting these amendments just don’t add up. My amendments will increase public confidence in the judicial misconduct process and the justice system; provide external oversight while assuring fairness to judges; and still allow for considerable streamlining of the current process by eliminating an entire level of court from the process.

Honourable senators, the Senate has brought — and must continue to bring — sober second thought on Bill C-9. How many more times will this Trudeau government reject our Senate amendments? Time after time, we conduct intensive studies and pre-studies at committee, calling upon expert witnesses who have taken the time to prepare important testimony on government bills. We prepare thoughtful amendments, supported by a majority of senators across groups. And all that hard work is for naught when the government rejects the important amendments that we passed.

Enough is enough.

Although I am proudly Conservative, as you know, I did not propose these amendments with partisan motivations. Our job, as senators, is to make legislation better. Since this judicial disciplinary process hasn’t been updated in more than 50 years, we — as senators — have an obligation to make it the best it can be. That is why I proposed my amendments: to have laypersons participate at every level of the judicial disciplinary process, and to include the Federal Court of Appeal in the system. These amendments, backed by expert witnesses and considerable testimony, will improve public confidence in Canada’s judicial and legal systems.

I hope you will join me in insisting upon my crucial amendments. This is the Senate’s opportunity to stand firm and make this legislation better for Canadians.