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Senate changes to judicial oversight bill contrary to bill's goal: Lametti's office

OTTAWA — Justice Minister David Lametti's office says some Senate amendments to a judicial oversight bill would do the opposite of what the bill is trying to accomplish.
Justice Minister David Lametti speaks to reporters after a meeting of the Liberal caucus in Ottawa, Wednesday, May 31, 2023. Lametti says changes made in the Senate to legislation creating a new process for investigating complaints against federal judges are contrary to strengthening the oversight of judicial misconduct in Canada. THE CANADIAN PRESS/Sean Kilpatrick

OTTAWA — Justice Minister David Lametti's office says some Senate amendments to a judicial oversight bill would do the opposite of what the bill is trying to accomplish. 

Bill C-9 would amend the Judges Act to create a new process for the Canadian Judicial Council to review misconduct allegations that are not serious enough to warrant a judge's removal.

Lametti's office said the proposed law is the product of extensive collaboration with judges from across the country.

"Certain amendments proposed by the Senate are contrary to the intent of the legislation, which is to strengthen the oversight and efficiency of the judicial misconduct process," Lametti's press secretary Diana Ebadi said in a statement. 

"Minister Lametti believes that the purpose of C-9 is to reform the judicial misconduct process, which is outdated and at times has proven to be inefficient and costly. He is focused on improving and bolstering confidence in the process, for both judges and the general public. His priority is passing legislation that will achieve this goal."

The House of Commons had unanimously passed the bill, which would also clarify when a judge can be removed and change the way the Canadian Judicial Council reports its recommendations to the minister.

The council has authority over federally appointed judges and it receives, reviews and deals with complaints. It works at an arm's length from the executive and legislative branches of government.

Bill C-9 would create a new panel to review complaints and determine whether a judge's removal from office could be justified.

If it is not, the complaint could be dismissed or the review panel may take action that could include a reprimand, a warning or ordering a judge to apologize, to attend counselling or to undergo further education.

If the review panel deemed the complaint serious enough to consider removing a judge from office, the complaint would go to a separate hearing panel. That group would then be responsible for making a recommendation to the justice minister.

The Senate's amendments, which are now before the House, deal with how complaints can be dismissed, who sits on the panel deciding how discipline should be dealt and how decisions can be appealed.

One change would remove a line that said individuals on hearing panels for disciplinary cases should reflect diversity "as far as possible," to state that they should just reflect the diversity of Canada. 

Another added the words "sexual misconduct" to a line of the bill that previously only said "sexual harassment" in order to capture a more-specific definition of how different types of allegations should be scrutinized.

In its original form, Bill C-9 would require the judicial council to publicly report on the number of complaints it receives and how they were resolved. 

But senators added a stipulation that reasons for the rejection of complaints should also be provided, along with more data about who complainants are.

Sen. Kim Pate, who introduced the amendment for more data collection, said doing so would allow the government 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."

Anyone can currently make a complaint, but it must be done in writing and sent to the judicial council.

Sen. Denise Batters introduced an amendment to add different types of people to the judicial complaint process.

"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," she told senators earlier this month. 

Batters also successfully amended the law so that decisions can be appealed at the Federal Court of Appeal.

Canadian Bar Association president Steeves Bujold told a Senate committee that the creation of that option would improve oversight.

"As a matter of natural justice, it ensures that there is external oversight to the process," said Bujold, adding it is important to Canada's democracy that the public sees judicial discipline carried out in an open and accountable manner with clear avenues of appeal. 

"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."

The process for complaints against judges garnered heightened attention earlier this year when the council announced it was reviewing a complaint against Supreme Court Justice Russell Brown, who remains on leave pending the review.

Bill C-9 is not the Liberal government's first attempt at reforming how judges are disciplined. Its first attempt came in form of a Senate bill introduced in May 2021, which died on the order paper before the 2021 election. 

The law was introduced that December after the Liberals were re-elected, but it was withdrawn by the government and replaced with the current iteration of the law. 

If the government rejects any of the Senate's amendments, the bill must be sent back to the upper chamber for a final stamp of approval before it can become law.

This report by The Canadian Press was first published June 7, 2023. 

David Fraser, The Canadian Press

Note to readers: This is a corrected story. A previous version incorrectly spelled the name of Steeves Bujold.