Will Bill C-9 restore public confidence in the judiciary? | Agnès Whitfield

By Agnès Whitfield

Law360 Canada (April 6, 2023, 1:20 PM EDT) --
Agnès Whitfield
Agnès Whitfield
Bill C-9, An Act to amend the Judges Act, is now before the Senate’s Legal and Constitutional Affairs Committee. The Bill proposes changes to the Canadian Judicial Council’s process for addressing complaints about judges’ conduct. Its purpose is to improve accountability and ensure greater public confidence in the justice system.

The legislation is timely — according to the latest Angus Reid survey a majority of Canadians no longer trust the courts — but will it do the job? In my opinion, the proposed changes are small steps forward, but they do little to tackle the main problem: the CJC’s absolute control over the complaints process.

A judicial culture of impunity

The CJC’s dismissive approach to complaints is a key contributor to Canadians’ declining confidence in their courts. An overwhelming proportion of complaints are rejected by the CJC without investigation. For the period from April 2019 to March 2020, 605 (93 per cent) of the 648 complaints received by the CJC were refused on receipt or early screening. Only 22 (3 per cent) complaints were referred to a member of the Judicial Conduct Committee. With rare exceptions, even when the CJC acknowledges misconduct, the consequences are minimal. Judges have merely to express some form of contrition. There is no follow-up. Repeat complaints for similar conduct are not compiled. As a result, to name just a few major contexts of loss of public confidence in the judiciary, judges can continue with impunity to make inappropriate comments on sexual violence, exhibit discriminatory conduct with litigants or witnesses, undermine French-language rights, treat self-representing litigants disrespectfully or mix socially with powerful litigants in cases before the court, all conduct which can gravely impugn their decisions and the credibility of the justice system.

Complaint review process under revised Bill C-9

Bill C-9 does little to redress this culture of impunity. While a previous version called for a three-person panel to determine the need for investigation, the latest version confirms the status quo. One screening agent appointed by the CJC can dismiss complaints at intake. No training requirement for the screening agent, in unconscious bias for example, is set. The bill requires the CJC to make public the screening criteria it uses for dismissing complaints, but no level of detail is given. The CJC could simply reference the overly broad criteria it uses now to reject most complaints.

The bill does stipulate that “[a] screening officer shall not dismiss a complaint that alleges sexual harassment or that alleges discrimination on a prohibited ground of discrimination within the meaning of the Canadian Human Rights Act” (para. 90.3). However, it is uncertain that complaints about judges’ remarks in sexual violence cases, based on myths and prejudices, would necessarily fall under “sexual harassment” or Charter-based discrimination, or that complaints by francophone litigants about judges’ inadequate linguistic skills would be considered under discrimination. The screening agent could still dismiss such complaints if sexual harassment and Charter-based discrimination are interpreted narrowly, and the complaints are not formulated explicitly in this manner.

The public would be better served by a return to the original three-person panel, one of whom should be a lay person, for the initial decision to proceed or dismiss, and decision criteria should be specified. The CJC should be required to investigate any complaint that touches directly on public confidence, interpreted not restrictively as at present, but purposively, in a manner consistent with the preservation and development of public confidence.

Role of lay persons and annual reporting

The addition of a lay person at the full-panel hearing stage (para. 117) is helpful. However, the roster from which the lay person would be chosen should not be established by the CJC, based on undisclosed CJC selection criteria (para. 82), as set out in the bill. A public selection process, independent of the CJC, would ensure that lay members in the roster are committed to the interests of the public rather than those of the CJC.

While the bill requires the CJC to report annually on the number of complaints received and reviewed at each stage (para. 160), much of this information is already given in the CJC’s annual reports. The bill could substantially improve transparency and accountability by requiring the CJC to provide statistics for each category of action taken (para. 102), as well as aggregate data on complaints in designated areas such as sexual violence, discrimination, francophone rights, and self-representing litigants, where public confidence is particularly low. The CJC should also be required to compile statistics on repeat complaints about individual judges and to publish statistics on the number of judges receiving multiple complaints, the nature of the alleged misconduct and the action taken by the CJC. None of these reporting obligations would infringe on anonymity, given the number of complaints before the CJC each year, but would provide the public with a much more accurate picture of the CJC’s commitment to improving public confidence in the judiciary.

Urgent need to restore Canadians’ confidence in the justice system

It is essential that judges treat all Canadians equitably and with respect. Many Canadians, discouraged by a process that takes time and effort while yielding little result, do not file a complaint. I firmly believe there is a kernel of truth in almost all complaints to the CJC. An enlightened approach on the part of the CJC could go a long way to providing judges with constructive criticism about possible perceptions of their courtroom conduct and lead to productive judicial training.

Complaints to the CJC do not concern judicial decisions — where judicial independence is critical and the appropriate course of complaint is the appeal process — but judicial conduct. It is unethical, in my view, for the CJC to unduly extend the argument of judicial independence to bolster a failing complaint system that leaves judges free to display conduct in infringement of the very laws they are mandated to enforce.

Parliament must send a strong signal to the CJC that with power comes responsibility. Hopefully, the Senate will send Bill C-9 back to the House for improvement. The real question is whether a complaint process administered by the CJC can be reformed or whether it is time for an alternative process, independent of the CJC. At stake is no less than Canadians’ confidence in the rule of law, a founding pillar of our democracy.

Agnès Whitfield is professor of English and French at York University. She holds a doctorate in Quebec literature from Laval University and is an ardent defender of French-language rights in Canada.

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