Response or Comment
This is a brief entered into evidence before the Canadian House of Commons’ Justice and Human Rights Committee during its consideration of Bill C-9, An Act to amend the Judges Act. Bill C-9 was introduced on First reading by the Government of Canada on December 16, 2021. The amendments in Bill C-9 concern the procedures by which the Canadian Judicial Council handles complaints of judicial misconduct. The brief argues that the Bill C-9 presents problems of transparency that undermine accountability of the judiciary in the face of concerns of misconduct. It seeks to demonstrate that Bill C-9’s effort to hide from view both the “Reasons for referral of a complaint to a [Review] Panel” and the “Report of the Review Panel” strikes at a key foundation for independence of the judiciary, namely, that the independence of the judiciary and indeed our entire approach to the rule of law depend to a significant extent on the giving of reasons by the judiciary and the publication of those reasons so that the legal profession, the public, scholars, and legislators can understand, apply, critique, and reform the law as it evolves.
The brief also draws attention to two broad conceptual and discursive moves that the Canadian Judicial Council has tried to make in various fora–and that inform while not being completely endorsed by Bill C-9. On the one hand, CJC legal counsel argue that CJC decision-making up to the stage of Panels of Inquiry (the current system) / Hearing Panels (the C-9 system) is a purely administrative regime no different from any other professional regulatory body, in such a way that reasons can be kept secret until forced to light by disclosure obligations in the rare instances of judicial review. On the other hand, before the courts, the CJC has sought to frame the administration of the judicial misconduct as a sacrosanct preserve of the CJC based on a highly overdrawn conception of the independence of the judiciary and its self-regulatory powers (so far, an unsuccessful effort before the Federal Court and Federal Court of Appeal). The brief argues these rationales are inconsistent with both the special substantive role of a constitutionally-responsible judiciary in society and with the foundations of the constitutional principle of the independence of the judiciary that include the open court principle and corollary practices of transparent, public reasoning (practices with obvious relevance also for the principle of the rule of law).
The brief ends with eight recommended amendments to the amendments to the Judges Act proposed by Bill C-9.
Scott, Craig M., "Written Submission to the House of Commons’ Justice and Human Rights Committee on Bill C-9: An Act to amend the Judges Act" (2022). Commissioned Reports, Studies and Public Policy Documents. Paper 221.