Bill S-5

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SUMMARY
Judges Act
Transitional Provisions
Coordinating Amendment
Coming into Force
EXPLANATORY NOTES

Second Session, Forty-third Parliament,

69-70 Elizabeth II, 2020-2021

SENATE OF CANADA

BILL S-5
An Act to amend the Judges Act

FIRST READING, May 25, 2021

THE HONOURABLE SENATOR GOLD, P.‍C.

90998

SUMMARY

This enactment amends the Judges Act to replace the process through which the conduct of federally appointed judges is reviewed by the Canadian Judicial Council. It establishes a new process for reviewing allegations of misconduct that are not serious enough to warrant a judge’s removal from office and makes changes to the process by which recommendations regarding removal from office can be made to the Minister of Justice. As with the provisions it replaces, this new process also applies to persons, other than judges, who are appointed under an Act of Parliament to hold office during good behaviour.

Available on the Senate of Canada website at the following address:

www.sencanada.ca/en

2nd Session, 43rd Parliament,

69-70 Elizabeth II, 2020-2021

SENATE OF CANADA

BILL S-5

An Act to amend the Judges Act

Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

R.‍S.‍, c. J-1

Judges Act

1 Section 2 of the Judges Act is amended by adding the following in alphabetical order:

Commissioner means the Commissioner for Federal Judicial Affairs referred to in section 73; (commissaire)

Minister means the Minister of Justice of Canada; (ministre)

2014, c. 39, s. 317

2 Subsection 2.‍1(1) of the Act is replaced by the following:

Application to prothonotaries

2.‍1 (1) Subject to subsection (2), sections 26 to 26.‍3, 34 and 39, paragraphs 40(1)‍(a) and (b), subsection 40(2), sections 41, 41.‍2 to 42, 43.‍1 to 56 and 57 and Insertion start Part IV Insertion end also apply to a prothonotary of the Federal Court.

2006, c. 11, s. 15

3 The definition Minister in section 52.‍1 of the Act is repealed.

2006, c. 11, s. 16

4 (1) Subsection 53(1) of the Act is replaced by the following:

Amounts payable out of C.‍R.‍F.

53 (1) The salaries, allowances and annuities payable under Insertion start Parts I to III Insertion end and the amounts payable under sections 46.‍1, 51 and 52.‍15 shall be paid out of the Consolidated Revenue Fund.

(2) Subsections 53(2) and (3) of the English version of the Act are replaced by the following:

Prorating

(2) For any period less than a year, the salaries and annuities payable shall be paid pro rata.

Monthly instalments

(3) The salaries and annuities payable shall be paid by monthly instalments.

5 Section 58 of the Act and the heading “Interpretation” before it are repealed.

6 Paragraph 59(1)‍(a) of the English version of the Act is replaced by the following:

(a) the Chief Justice of Canada, who shall be the Insertion start chairperson Insertion end of the Council;

7 Subsection 60(2) of the Act is amended by adding “and” at the end of paragraph (a) and by repealing paragraphs (c) and (d).

8 Paragraph 61(3)‍(c) of the Act is replaced by the following:

Start of inserted block
(c) respecting the processes and proceedings under Part IV.
End of inserted block

R.‍S.‍, c. 27 (2nd Supp.‍), ss. 5 and 6; R.‍S.‍, c. 16 (3rd Supp.‍), ss. 5 and 6; 1992, c. 1, s. 144(1) (Sch. VII, s. 37(F)); 1993, c. 34, s. 89; 2002, c. 8, ss. 106(1) and (2)‍(E) and par. 111(d)‍(E) and (e)‍(E); 2014, c. 39, ss. 326 and 327

9 Sections 62 to 71 of the Act are replaced by the following:

Employment of counsel and assistants

62 The Council may engage the services of Insertion start any Insertion end persons Insertion start that Insertion end it Insertion start considers Insertion end necessary for carrying out its objects and duties, and also the services of counsel to assist the Council in the Insertion start processes and proceedings under Part IV Insertion end .

10 Section 72 of the Act and the heading “Interpretation” before it are repealed.

11 The Act is amended by adding the following after section 78:

PART IV
Conduct Review Process

DIVISION 1
Complaints Concerning Judges

Definition

Definition of judicial office

79 In this Division, judicial office includes the office of a prothonotary of the Federal Court.

Removal from Office

Justification

80 For the purposes of this Division, the removal from office of a judge is justified only if, for any of the following reasons, the judge’s continuation in office would undermine public confidence in the impartiality, integrity or independence of the judge or of their office to such an extent that it would render the judge incapable of executing the functions of judicial office:

(a) infirmity;
(b) misconduct;
(c) failure in the due execution of judicial office;
(d) the judge is in a position that a reasonable, fair-minded and informed observer would consider to be incompatible with the due execution of judicial office.
End of inserted block

Rosters

Establishment of roster of judges

81 (1) The Council shall establish a roster of superior court judges who may be designated as members of a panel established under this Division. The judges on the roster must not be members of the Council.

Number

(2) The number of judges on the roster is set at the discretion of the Council.

Recommendation

(3) The naming of a judge to the roster must be made on the recommendation of the Canadian Superior Courts Judges Association.

Term

(4) A judge named to the roster remains on it for four years unless they cease to hold judicial office or request to be removed from the roster. When the four-year term ends, the judge may be renamed to the roster on the recommendation of the Canadian Superior Courts Judges Association.

Establishment of lay persons

82 (1) The Council shall establish a roster of lay persons who may be designated as members of a review panel or full hearing panel established under this Division.

Number

(2) The number of persons on the roster is set at the discretion of the Council.

Conditions

(3) To be named to the roster, a person must

(a) never have been admitted to the bar of any province or to the Chambre des notaires du Québec;
(b) never have worked as a paralegal in Canada; and
(c) meet the other selection criteria established by the Council.
End of inserted block

Selection criteria made public

(4) The Council shall make public the selection criteria that it has established for the purpose of paragraph (3)‍(c).

Term

(5) A person named to the roster of lay persons remains on it for four years unless they request to be removed from the roster or, in the opinion of the Council, they cease to meet the conditions set out in subsection (3). When the four-year term ends, the person may be renamed to the roster.

Official languages

83 In naming persons to the roster of judges and to the roster of lay persons, the Council shall take into account the fact that the proceedings of panels established under this Division will be in either or both official languages.

Diversity

84 As far as possible, the Council shall name persons who reflect the diversity of the Canadian population to the roster of judges and to the roster of lay persons.

Rosters available to public

85 The Council shall make the roster of judges and the roster of lay persons available to the public.

Complaints

86 (1) Complaints may be made to the Council, in the form specified by the Council, in respect of a judge of a superior court for any reason referred to in paragraphs 80(a) to (d).

Complaint by Council

(2) The Council may make a complaint only if two of its members have reasonable grounds to believe that the public’s confidence in the impartiality, integrity or independence of the judge or of the judicial office of the judge could be undermined for any reason referred to in paragraphs 80(a) to (d).

Anonymous complaints

(3) A complaint may be made anonymously, but such a complaint may be dealt with only if two members of the Council have reasonable grounds to believe that the public’s confidence in the impartiality, integrity or independence of the judge or of the judicial office of the judge could be undermined for any reason referred to in paragraphs 80(a) to (d).

Notice to complainant

87 The Council shall establish policies respecting the notifying of complainants of any decisions made under this Division.

Screening Officer

Designation

88 The Council may designate as a screening officer one or more persons, including a judge, who meets the criteria specified by the Council.

Referral to screening officer

89 The Council shall refer every complaint to a screening officer, other than a complaint made by the Council itself or an anonymous complaint.

Dismissal of complaint

90 (1) Subject to subsection (2), a screening officer may dismiss a complaint if they are of the opinion that it

(a) is frivolous, vexatious or made for an improper purpose or is an abuse of process;
(b) was not made for a reason referred to in paragraphs 80(a) to (d); or
(c) does not meet the other screening criteria specified by the Council.
End of inserted block

Screening criteria to be made public

(2) The Council shall make public the screening criteria that it has established for the purpose of paragraph (1)‍(c).

Restriction

(3) 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.

Referral to Counsel

91 If a screening officer does not dismiss a complaint, they shall refer it to the Council for the designation of a reviewing member.

Reviewing Member

Designation

92 In the case of a complaint made by the Council itself or an anonymous complaint, or on receipt of a complaint referred to it under section 91, the Council shall designate one of its members to review the complaint.

Written submissions

93 The reviewing member shall give the judge who is the subject of the complaint an opportunity to make written submissions about the complaint within the time limit established by the Council for the purpose of this section.

Dismissal of complaint

94 The reviewing member shall dismiss the complaint if they are of the opinion that it should be dismissed for any reason set out in paragraphs 90(1)‍(a) to (c) or that it is wholly without merit.

Referral to Council

95 If the reviewing member does not dismiss the complaint, they shall refer it to the Council for the establishment of a review panel.

Notice of decision

96 The reviewing member shall give notice of their decision to the judge who is the subject of the complaint and to the chief justice of the court of which the judge is a member.

Provision of information

97 After the review panel is established, the reviewing member shall provide it with every document in their possession that relates to the complaint. The reviewing member may also provide the review panel with their observations about the complaint and their recommendations about how it should be resolved.

Review Panel

Establishment

98 (1) Subject to subsection (2), on receipt of a complaint referred to it under section 95, the Council shall establish a review panel consisting of the following persons designated by the Council to review the complaint:

(a) a member of the Council;
(b) a judge named in the roster of judges; and
(c) a person named in the roster of lay persons.
End of inserted block

Direction to review new complaint

(2) If a complaint is referred to the Council under section 95 and a review panel established to review a previous complaint involving the same judge has not yet made a decision in respect of that complaint, the Council may direct the review panel to also review the new complaint.

Written submissions

99 The review panel shall give the judge who is the subject of the complaint and chief justice of the court of which the judge is a member an opportunity to provide written submissions within the time limit established by the Council for the purpose of this section.

Basis of decisions

100 The review panel shall make its decision only on the basis of the substance of the complaint, any information provided under section 97, any written submissions provided under section 99 and any other document that it considers relevant.

Referral to Council

101 The review panel shall refer the complaint to the Council for the establishment of a full hearing panel if it determines that the judge’s removal from office could be justified.

Dismissal of complaint or action

102 If the review panel does not refer the complaint to the Council under section 101, it may dismiss the complaint or take one or more of the following actions if it considers it appropriate to do so in the circumstances:

(a) issue a private or public expression of concern;
(b) issue a private or public warning;
(c) issue a private or public reprimand;
(d) order the judge to apologize, either privately or publicly, by whatever means the panel considers appropriate in the circumstances;
(e) order the judge to take specific measures, including attending counselling or a continuing education course;
(f) take any action that the panel considers to be equivalent to any of the actions referred to in paragraphs (a) to (e);
(g) with the consent of the judge, take any other action that the panel considers appropriate in the circumstances.
End of inserted block

Notice of decision and reasons

103 The review panel shall give notice of its decision and the reasons for it to

(a) the judge who is the subject of the complaint;
(b) the chief justice of the court of which that judge is a member; and
(c) the Council.
End of inserted block

Request to establish panel

104 If the review panel takes any action under section 102, the judge who is the subject of the complaint may, within 30 days after the day on which the review panel sends the judge a notice informing the judge of its decision, request that the Council establish a reduced hearing panel to review the complaint.

Provision of information

105 If a reduced hearing panel or a full hearing panel is established in respect of a complaint that was before a review panel, the review panel shall provide to the presenting counsel in respect of the hearing panel all the information that was before it and the decision and reasons it provided under section 103.

Hearing Panels

Presenting Counsel

Designation

106 (1) When it establishes a reduced hearing panel or a full hearing panel, the Council shall designate one of its members to designate a lawyer of at least 10 years’ standing at the bar of any province to act as presenting counsel in respect of the hearing panel.

Restriction

(2) The member of the Council who designates the presenting counsel shall not be designated as any of the following:

(a) a member of the reduced hearing panel or the full hearing panel;
(b) a member of any appeal panel established in respect of any decision of the reduced hearing panel or the full hearing panel.
End of inserted block

Replacement

(3) The presenting counsel may at any time be replaced by another presenting counsel designated in accordance with subsection (1).

Role

107 The role of the presenting counsel consists of preparing a statement of allegations against a judge who is the subject of a complaint before a reduced hearing panel or full hearing panel, as the case may be, and presenting evidence. The presenting counsel is also responsible for bringing an appeal and presenting arguments in an appeal.

Instructions

108 (1) The presenting council shall take instructions from the Council member who designated them.

Absence or incapacity

(2) In the event of the absence or incapacity of the Council member who designated the presenting counsel, the Council may designate another Council member to give instructions to the presenting counsel.

Standards of conduct

109 In fulfilling their responsibilities, the presenting counsel shall conduct themselves in accordance with the standards and principles that govern the conduct of Crown prosecutors, with any modifications that may be necessary.

Reduced Hearing Panel

Establishment

110 (1) Subject to subsection (2), on receipt of a request made under section 104, the Council shall establish a reduced hearing panel consisting of the following persons designated by it to review the complaint to which the request relates:

(a) a member of the Council;
(b) a judge named in the roster of judges; and
(c) a lawyer of at least 10 years’ standing at the bar of any province.
End of inserted block

Direction to review new complaint

(2) If a request is made under section 104 by a judge who has previously made a request under that section and the reduced hearing panel established in respect of the previous request has not yet made a decision in respect of the complaint to which the previous request relates, the Council may direct the reduced hearing panel to also review the new complaint.

Decision and reasons not considered

111 In considering the complaint, the reduced hearing panel shall not consider the decision of the review panel that caused the judge who is the subject of the complaint to make the request under section 104 or the reasons for that decision.

Referral of complaint to Council

112 The reduced hearing panel shall refer the complaint to the Council for the establishment of a full hearing panel if it determines that the removal from office of the judge who is the subject of the complaint could be justified.

Dismissal or actions

113 If the reduced hearing panel does not refer the complaint to the Council under section 112, it may dismiss the complaint or take one or more of the actions referred to in paragraphs 102(a) to (g) if it considers it appropriate to do so in the circumstances.

Notice of decision and reasons

114 The reduced hearing panel shall give notice of its decision and the reasons for it to

(a) the judge who is the subject of the complaint;
(b) the chief justice of the court of which that judge is a member;
(c) the Council; and
(d) the presenting counsel.
End of inserted block

Decision and reasons made public

115 The Council shall make public the reduced hearing panel’s decision and the reasons for it, as soon as feasible after receiving them, if the reduced hearing panel’s hearings were public. If they were not public, the Council shall make public as much of the decision and reasons as possible having regard to the reasons for holding the hearings, or part of them, in private.

Right of appeal

116 The judge to whom the complaint relates and the presenting counsel may, within 30 days after the day on which the reduced hearing panel sends a notice of its decision to the judge or to the presenting counsel, as the case may be, file with the Council a notice appealing the decision.

Full Hearing Panel

Establishment

117 (1) Subject to subsection (3), on receipt of a referral of a complaint made under section 101 or 112, the Council shall establish a full hearing panel consisting of the following persons to review the complaint:

(a) two members of the Council who are designated by it;
(b) a judge named in the roster of judges who is designated by it;
(c) a person named in the roster of lay persons who is designated by it; and
(d) a lawyer who is a member of the bar of a province and who is designated in accordance with subsection (2).
End of inserted block

Designation of lawyer

(2) The lawyer referred to in paragraph (1)‍(d) is to be designated by the Minister. However, if the full hearing panel is being established as the result of a request by the Minister under section 148 or the Minister does not designate a lawyer within 30 days after the day on which the Minister receives written notice from the Council that a full hearing panel is to be established, the lawyer is to be designated by the Council.

Direction to review new complaint

(3) If a complaint is referred to the Council under section 101 or 112 and a full hearing panel established to review a previous complaint involving the same judge has not yet made a decision in respect of that complaint, the Council may direct the full hearing panel to also review the new complaint.

Decision and reasons not considered

118 In considering the complaint, the full hearing panel shall not consider the decision of the review panel or reduced hearing panel, as the case may be, that led to the establishment of the full hearing panel, or the reasons for that decision.

Removal justified

119 If the full hearing panel determines, on a balance of probabilities, that the judge’s removal from office is justified, it shall make a decision to that effect.

Dismissal or action

120 If the full hearing panel determines, on a balance of probabilities, that the judge’s removal is not justified, it may dismiss the complaint or take one or more of the actions referred to in paragraphs 102(a) to (g) if the full hearing panel considers that it is appropriate to do so in the circumstances.

Notice of decision and reasons

121 The full hearing panel shall give notice of its decision and the reasons for it to

(a) the judge who is the subject of the complaint;
(b) the chief justice of the court of which that judge is a member;
(c) the Council; and
(d) the presenting counsel.
End of inserted block

Decision and reasons made public

122 The Council shall make public the full hearing panel’s decision and the reasons for it, as soon as feasible after receiving the decision, if the full hearing panel’s hearings were public. If they were not public, the Council shall make public as much of the decision and reasons as possible having regard to the reasons for holding the hearings, or part of them, in private.

Right of appeal

123 The judge who is the subject of the complaint and the presenting counsel may, within 30 days after the day on which the full hearing panel sends a notice of its decision to the judge or to the presenting counsel, as the case may be, file with the Council a notice appealing the decision.

Rights of Judge

Rights

124 The judge who is the subject of a complaint that is before a hearing panel has the right to be heard, to cross-examine witnesses and to adduce evidence, in person or by counsel.

Statement of allegation and notice

125 The judge who is the subject of a complaint that is before a hearing panel is to be provided with a copy of the statement of allegations prepared by the presenting counsel and given reasonable notice of the subject matter and the date, time and place of the hearings.

Salaries and Annuities

Time in judicial office and salary

126 (1) For the purposes of calculating an annuity under Part I, if a full hearing panel decides that the removal from office of a judge who is the subject of a complaint is justified, the day after the day on which the hearing panel sends a notice of its decision to the judge is the judge’s the last day in judicial office and the day that is to be used to determine the judge’s salary unless

(a) the decision is set aside by a decision of the Supreme Court of Canada, or by the decision of an appeal panel if the appeal panel’s decision is final;
(b) the Minister’s public response under subsection 140(1) provides that no action is to be taken to remove the judge from office; or
(c) the matter of removal of the judge from office is put to one or both Houses of Parliament and is rejected by either of them.
End of inserted block

Contributions toward annuities

(2) No reservations are to be made under section 50 from the judge’s salary in respect of the period that begins on the day after the day on which the decision is sent to the judge, unless one of paragraphs (1)‍(a) to (c) applies, in which case the judge shall contribute an amount equal to the amount that would have been reserved from the judge’s salary had subsection (1) not applied.

Salary increases

(3) For greater certainty, nothing in subsection (1) is to be construed as removing from the judge any entitlement to a salary increase that takes effect on or after the day on which the full hearing panel sends a notice of its decision to the judge.

General

Powers

127 A hearing panel has all the powers vested in a superior court of the province in which the judge who is the subject of the complaint resides, including

(a) the power to summon before it any witness and require them to give evidence on oath, orally or in writing or on solemn affirmation if they are entitled to affirm in civil matters, and to produce any documents and evidence that it considers necessary; and
(b) the power to enforce the attendance of any witness and compel them to give evidence.
End of inserted block

Rules of evidence

128 A hearing panel is not bound by any legal or technical rules of evidence and may receive and base a decision on evidence presented in its hearings that it considers credible or trustworthy in the circumstances of the case.

Hearings public

129 (1) A hearing panel’s hearings are to be public, but it may hold all or any part of its hearings in private if it considers doing so to be in the public interest.

Prohibition of publication

(2) A hearing panel may prohibit the publication of any information or documents placed before it, if it is of the opinion that such a publication is not in the public interest.

Appeals

Appeal Panel

Establishment

130 On receipt of a notice of appeal filed under section 116 or 123, the Council shall establish an appeal panel consisting of the following persons designated by it:

(a) three members of the Council; and
(b) two judges named in the roster of judges.
End of inserted block

Power

131 The appeal panel has all the powers vested in the court of appeal of the province in which the judge who is the subject of the complaint resides. It may, among other things, reverse, vary or affirm any decision of the reduced hearing panel or full hearing panel, as the case may be, and make any decision the hearing panel could have made.

Hearings public

132 (1) The appeal panel’s hearings are to be public, but it may conduct all or any part of its hearings in private if it considers doing so to be in the public interest.

Prohibition of publication

(2) The appeal panel may prohibit the publication of any information or documents placed before it if it is of the opinion that such a publication is not in the public interest.

Right to make submissions

133 The judge who is the subject of the appeal and the presenting counsel are entitled to make oral and written submissions to the appeal panel.

Nature of appeal

134 The appeal is to be heard on the basis of the record of the hearing panel whose decision was appealed and on any submissions made by the judge who is the subject of the appeal and the presenting counsel. The appeal panel may, in exceptional circumstances, admit additional evidence or testimony if, in its opinion, it is essential in the interests of justice to do so.

Notice of decision and reasons

135 The appeal panel shall give notice of its decision and the reasons for it to

(a) the judge who is the subject of the appeal;
(b) the chief justice of the court of which that judge is a member;
(c) the Council; and
(d) the presenting counsel.
End of inserted block

Decision and reasons made public

136 The Council shall make public the appeal panel’s decision and the reasons for it, as soon as feasible after receiving them, if the appeal panel’s hearings were public. If they were not public, the Council shall make public as much of the decision and reasons as possible having regard to the reasons for holding the hearings, or part of them, in private.

Supreme Court of Canada

Notice of application for leave to appeal

137 The judge who is the subject of a decision of an appeal panel and the presenting counsel may, within 30 days after the day on which the appeal panel sends a notice of its decision to the judge or to the presenting counsel, as the case may be, file a notice of application for leave to appeal to the Supreme Court of Canada.

Right of attorneys general

138 If leave to appeal is granted by the Supreme Court of Canada, the Attorney General of Canada and the attorney general of a province may intervene in the appeal.

Report to Minister

Report with recommendation

139 (1) If a full hearing panel is established in respect of a complaint, the full hearing panel shall, as soon as feasible after the earliest of the following, provide to the Minister a report setting out a recommendation, consistent with the final decision in respect of the complaint, as to whether or not the judge who is the subject of the complaint should be removed from office:

(a) the judge and the presenting counsel have both waived their rights under section 123 or 137,
(b) the time limit for exercising those rights has expired, and
(c) the Supreme Court of Canada has not granted leave to appeal or, if it has, it has made a decision in respect of the appeal panel’s decision.
End of inserted block

Decisions and reasons

(2) The report must also set out the full hearing panel’s decision and any decision of the appeal panel and the Supreme Court of Canada, as well as the reasons, if any, for those decisions.

Copy of report

(3) The full hearing panel shall as soon as feasible give a copy of the report to the judge, the presenting counsel and the Council.

Report made public

(4) The Council shall make public as much of the report as it considers appropriate taking into account the extent to which the decisions and reasons set out in the report were made public.

Absence or incapacity

(5) In the event of the absence or incapacity of all three judges of the full hearing panel, the Council shall designate one of its members to assist the other members of the full hearing panel in preparing the report or, if the others are also absent or incapacitated, to provide the report.

Minister’s response

140 (1) The Minister shall respond publicly to the report.

Information

(2) For the purpose of responding publicly, the Minister may seek information from the full hearing panel on any matter that the Minister considers necessary.

Obligation to provide information

(3) The full hearing panel shall provide the judge who is the subject of the report and the presenting counsel with any information that it provides to the Minister.

General

Ineligibility

141 (1) A member of the Council and a judge named in the roster of judges is not eligible to be designated

(a) as a reviewing member under section 92, or as a member of any panel established under this Division, in respect of any complaint involving a judge of the court of which they are a member; or
(b) more than once under this Division in respect of the same complaint or the same judge.
End of inserted block

Subsections 86(2) and (3)

(2) A member of the Council who is referred to in subsection 86(2) or (3) whose belief led to the Council making a complaint in respect of a judge or to an anonymous complaint being dealt with is not eligible to be designated, in their capacity as a member of the Council or in any other capacity, as a reviewing member under section 92 or as a member of any panel established under this Division, in respect of the complaint.

Designation

Designation from roster of judges

142 The Council may designate a judge named in the roster of judges to be a member of a panel established under section 98, 110, 117 or 130 instead of designating a member of the Council as the section in question requires.

Immunity

143 A screening officer, a reviewing member or a member of a panel established under this Division shall have the same immunity as a judge of a superior court.

Financial Provisions

Regulations

144 The Governor in Council may make regulations respecting the fees, allowances and expenses that may be paid or reimbursed under this Division.

Guidelines

145 (1) Subject to the regulations, the Commissioner shall make guidelines fixing or providing for the determination of fees, allowances and expenses to be paid or reimbursed under this Division.

Incorporation by reference

(2) The guidelines may incorporate by reference any policy, guideline or directive of the Treasury Board or any federal department regarding fees, allowances or expenses, as it is amended from time to time.

Obligation to justify differences

(3) If an amount provided for in the guidelines made under subsection (1) differs from the amount provided for in Treasury Board directives regarding fees, allowances and expenses, the Commissioner shall make the reasons for the difference available to the public unless the difference is attributable solely to compliance with the regulations.

Amounts payable out of C.‍R.‍F.

146 (1) Subject to subsection (2), the regulations made under section 144 and the guidelines made under subsection 145(1), there shall be paid out of the Consolidated Revenue Fund all amounts payable in respect of the following:

(a) the expenses incurred by members of the Council and judges named in the roster of judges in the course of carrying out their duties under this Division;
(b) the expenses incurred by and the allowances payable to panel members, other than judges, in the course of carrying out their duties under this Division;
(c) the fees and expenses of presenting counsel;
(d) the fees and expenses of lawyers representing judges who are the subject of a complaint;
(e) the fees and expenses of lawyers and experts engaged by panels under this Division; and
(f) the expenses incidental to the conduct of meetings and hearings, including the renting of rooms, the recording and transcription of proceedings, translation services and security.
End of inserted block

Restriction

(2) Fees and expenses of lawyers representing judges may be paid only in respect of proceedings under this Division and appeals to the Supreme Court of Canada relating to those proceedings. For greater certainty, no payments to lawyers representing judges may be made in respect of any judicial review of any decision made under this Division.

Independent review of financial provisions

147 (1) Within 18 months after the day on which the first report is submitted under section 160 and on every fifth anniversary of that day, the Council shall cause an independent review of the application of sections 144 to 146 to be conducted. The review is to be conducted by a person or body designated by the Commissioner in consultation with the Council.

Report

(2) The person or body conducting the review shall provide a report of their findings and recommendations to the Minister, the chairperson of the Council and the Commissioner. The report shall include a finding on whether sections 144 to 146 have been applied in a manner consistent with best practices regarding financial controls.

Report to be made public

(3) The Council shall make the report public with any redactions that the Commissioner and chairperson of the Council jointly consider necessary to protect confidential or personal information.

DIVISION 2
Requests Concerning Judges

Request

148 The Minister or the attorney general of a province may request that the Council establish a full hearing panel to determine whether the removal from office of a judge of a superior court is justified.

Establishment

149 On receipt of the request, the Council shall establish a full hearing panel in accordance with section 117 to consider the request.

Application of sections 119 to 146

150 Sections 119 to 146 apply, with any necessary modifications, in respect of the request and all proceedings arising from it.

DIVISION 3
Requests Concerning Office Holders

Removal from office

151 For the purposes of this Division, the removal from office of a person appointed under an Act of Parliament to hold office during good behaviour, other than a judge, is justified only if, for any of the following reasons, the person’s continuation in office would undermine public confidence in the integrity of the person or of their office to such an extent that it would render the person incapable of executing the functions of their office:

(a) infirmity;
(b) misconduct;
(c) failure in the due execution of their office;
(d) the person has been placed in a position that a reasonable, fair-minded and informed observer would consider to be incompatible with the due execution of their office.
End of inserted block

Request

152 The Minister may request that the Council establish a full hearing panel to determine whether the removal from office of a person referred to in section 151 is justified.

Establishment

153 On receipt of the request, the Council shall establish a full hearing panel in accordance with section 117 to consider the request.

Application of sections 119 to 125 and 127 to 146

154 Sections 119 to 125 and 127 to 146, other than paragraph 146(1)‍(d), apply, with any necessary modifications, in respect of the request and all proceedings arising from it.

Removal from office

155 (1) On receipt of a report provided under subsection 139(1) containing a recommendation that a person be removed from office, the Governor in Council, may, on the recommendation of the Minister, by order, remove the person from office if the person is a person who may be removed from office by the Governor in Council other than on address of the Senate or House of Commons or joint address of the Senate and House of Commons.

Orders and reports laid before Parliament

(2) If an order is made under subsection (1), a copy of the order and a copy of the report relating to the order must be laid before each House of Parliament within 15 days after the day on which the order is made or, if either House is not then sitting, on any of the first 15 days on which that House is sitting.

Leave of absence with salary

156 The Governor in Council may, for any period that the Governor in Council considers appropriate, grant leave of absence to any person, other than a judge, whose removal from office is recommended because of infirmity in a report provided under subsection 139(1) and, if leave of absence is granted, the person’s salary is to continue to be paid during the period of leave of absence.

DIVISION 4
General

Powers, rights and duties not affected

157 Nothing in, or done or omitted to be done under the authority of, this Part affects any power, right or duty of the Senate, the House of Commons or the Governor in Council in relation to the removal from office of a judge, a prothonotary of the Federal Court or any other person.

Decision final

158 A decision made by a member of the Council under any of Divisions 1 to 3 or by a member of a panel established under any of those Divisions is final and is not to be questioned or reviewed in any court other than provided for in this Part.

Remote appearance

159 For greater certainty, any proceedings or hearings under this Part may take place by remote appearance.

Annual report

160 The Council shall, within three months after the end of each calendar year, submit a report to the Minister setting out, in respect of the year, the number of

(a) complaints received;
(b) complaints dismissed by a screening officer;
(c) complaints dismissed by a reviewing member;
(d) complaints reviewed by review panels, hearing panels and appeal panels; and
(e) complaints in respect of which any of the actions referred to in paragraphs 102(a) to (g) were taken.
End of inserted block

Replacement of “Minister of Justice of Canada”

12 (1) The Act is amended by replacing “Minister of Justice of Canada” with “Minister” in the following provisions:

(a) subsection 26(2);
(b) paragraph 26.‍1(1)‍(b);
(c) subsection 28(1);
(d) subsection 29(1);
(e) subsection 31(1);
(f) section 31.‍1;
(g) subsection 32(1);
(h) subsection 32.‍1(1);
(i) subsection 33(1);
(j) the portion of subsection 41(3) after paragraph (b);
(k) section 48; and
(l) subsections 54(1.‍1) to (3).

Replacement of “ministre de la Justice du Canada”

(2) The French version of the Act is amended by replacing “ministre de la Justice du Canada” with “ministre” in the following provisions:

(a) the portion of subsection 51(3) after paragraph (b); and
(b) the portion of subsection 51(4) before paragraph (a).

Replacement of “Minister of Justice”

(3) The English version of the Act is amended by replacing “Minister of Justice” with “Minister” in the following provisions:

(a) subsections 26(3), (4), (6) and (7); and
(b) the portion of subsection 51(3) after paragraph (b) and the portion of subsection 51(4) before paragraph (a).

Transitional Provisions

Ongoing inquiries and investigations

13 The Judges Act, as it read immediately before the day on which this Act comes into force, continues to apply in respect of any inquiry or investigation commenced under that Act before that day.

Inquiry requested under subsection 63(1)

14 (1) If an inquiry has been requested under subsection 63(1) of the Judges Act before the day on which this Act comes into force and the inquiry has not commenced before that day, the request is deemed to be a request made on that day under section 148 of that Act, as enacted by section 11 of this Act.

Complaint or allegation referred to in subsection 63(2)

(2) If a complaint or allegation referred to in subsection 63(2) of the Judges Act is made before the day on which this Act comes into force and an investigation into it has not commenced before that day, the complaint or allegation is deemed to be a complaint made on that day under subsection 86(1) of that Act, as enacted by section 11 of this Act.

Inquiry requested under subsection 69(1)

(3) If an inquiry has been requested under subsection 69(1) of the Judges Act before the day on which this Act comes into force and the inquiry has not commenced before that day, the request is deemed to be a request made on that day under section 152 of that Act, as enacted by section 11 of this Act.

Notice of application for leave to appeal

15 If a report made under section 65 of the Judges Act, as that section read immediately before the day on which this Act comes into force, contains a recommendation that a judge be removed from office, that judge may, within 30 days after that day, file a notice of application for leave to appeal the report to the Supreme Court of Canada and, if leave is granted, section 138 of that Act, as enacted by section 11 of this Act, applies with respect to the appeal.

Coordinating Amendment

Bill C-30

16 If Bill C-30, introduced in the 2nd session of the 43rd Parliament and entitled the Budget Implementation Act, 2021, No. 1 (in this section referred to as the “other Act”), receives royal assent and section 11 of this Act comes into force on or before the day on which the other Act receives royal assent, then Division 26 of the other Act is deemed never to have come into force and is repealed.

Coming into Force

Order in council

17 (1) Subject to subsection (2), this Act comes into force on a day to be fixed by order of the Governor in Council.

Royal recommendation

(2) No order may be made under subsection (1) unless the appropriation of moneys for the purposes of this Act has been recommended by the Governor General and the moneys have been appropriated by Parliament.

Published under authority of the Senate of Canada

EXPLANATORY NOTES

Judges Act

Clause 1: New.

Clause 2: Existing text of subsection 2.‍1(1):

2.‍1 (1) Subject to subsection (2), sections 26 to 26.‍3, 34 and 39, paragraphs 40(1)‍(a) and (b), subsection 40(2), sections 41, 41.‍2 to 42, 43.‍1 to 56 and 57, paragraph 60(2)‍(b), subsections 63(1) and (2) and sections 64 to 66 also apply to a prothonotary of the Federal Court.

Clause 3: Existing text of the definition:

Minister means the Minister of Justice of Canada.‍ (ministre)

Clause 4: (1) and (2) Existing text of subsections 53(1) to (3):

53 (1) The salaries, allowances and annuities payable under this Act and the amounts payable under sections 46.‍1, 51 and 52.‍15 shall be paid out of the Consolidated Revenue Fund.

(2) For any period less than a year, the salaries and annuities payable under this Act shall be paid pro rata.

(3) The salaries and annuities payable under this Act shall be paid by monthly instalments.

Clause 5: Existing text of the heading and section 58.

Interpretation

58 In this Part, Minister means the Minister of Justice of Canada.

Clause 6: Relevant portion of subsection 59(1):

59 (1) There is hereby established a Council, to be known as the Canadian Judicial Council, consisting of

(a) the Chief Justice of Canada, who shall be the chairman of the Council;

Clause 7: Relevant portion of subsection 60(2):

(2) In furtherance of its objects, the Council may

.‍.‍.
(c) make the inquiries and the investigation of complaints or allegations described in section 63; and
(d) make the inquiries described in section 69.

Clause 8: Relevant portion of subsection 61(3):

(3) The Council may make by-laws

.‍.‍.
(c) respecting the conduct of inquiries and investigations described in section 63.

Clause 9: Existing text of section 62 to 71:

62 The Council may engage the services of such persons as it deems necessary for carrying out its objects and duties, and also the services of counsel to aid and assist the Council in the conduct of any inquiry or investigation described in section 63.

Inquiries concerning Judges

63 (1) The Council shall, at the request of the Minister or the attorney general of a province, commence an inquiry as to whether a judge of a superior court should be removed from office for any of the reasons set out in paragraphs 65(2)‍(a) to (d).

(2) The Council may investigate any complaint or allegation made in respect of a judge of a superior court.

(3) The Council may, for the purpose of conducting an inquiry or investigation under this section, designate one or more of its members who, together with such members, if any, of the bar of a province, having at least ten years standing, as may be designated by the Minister, shall constitute an Inquiry Committee.

(4) The Council or an Inquiry Committee in making an inquiry or investigation under this section shall be deemed to be a superior court and shall have

(a) power to summon before it any person or witness and to require him or her to give evidence on oath, orally or in writing or on solemn affirmation if the person or witness is entitled to affirm in civil matters, and to produce such documents and evidence as it deems requisite to the full investigation of the matter into which it is inquiring; and
(b) the same power to enforce the attendance of any person or witness and to compel the person or witness to give evidence as is vested in any superior court of the province in which the inquiry or investigation is being conducted.

(5) The Council may prohibit the publication of any information or documents placed before it in connection with, or arising out of, an inquiry or investigation under this section when it is of the opinion that the publication is not in the public interest.

(6) An inquiry or investigation under this section may be held in public or in private, unless the Minister requires that it be held in public.

64 A judge in respect of whom an inquiry or investigation under section 63 is to be made shall be given reasonable notice of the subject-matter of the inquiry or investigation and of the time and place of any hearing thereof and shall be afforded an opportunity, in person or by counsel, of being heard at the hearing, of cross-examining witnesses and of adducing evidence on his or her own behalf.

Report and Recommendations

65 (1) After an inquiry or investigation under section 63 has been completed, the Council shall report its conclusions and submit the record of the inquiry or investigation to the Minister.

(2) Where, in the opinion of the Council, the judge in respect of whom an inquiry or investigation has been made has become incapacitated or disabled from the due execution of the office of judge by reason of

(a) age or infirmity,
(b) having been guilty of misconduct,
(c) having failed in the due execution of that office, or
(d) having been placed, by his or her conduct or otherwise, in a position incompatible with the due execution of that office,

the Council, in its report to the Minister under subsection (1), may recommend that the judge be removed from office.

Effect of Inquiry

66 (1) [Repealed, R.‍S.‍, 1985, c. 27 (2nd Supp.‍), s. 6]

(2) The Governor in Council may grant leave of absence to any judge found, pursuant to subsection 65(2), to be incapacitated or disabled, for such period as the Governor in Council, in view of all the circumstances of the case, may consider just or appropriate, and if leave of absence is granted the salary of the judge shall continue to be paid during the period of leave of absence so granted.

(3) The Governor in Council may grant to any judge found to be incapacitated or disabled, if the judge resigns, the annuity that the Governor in Council might have granted the judge if the judge had resigned at the time when the finding was made by the Governor in Council.

67 [Repealed, R.‍S.‍, 1985, c. 16 (3rd Supp.‍), s. 5]

68 [Repealed, R.‍S.‍, 1985, c. 16 (3rd Supp.‍), s. 6]

Inquiries concerning Other Persons

69 (1) The Council shall, at the request of the Minister, commence an inquiry to establish whether a person appointed pursuant to an enactment of Parliament to hold office during good behaviour other than

(a) a judge of a superior court or a prothonotary of the Federal Court, or
(b) a person to whom section 48 of the Parliament of Canada Act applies,

should be removed from office for any of the reasons set out in paragraphs 65(2)‍(a) to (d).

(2) Subsections 63(3) to (6), sections 64 and 65 and subsection 66(2) apply, with such modifications as the circumstances require, to inquiries under this section.

(3) The Governor in Council may, on the recommendation of the Minister, after receipt of a report described in subsection 65(1) in relation to an inquiry under this section in connection with a person who may be removed from office by the Governor in Council other than on an address of the Senate or House of Commons or on a joint address of the Senate and House of Commons, by order, remove the person from office.

Report to Parliament

70 Any order of the Governor in Council made pursuant to subsection 69(3) and all reports and evidence relating thereto shall be laid before Parliament within fifteen days after that order is made or, if Parliament is not then sitting, on any of the first fifteen days next thereafter that either House of Parliament is sitting.

Removal by Parliament or Governor in Council

71 Nothing in, or done or omitted to be done under the authority of, any of sections 63 to 70 affects any power, right or duty of the House of Commons, the Senate or the Governor in Council in relation to the removal from office of a judge, a prothonotary of the Federal Court or any other person in relation to whom an inquiry may be conducted under any of those sections.

Clause 10: Existing text of the heading and section 72:

Interpretation

72 In this Part,

Commissioner means the Commissioner for Federal Judicial Affairs referred to in section 73; (commissaire)

Minister means the Minister of Justice of Canada.‍ (ministre)

Clause 11: New.

Bill S-5

BILL S-5 An Act to amend the Judges Act

SUMMARY

Judges Act

1 Section 2 of the Judges Act is amended by adding the following in alphabetical order:

2 Subsection 2.‍1(1) of the Act is replaced by the following:

Application to prothonotaries

3 The definition Minister in section 52.‍1 of the Act is repealed.

4 (1) Subsection 53(1) of the Act is replaced by the following:

Amounts payable out of C.‍R.‍F.

(2) Subsections 53(2) and (3) of the English version of the Act are replaced by the following:

Prorating

Monthly instalments

5 Section 58 of the Act and the heading “Interpretation” before it are repealed.

6 Paragraph 59(1)‍(a) of the English version of the Act is replaced by the following:

7 Subsection 60(2) of the Act is amended by adding “and” at the end of paragraph (a) and by repealing paragraphs (c) and (d).

8 Paragraph 61(3)‍(c) of the Act is replaced by the following:

9 Sections 62 to 71 of the Act are replaced by the following:

Employment of counsel and assistants

10 Section 72 of the Act and the heading “Interpretation” before it are repealed.

11 The Act is amended by adding the following after section 78:

PART IV Conduct Review Process

DIVISION 1 Complaints Concerning Judges

Definition

Removal from Office

Rosters

Complaints

Screening Officer

Reviewing Member

Review Panel

Hearing Panels

Appeals

Report to Minister

General

DIVISION 2 Requests Concerning Judges

Request

Establishment

Application of sections 119 to 146

DIVISION 3 Requests Concerning Office Holders

Removal from office

Request

Establishment

Application of sections 119 to 125 and 127 to 146

Removal from office

Orders and reports laid before Parliament

Leave of absence with salary

DIVISION 4 General

Powers, rights and duties not affected

Decision final

Remote appearance

Annual report

Replacement of “Minister of Justice of Canada”

12 (1) The Act is amended by replacing “Minister of Justice of Canada” with “Minister” in the following provisions:

Replacement of “ministre de la Justice du Canada”

(2) The French version of the Act is amended by replacing “ministre de la Justice du Canada” with “ministre” in the following provisions:

Replacement of “Minister of Justice”

(3) The English version of the Act is amended by replacing “Minister of Justice” with “Minister” in the following provisions:

Transitional Provisions

Ongoing inquiries and investigations

Inquiry requested under subsection 63(1)

Complaint or allegation referred to in subsection 63(2)

Inquiry requested under subsection 69(1)

Notice of application for leave to appeal

Coordinating Amendment

Bill C-30

Coming into Force

Order in council

Royal recommendation

EXPLANATORY NOTES

BILL S-5
An Act to amend the Judges Act

PART IV
Conduct Review Process

DIVISION 1
Complaints Concerning Judges

DIVISION 2
Requests Concerning Judges

DIVISION 3
Requests Concerning Office Holders

DIVISION 4
General