Thank you, Mr. Chairman. I thank the Minister for his opening remarks. First of all, I would like to thank the Committee Members of the Standing Committee on
Social Programs. Good afternoon.
The Standing Committee on Social Programs reviewed Bill 7, An Act to Amend the Territorial Court Act, 1998 at its meeting on April 20, 1998 and May 21, 1998. The committee appreciates the assistance of the Honourable Steven Kakfwi, who presented the bill on behalf of the Minister of Justice on April 20th. The committee would also like to thank the Minister of Justice, who appeared before the committee on May 21, 1998, to respond to issues of concern that the committee had brought to his attention. Officials from the Department of Justice also assisted the committee on both occasions.
Bill 7 is, in large part, a response to developments over the last several years relating to judicial independence in the Northwest Territories and across Canada. Two directly related decisions are decisions of the Northwest Territories' Courts. In 1992, the NWT Court of Appeal held the composition of the Judicial Council, the body that hears complaints against territorial court judges, would violate the Canadian Charter of Rights and Freedoms if all the members of the council were appointed. The court also committed that the Legislature has a moral duty to amend the Territorial Court Act, in this area.
Mr. Chairman, in 1997, the NWT Supreme Court held that provisions in the Territorial Court Act, relating to deputy Territorial Court judges violates the Charter because the deputy judges did not have security of tenure. The court also laid out rules relating to conflict of interest for judges. As well, the Supreme Court of Canada has committed that the judges should not be appointed solely at the discretion of Cabinet.
Mr. Chairman, instead, there should be consultation with an independent body. Bill 7, would amend the Territorial Court Act to change the process for the appointment and discipline of Territorial Court judges. The amendments do not affect justices of the NWT Supreme Court.
The bill would establish Judicial Appointments Advisory Committee, which would make recommendations to the Commissioner in Executive Council about the appointment of Territorial Court judges; amend provisions dealing with the independence of deputy Territorial Court judges to protect their security of tenure or to restrict their outside business activities; provide that the Chief Judge of the Territorial Court may serve as Chief Judge for only one five-year term and allow the current Chief Judge to serve for another five years; authorize the Chief Judge to establish for the continuing education of judges and for the performance evaluation of judges; change the membership of the Judicial Council, which is the body that receives, investigates and makes decisions about complaints against Territorial Court judges and change the grounds and methods for discipline of Territorial Court judges.
The standing committee questioned the Minister and his officials about several aspects of the bill. Following our decisions, the Minister agreed to amend the bill in response to some of the committee's concerns. A motion was passed in committee to amend the bill to increase the lay representation and the Judicial Appointments Advisory Committee from three to four persons. This will create equal balance between members with a legal background and those without, on the committee that makes recommendations to the Cabinet about the appointment of Territorial Court judges and deputy judges. The same motion also amended the bill to clarify that the lay representatives must not be members or past members of any law society in Canada.
A motion was also passed in committee to address a concern raised by the Minister. The bill was amended to provide the members of the Judicial Council who serve on a subcommittee that investigates a complaint against a judge may continue to serve as a member of the council in subsequent proceedings on that complaint.
Mr. Chairman, Members discussed this proposal with the Minister and were advised that the procedures of the council will be set by the council and that this amendment would allow the council to ensure that a quorum will be maintained in those circumstances where that might be a concern.
Bill 7, has now been reprinted as amended by the two motions in standing committee. Some Members of the standing committee continue to have concerns with aspects of the bill. The bill requires the Law Society and the Commissioner in Executive Council to take into account the importance of reflecting the diversity of the population and the gender balance of the Northwest Territories when making appointments to Judicial Appointments Advisory Committee. However, the bill does not require the Law Society and the Commissioner in Executive Council to consider these factors when making appointments to the Judicial Council and the disciplinary body.
The committee recognizes that the legal community and the benches in the territories are small and that half of the Judicial Council is composed of serving judges. However, in the view of some Members, these principles are fundamental to improving the quality of the justice system, and it will not be too restrictive to require that they may be given some consideration.
A further outstanding area of concern deals with recommendations for compensation for legal costs. The bill provides for the Judicial Council to consider whether it should recommend that the government pay the legal fees for the judge who is the subject of a complaint. However, the bill is silent as to whether the council should consider recommending that the legal fees of the complainant be paid.
The committee is well aware a person who files a complaint against a judge is not responsible for prosecuting the complaint. However, Members feel that there will be circumstances in which it would be appropriate for the complainant to hire legal counsel. The complaints that go to full inquiry are rare, and it is not suggested that the complainant's legal fees should be paid in all cases. However, some Members feel the bill should specifically authorize the Judicial Council to consider whether it should recommend that the government should compensate the complainant for his or her legal fees.
The Minister advised the standing committee that he would review these two matters further. The Minister provided the committee copies of two motions intended to address these issues and we understand the Minister will move these motions to amend Bill 7 today.
The first motion would amend clause 10 in three areas. It would clarify that the lay representatives on the Judicial Council may not be members or past members of any Canadian Law Society, so that this area of the bill is consistent with amendments made in standing committee in relation to the Judicial Appointments Advisory Committee. It would also require the Law Society and Cabinet to consider the diversity of the population and the gender balance of NWT when appointing representatives to the Judicial Council, while making it clear that a failure to achieve balance does not invalidate proceedings for decisions of the council.
Finally, it would add a provision specifically authorizing the Judicial Council to recommend that a complainant be compensated for his or her legal costs where a complaint is before the council. The motion would provide that the council may only recommend compensation where it determines that the legal costs were necessarily incurred due to the nature and circumstances of the complaint.
The second motion would amend clause 11 to add the power to make regulations respecting or limiting the amount of compensation that may be recommended to be paid to a complainant. The power to make regulations on this matter in relation to compensation for a judge's legal costs already exists in Bill 7.
Mr. Chairman, committee Members may have additional comments or questions on this bill as we proceed. This concludes standing committee's comments on Bill 7, An Act to Amend the Territorial Court Act. Thank you, Mr. Chairman.