Light through the window
- Subtitle: Cover Story
|Illustration: Martin O'Neill|
The Canadian Judicial Council is all about confidence — confidence in the judiciary’s independence, competence, integrity, and underlying fairness. Over the course of the inquiry into Douglas’ past and her fitness to remain on the bench, the confidence of both the judiciary and the public in the CJC was damaged in procedural wrangling and public disputes. The damage to the CJC’s policies and procedures was so great that even before the Douglas inquiry limped to a bloody conclusion last November, the CJC made a public call for submissions on how it can do a better job. The inquiry into Associate Chief Justice Lori Douglas had become an inquiry into the Canadian Judicial Council.
Prior to 1971, s. 99 of the BNA Act governed judicial discipline, simply saying, “Judges of the Superior Courts shall hold office during good behaviour, but shall be removable by the Governor General on Address of the Senate and House of Commons.” The issue of procedural fairness came to a head in the 1960s when the fitness of Ontario Supreme Court justice Leo Landreville to remain on the bench was questioned. He had been involved in a shady stock deal in the 1950s while he was mayor of Sudbury before his appointment to the bench. Formal charges of corruption were thrown out, but a federal inquiry was established and the commissioner concluded that whether or not Landreville had been guilty of corruption, his evasiveness in subsequent securities inquiries was “a serious violation of his personal duty as a Justice.” A special joint committee of the Senate and House of Commons appointed in late 1966 recommended to the governor general that he remove Landreville as a judge. Shortly thereafter Landreville tendered his resignation to avoid being dismissed.
As a postscript, Landreville spent the next decade relitigating the legitimacy of the procedure used to force his resignation. In 1977, the Federal Court finally agreed with Landreville that the commission of inquiry improperly exceeded the terms of its original inquiry. It was a hollow victory, as 10 years had passed and his resignation stood.
The CJC’s materials say the “procedure followed in the Landreville case, notably regarding the fair treatment of the judge, was the subject of significant criticism and this was one of the factors motivating the adoption of what is now Part II of the Judges Act.” It was the end of Landreville but the beginning of the Canadian Judicial Council.
CJC CREATED IN 1971A creature of statute, the Canadian Judicial Council was created in 1971 under the Judges Act with “the mandate to promote efficiency, uniformity, and accountability, and to improve the quality of judicial service in the superior courts of Canada.” The principal part of the CJC’s legislative mandate is to review any complaint or allegation made about any of the more than 1,100 federally appointed judges, replacing the ad hoc inquiry process used in Landreville.
The council is chaired by the chief justice of Canada, who presides over 38 other council members, who are the chief justices and associate chief justices of Canada’s superior courts, the senior judges of the territorial courts, and the chief justice of the Court Martial Appeal Court of Canada. There are no lay members on the CJC.
Complaints against sitting judges come from a variety of sources, including litigants or the criminally accused, unhappy with their up-close and personal encounters with the pointy end of justice, and lawyers or concerned members of the public. Requests to review a judge’s conduct can also come from a provincial attorney general or the federal minister of justice. Complaints can be made anonymously.
The CJC has a published complaints procedure policy. Frivolous or meritless complaints about a judge are weeded out shortly after intake by the executive director. These may be complaints about things other than the judge’s conduct, or otherwise fall outside the CJC’s jurisdiction. Of the 555 letters received by the CJC in 2013-14, some 222 were identified in its annual report as “mandate” letters, indicating they were about matters outside the CJC’s jurisdiction or mandate. A further 19 letters were simply deemed “irrational.” Only 159 complaints resulted in opening a file in 2013-14 compared to 201 in the previous year. The CJC received fewer than 25 complaints a year in its first decade, rising steadily to pass 100 per year in 1990-91. For the next decade it averaged 167 complaints a year. That number hasn’t changed dramatically since 2002.
The CJC’s web site has samples of complaints from each fiscal year going back to 1990-91 with a few paragraphs about each complaint. From 2003 to 2014, between two and nine complaints per year are summarized. From 1990 to 2002 an average of almost 23 cases a year were reported. Up until the CJC’s 2001-02 fiscal year, its annual report published limited but useful information regarding the nature of the complaints and complainants, such as a breakdown of complainants by gender and complaints generated by subject matter, such as criminal law, family law, and the number of complaints by in-person litigants (40-50 per cent). There was never any reporting on the judges, courts, or provinces from which the complaints originated. In 2002-03, the CJC simply stopped reporting even limited breakdowns of the complaints received or dealt with, only giving the raw number of cases opened, closed, and still under review.
The CJC is quick to point out in its materials that it is specifically exempted from the Access to Information Act. The Judges Act further directs it to not disclose information connected with the investigation of a complaint where it is in the public interest, which turns out to be the vast majority of cases. While not a collegial process, some critics say the process is far too cozy with judges judging judges overwhelmingly behind closed doors.
PURPOSEFULLY OPAQUEThis opaqueness is on purpose. The CJC points to s. 17 of the United Nations General Assembly’s “Basic Principles on the Independence of the Judiciary,” which says initial stage examinations of judges shall be confidential. In the 2013 Federal Court of Appeal case Slansky v. Canada (Attorney General), the court said it serves four important functions: it avoids disclosure of unsubstantiated complaints that could undermine a judge’s functional authority; it improves the overall effectiveness of the investigation process and encourages full and frank disclosure by the judge at an early stage; it protects privacy concerns of the judge; and it protects judicial independence. All good reasons, say some observers, but it leaves little room for a counterbalance of accountability and transparency.
Complaints not rejected at intake are passed to the chairperson of the CJC, or one of the vice chairpersons, who can close the file as without merit, with or without the input of the judge complained of or his or her chief justice. Alternately the chairperson can refer the complaint onto the next stage, a review panel of three or five judges, which can also decide to close the file with or without a warning to the judge, or refer a complaint “serious enough to warrant removal” to the next stage, a full inquiry.
It is the inquiry committee that can investigate and hire its own and independent counsel to assemble and present information. The inquiry committee is the first public stage of the process, where the judge and the complainant can attend and give evidence. A lawyer of at least 10 years seniority may be appointed to the inquiry committee by the minister of justice. The inquiry committee prepares a report, which goes to the full Canadian Judicial Council for discussion and decision as to whether it will finally recommend the removal of the judge by Parliament.
The Canadian Judicial Council has only recommended three times to remove a judge from office since it was created in 1971. In reality, however, as the CJC’s web site points out, “Parliament has never had to face such a situation, but sometimes a judge will retire or resign before that step is taken.” In April 2009, justice Paul Cosgrove resigned after the CJC recommended his removal for abusing his judicial powers during an Ontario murder trial that ended with Cosgrove staying the charge for a slew of supposed Charter violations. His misconduct was “pervasive in both scope and duration,” said the CJC’s final report to the minister of justice. By 2012, only eight inquiry committees had reported on the conduct of judges since the CJC’s creation.
The process is supposed to be inquisitorial rather than adversarial, but the judicial review process uncomfortably serves two masters — the integrity of and confidence in the judicial system and the rights of the judge under investigation. The CJC recently described this balancing act: “Public awareness and understanding of the judicial conduct review process is key to preserving public confidence in the judiciary. At the same time, the complaints process should not unduly undermine the privacy and reputation of the judge whose conduct is subject to review, which justify the requirements of procedural fairness.”
The seemingly unanswerable debate is what harms confidence in the judicial system more: deliberating in secret and keeping the vast majority of complaints away from prying eyes or revealing all so the public can have confidence that the system works? Gavin MacKenzie, who chaired the Canadian Bar Association’s committee that answered the CJC’s call last year for submissions for reform, observed that every self-governing body is vulnerable to the criticism “that they protect members of their profession at the expense of the public, rather than acting in the public interest.”
Interestingly, many judges look upon the CJC with the same annoyance many lawyers have with the complaints process of their law society. With almost 1,200 judges and 160 complaint files opened a year, a not-so-surprising number of judges interviewed have received complaints. Most go away with a letter from the judge or look at the transcripts, but although none would go on the record, many judges still resent a call from the CJC to account for themselves.
LURCHING THROUGH THE SYSTEMThe progress of the Douglas case before the CJC has been publicly dissected at length. Her now-deceased husband, Jack King, who was also a lawyer, posted private boudoir photos of the future judge on the Internet, without her knowledge or consent, in an attempt to interest another man in his wife. That other man, Alex Chapman, a divorce client of King’s, was described in the press as “a deeply suspicious, highly litigious man who once sued his own mother and who has a criminal record for arson, theft, and uttering threats.” Chapman had agreed to a settlement of $25,000 from King in 2003 for harassment, but in July 2010 filed a complaint with the CJC that he had been sexually harassed by Douglas. For the next four years it would lurch through the system.
After the review stage, Douglas faced four grounds for removal: that she had allegedly sexually harassed Chapman in 2003; that she had altered a diary entry relevant to the facts; that there were nude photos of herself; and that she had not disclosed in her application the existence of the photos as something that “could reflect negatively on yourself or the judiciary.” Without a hint of irony, the CJC’s official notice to Douglas observed that the offending photographs “could be seen as demeaning to women.”
As the sad details emerged, public and media sympathy began to tilt in Douglas’ favour as more was learned about the complainant and her husband’s behaviour. Testimony supported that Douglas was unaware of her husband’s activities, and the chairman of her original judicial appointments committee was not only aware of the issue but said he had informed the other members.
Many were beginning to suspect what was really unfolding was a re-victimizing of a woman judge by an embarrassed conservative judiciary where Douglas was being punished for the non-consensual violation of her private life by a manipulative husband and a decidedly vindictive complainant. Numerous legal and social observers said the case was more about a pearl-clutching response to revenge porn than fitness to serve. Professor Susan Drummond of Osgoode Hall Law School commented that a judge like Douglas was being victimized twice — once by her husband for betraying a trust in publishing private photos without consent, and again by the CJC invading her privacy by insisting on looking at and judging photos never intended for anyone else’s eyes.
As the battle at the CJC spilled out into the public, commentators observed the aggressiveness with which the council pursued the removal of Douglas from the bench. Not surprisingly, Douglas pushed back hard against the CJC. The system is set up so there is no middle ground or compromise discipline, except resignation by the judge, something critics and commentators like the CBA have pointed out as a major problem.
Douglas and her counsel Sheila Block alleged there was a reasonable apprehension of bias against her by the CJC panel. The hearings stalled in July 2012, and three parties, including CJC-appointed independent counsel Guy Pratte, filed applications for judicial review in the Federal Court. It was the objection of its own independent counsel that stung the CJC the most. When the inquiry committee, which had been at loggerheads with Pratte, decided to appoint and use its own lawyer rather than Pratte to “aggressively” cross-examine witnesses at the hearing, Pratt requested judicial review by the Federal Court. In a letter dated Aug. 20, 2012, Pratte told the CJC’s executive director Norman Sabourin that treating independent counsel as prosecutor was “risking tainting the entire process with an appearance of bias.” A week later he quit.
ROLE OF INDEPENDENT COUNSEL KEYThe key role of independent counsel was at the centre of the debate and perceived fairness of the Douglas inquiry. Pratte objected to being directed by the inquiry panel, noting his role was to act impartially and in the public interest, not as a prosecutor or hired gun. Earl Cherniak, a former CJC independent counsel, agrees. He said in an interview that, “independent counsel is just that. It has no client and is acting in the public interest, not under the direction of the CJC.”
The inquiry panel also claimed solicitor-client privilege with its independent counsel regarding instructions and communications, particularly the sharp exchange of letters with Pratte in disputing his role. At the Federal Court, Justice Richard Mosley (of the “Robocall” case) agreed that independent counsel was indeed supposed to be independent and not the CJC’s lawyer, and as such not subject to solicitor-client privilege. However, Mosley also found the assertion of solicitor-client privilege had not in and of itself tainted the CJC proceedings against Douglas with bias.
Between the filing and hearing of the application before Mosley, the inquiry committee — consisting of Alberta Chief Justice Catherine Fraser, Newfoundland and Labrador Chief Justice Derek Green, P.E.I. Supreme Court Chief Justice Jacqueline Matheson, Barry Adams, and Marie-Claude Landry — surprised everyone by resigning en masse on Nov. 20, 2013. In its reasons for resignation, the panel complained of the delays and court applications, asserting the Federal Court had no jurisdiction over its proceedings. On March 28, 2014, Mosley ruled otherwise, but the CJC panel’s 10-page reason for resignation are remarkable in the bitter frustration it exhibits at being thwarted. In places it reads more like a party’s affidavit, contradicting assertions repeated in the media and by Douglas’ counsel and relitigating Mosley’s decision.
When faced with these setbacks, the inquiry committee and the CJC had simply overturned the card table. In letters to Block immediately following Mosley’s decision, the CJC took the narrowest possible view of which activities of independent counsel were not covered by solicitor-client privilege and largely stuck to its own interpretation.
The media noted how the more Douglas defended, the more procedurally petulant the CJC became. An independent inquiry process became adversarial and intractable. Tactics began to resemble those used in a bitter divorce. It empanelled a new inquiry committee March 13, 2014 — now with only three members: Quebec Superior Court Chief Justice François Rolland as chairman, Supreme Court of British Columbia Associate Chief Austin Cullen, and Stewart McKelvey partner Christa Brothers. On April 22, it appealed Mosley’s decision.
The original complaint of sexual harassment of Chapman was dropped. On Sept. 4, the CJC added complaints against Douglas, now alleging misuse of her judge’s expense allowance for claiming $6,400 worth of medical claims, and four economy flights to Toronto to consult with Block during the CJC inquiry. Her lawyer was quick to point out the expenses were approved by the Commissioner for Federal Judicial Affairs over the more than three years of the CJC proceedings against Douglas. This final kick at the beleaguered judge showed how far things had degenerated.
Finally on Oct. 1, 2014, Douglas brought a motion before the new panel to dismiss parts of the complaint, move the hearings out of Manitoba, return and declare the nude photos inadmissible, and seal her medical records. On Nov. 4, the committee denied the motion and on Nov. 19 ruled her psychiatric records were to be provided to the new independent counsel, Suzanne Côté, who eight days later was appointed to the Supreme Court of Canada.
The following day, Douglas tendered her resignation, effective May 21, 2015, and the inquiry was adjourned to that date. The next day, an order staying the decision of the inquiry committee regarding the admissibility of the photographs was issued by the Federal Court. As a condition of the arrangement, which allows Douglas to retire with pension at 10 years and one day of service, she undertook “not to comment on this matter.” The costs to the CJC were at least $3 million — with bills still coming in.
‘A COMPLETE EMBARRASSMENT’According to Allan H. Wachowich, former chief justice of the Alberta Court of Queen’s Bench and a member of the CJC from 1993 to 2010, the Douglas case “was a complete embarrassment in many ways.” While his experience on the CJC was that the majority of judicial complaints have no basis, he also feels the CJC suffers from a lack of introspection. “I don’t remember them ever having a session saying: ‘In light of what we’ve done in the last five years where can we improve?’ They need to have that self-examination, and from what I know, they’re not doing that.”
Where next for the CJC? In early 2014, while the Douglas inquiry was still on the boil, the CJC asked the public for submissions for a “Review of Judicial Conduct Process of the Canadian Judicial Process.” The submission period was only open for a few months and the submissions are not available to the public. Its 2013-14 annual report notes the “highlights of the input received” include more transparency, the involvement of lay people in the process as is the case in some other jurisdictions, and fewer intermediate steps in the process. CJC spokesperson Johanna Laporte says they “are currently in the drafting stages of new procedures and other accompanying regulatory instruments, which we hope to have completed in the coming months.”
Incongruously, the CJC also lists as a highlight the suggestion that “a lawyer presenting the case to an inquiry committee should take an active role in trying to prove misconduct on the part of a judge,” which is an attitude opposed by many and that got them in so much trouble in the Douglas matter. The Canadian Bar Association in its submission to the CJC disagrees, recommending the “role of independent counsel currently contemplated by CJC bylaws” be continued, and the “role of Committee Counsel should be reconsidered and possibly eliminated in favour of an administrative coordinator. If it is to continue, the role should be limited to providing administrative support and legal advice, in a public forum, and not extend to questioning witnesses or drafting reasons.”
MacKenzie, who is also a past treasurer of the Law Society of Upper Canada, points to the success Ontario and other jurisdictions have had with lay involvement in the discipline process. “The Ontario Judicial Council has had it for years and the law society has benefitted from it for more than 40 years,” he says. When the CBA made its 16 key recommendations to the CJC, “one thing that became apparent was that the judicial councils at the provincial levels have been reformed to a much greater extent” including the addition of lay members, who bring “a distinct contribution and broader perspectives.”
Wachowich agrees. Lay people are important, he says, to remind the CJC “how your decisions are affecting the public or how are public are going to look at this.” When asked if the question of lay involvement was ever considered in his 17 years on the CJC, he says, “I don’t think it has ever come up.”
Everyone, including the CJC, has called for more transparency in its proceedings, but no one can agree on what that means, especially as the CJC clings to extreme confidentiality at the early stages of investigations. Retired Ontario chief justice Patrick LeSage, who spent 15 years as a council member said, “a review of their procedure is timely and necessary.” He previously observed the CJC is “a committee. It’s not a court,” and while he “likes and respects his colleagues on the CJC,” the Douglas inquiry showed many flaws in how it sees itself.
Wachowich says what is required is nothing less than “an examination of their conscience,” but in his experience of 17 years on the CJC, “that is not being done.” It remains to be seen whether the experience of the Douglas inquiry and call for reform will satisfy the need for what Wachowich calls “letting the light shine through the window once in a while.”
Published in Canadian Lawyer Cover Story