In response to Justice Canada’s request for input on how federally appointed judges should be disciplined — and how their legal fees should be paid — the Canadian Judicial Council released a position paper on Wednesday outlining its recommendations for reform under the Judges Act.
The CJC’s three key recommendations are:
• to formalize Council’s authority to impose sanctions and remedial measures against a judge;
• that the lawyer appointed under the authority of the designated member of the Judicial Conduct Committee to lead the process be tasked with presenting all the evidence against the judge rather than deciding how to proceed in the “public interest”;
• to minimize expensive and cumbersome requests for judicial review, that the decision of a Judicial Discipline Committee be final, subject only to a right of appeal to an Appeal Tribunal of Council, after the process is concluded.
“There were a number of important points we wanted to make for the Justice minister,” says Johanna Laporte, director of communications and registry services for the CJC. “The key one is in the area of sanctions, and penalties . . . Some conduct matters might not be so serious as to require outright removal, but might warrant a letter of concern, remedial training or maybe even a suspension.”
The second recommendation is the move toward an adversarial rather than inquisitorial disciplinary process, Laporte says. A judge who is undergoing a disciplinary process has a lawyer who is defending her or him, and “to balance it out, Council would have a lawyer to present the case against the judge. Previously the Council had a lawyer presenting the public interest. Now, it’s clear: you’ve got a lawyer for the judge, and a lawyer against the judge who are [now] on an even playing field.”
The third key recommendation is “one we feel will appeal to most Canadians because of the money and time spent arguing” a disciplinary case, Laporte notes, which is that the decision of the Judicial Discipline Committee be final, subject only to a right of appeal. Judges would have an opportunity to make an appeal to the CJC Appeal Tribunal, and “after that process is exhausted, there would also be the opportunity for the judge to go to the Supreme Court, with leave.”
Alison Gray, of Bennett Jones LLP in Calgary, was a co-counsel for the Women’s Legal, Education and Action Fund when it intervened before the CJC in the disciplinary procedure against Federal Court Justice Robin Camp, who made insensitive comments about a sexual assault victim in 2014 when he was a provincial court judge in Alberta (he has since apologized for his remarks). The CJC’s proposal for reform “really addresses the concern regarding the remedies available to [the Council],” says Gray, in expanding the options from recommending removal only.
“They’re hamstrung [currently] in making other [remedial] recommendations,” such as for education, she notes; and the public is left with the impression that judges are “untouchable” in that they can only be removed but not disciplined or educated otherwise.
“So, to increase the CJC’s ability to provide sanctions is positive. . . . I think we need more consideration of the processes set out in the three levels [of judicial disciplinary process], to protect judges but also to let the public have some insight into judicial complaints, so that it continues to be open and transparent. But I think at least we’re going in the right direction.”
Molly Reynolds, of Torys LLP in Toronto, was a counsel for former Manitoba associate chief justice Lori Douglas in her disciplinary process before the CJC between 2010 and 2014.
It can be easy to forget that it is a “human process” that judges go through before the Judicial Inquiry Committee, Reynolds says; in the Douglas proceeding, “that particular inquiry committee felt this [process] was entirely inquisitorial, not adversarial. Now, to see the CJC presenting the process as adversarial,” in which the CJC’s independent counsel is tasked with presenting evidence against the judge rather than proceeding simply in the public interest, “is surprising. Clarity one way or another would be useful.”
Reynolds also expressed concern over the lack of specificity in grounds for removal in the Judges Act, which provides that a judge may be deemed unfit to remain in office “by his or her conduct or otherwise.”
“Those grounds for removal were at issue in the Douglas case,” says Reynolds. The imprecise wording of “or otherwise” takes away from the sound, correct purpose of the Act, she suggests; “we should be looking at whether a judge has displayed good behaviour. . . . It’s important to examine what the scope of possible grounds for removal means, and what they can include.”