Changes would deal with complaints against judges ‘in a more timely, cost-effective and fair manner’
Canada has introduced legislative amendments to the Judges Act that aim to strengthen the judicial complaints process that was first established 50 years ago.
Senator Marc Gold, on behalf of the federal government, introduced the amendments last week, according to a news release from the Department of Justice Canada, with a goal to “fully reform how complaints [against judges] are dealt with.”
For more serious complaints against federally appointed judges, where removal from the bench could result, the proposals are expected to amend and streamline the process.
“The current process is cumbersome, costly and can be prolonged for years. It needs to be updated in order to make the system less expensive and time-consuming,” Justice Canada said in its release.
The amendments would also impose mandatory sanctions on a judge when a complaint of misconduct is found to be justified but not serious enough to warrant removal from office. These sanctions would include counselling, continuing education and reprimands.
New legislation would require that the Canadian Judicial Council (CJC), which is responsible for administering the judicial conduct process, include in its annual report the number of complaints received and how they were resolved.
"Canadians need to know that the judicial system is fair to all,” Minister of Justice and Attorney General of Canada David Lametti said in the press release.
“Canadian society is changing and so are our expectations of judicial behaviour and accountability. While rare, complaints against judges that could result in removal from the bench should be dealt with in a more timely, cost-effective and fair manner,” he added. “This bill aims to accomplish that.”
In addition, Lametti said, judges would be accountable for the first time for less serious instances of misconduct.
In addition to streamlining the process to increase efficiencies and reduce the costs associated with recurring judicial review applications, the amendments also stand to improve confidence in the justice system, said Johanna Laporte, director of communications for the CJC, in an email to Canadian Lawyer.
“A key aspect of ensuring access to justice for Canadians is the confidence that they have in their judges and in the justice system,” Laporte said. “The Chief Justice and the Council have been calling for the past few years for reforms to be brought to the judicial conduct process, in order to make it more efficient and transparent, and we are hopeful that these reforms will be enacted soon.”
The federal government conducted public consultations in 2016 that informed the development of the amendments, said the release.
“The Council was pleased with the openness with which the Minister of Justice and his official listened to the Council’s views,” Laporte added.
The Judges Act and its proposed reforms
The Judges Act gives the CJC the right and duty to investigate the conduct of judges of the superior courts; its mandate applies to federally-appointed judges only, meaning the judges of the Supreme Court of Canada and federal courts, the provincial and territorial superior trial courts, and the provincial and territorial courts of appeal.
The CJC examines complaints and their handling, prepares a report and any recommendations, and implements the ensuing actions.
Under the proposed legislation the CJC would continue to preside over the complaints process, starting with a three-person review panel determining to investigate a complaint of misconduct or, if the complaint is serious enough to possibly warrant removal from the bench, refer it to another, five-person hearing panel.
If appropriate, a three-person review panel made up of a CJC member, a judge and a layperson could impose such sanctions as the issuing of a public apology, or courses of continuing education. A five-person hearing panel, made up of two CJC members, a judge, a lawyer and a layperson, could recommend removal from the bench to the minister of justice following a public hearing.
Judges who face removal from the bench would have access to an appeal panel comprised of three CJC members and two judges and, finally, to the Supreme Court of Canada, if that court agrees to hear the appeal. This is expected to streamline the current process for court review of CJC decisions, which involves judicial review by two additional levels of court, the Federal Court and Federal Court of Appeal, before a judge can ask the Supreme Court of Canada to hear their case.
The amendments would also provide for a funding mechanism for the new process.