How To Remove a Federally-Appointed Judge in Canada

With the shocking behaviour of Alberta Provincial Court Judge Robin Camp (since appointed to the Federal Court by Peter MacKay in a last gasp list of 2015 judicial appointments before the election), there is much confusion about how to actuallt discipline and/or remove a sitting federally-appointed judge. 

The long-standing traditional of judicial independence that goes back to 1703 means judges are secure from arbitrary dismissal or political interference. That is an important safeguard of both justice and democracy.

But what happens when a judge's behavour questions their fitness to remain on the bench? The following is an extract from my article in Canadian Lawyer Magazine from May, 2015 that discusses the procedure in Canada.

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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 most significant part of the CJC’s legislative mandate is to review any complaint or allegation made about any of the more than 1100 federally appointed judges. It created a procedural framework for dealing with complaints. 

The Canadian Judicial Council is chaired by the Chief Justice of the Supreme Court 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. In the age of self-representation, a number come from litigants or the criminally accused, unhappy with their up close and personal encounters with the pointy end of justice. Some come from members of the public unhappy with the actions or comments of judges as reported in the media. Others come from members of the legal profession unhappy with their interactions with the judiciary. Under the statute, 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 complaints that do not fall under the CJC’s jurisdiction. Of the 555 complaint letters received by the CJC in 2013-14, some 222 were classified in their Annual Report as “mandate” letters, indicating they were not about matters within the CJC’s jurisdiction or mandate. A further 19 letters received by the CJC were simply deemed “irrational”. 

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.

Complaints not rejected at intake are passed to the Chairperson of the CJC, or one of the Vice Chairs, 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 decide to refer a complaint to a full inquiry. It can’t call witnesses or compel the production of documents, but can ask for the assistance of outside counsel. It too can close the file and write a warning letter to the judge about any concerns regarding his or her behaviour but otherwise cannot take any disciplinary action.

If the Review Panel feels the “matter may be serious enough to warrant removal” it will refer a complaint to an Inquiry Committee, which can investigate, and hire its own and independent counsel to assemble and present information. This has only been done 8 times since 1971. The Inquiry Committee normally holds a public hearing, where the judge and the complainant can attend and give evidence about the matter that led to the complaint. The Inquiry Committee prepares a report, which goes to the full Canadian Judicial Council for discussion and decision as to whether it will 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 website points out, “Parliament has never had to face such a situation, but sometimes a judge will retire or resign before that step is taken.”

© Stephen Lautens 2015

Harper vs Omar Khadr - You Can't Get What You Don't Argue

The big story isn't that Omar Khadr was granted bail (now under appeal). The story that many missed is that the lawyers for the government opposing his bail application simply did not present opposing evidence or contradict many of Khadr's arguments.

For example, to win on bail pending appeal, the prisoner has to show that his/her   appeal or application for leave to appeal is not frivolous (i.e.: their main case has a chance of success). Khadr's lawyers produced experts in the field of the Military Commissions Act of 2006. They (Professor Glazier and Professor Solis) said that Khadr's position on the merits of the appeal is “correct in law”. The government presented no evidence or expert opinions of their own to contradict it.

As a result the judge found (as she only could with no opposing evidence from the government), that "his appeal is not frivolous. The Respondents [government lawyers] do not suggest otherwise."

Next is whether someone is a flight risk - will they flee the country or not show up for trial. Here is what the bail judge said: "The [government] does not take issue with [Khadr's] position that he will surrender himself as required." So again, no argument from the government that Khadr will flee or not show up.

Likewise regarding one of the other key tests for bail - risk to public safety. Each side is obligated to present evidence that shows release on bail could constitute a risk to the public.

Again, the bail judge summarizes the evidence presented by both sides:

"The Applicant argues he is a low risk to public safety and that his appeal in the United States has faced an indeterminate delay. He submits that that a failure to grant pre-appeal judicial interim release will make his strong appeal nugatory. The Applicant has provided affidavit evidence that he has been entirely cooperative and a model prisoner during his detention by United States and Canadian authorities, that he has strong community support, and is therefore a low risk to public safety. The Respondents do not challenge this affidavit evidence."

Note that the government lawyers "do not challenge this affidavit evidence."

So the government lawyers didn't argue or present any evidence that Khadr (a) didn't have a reasonable chance of winning his main appeal; (b) that Khadr wouldn't show up; or (c) that he was any risk to public safety.

Instead, they tried to argue that Canadian law - including his right to fundamental justice under the Charter of Rights and that most ancient human right in British jurisprudence, habeas corpus - didn't apply to Omar Khadr because of our treaty with the USA. The bail judge spent a lot of time discussing the interplay between international treaties and Canadian domestic law - including our Criminal Code bail provisions, the Charter and pre-Charter habeas corpus rights - and concluded that these rights apply in Canada.(Thank God.)

With all their eggs in this basket, and not bringing any other arguments to the table, the government lost. Harper has already said he'll appeal, but odds are very good he'll lose. It is a tight and well reasoned bail decision. And as the government didn't present any evidence regarding public risk, possible ultimate success or flight risk, it can't reopen them on appeal.

Those who now bitterly complain that Khadr is a danger to the public should remember the Department of Justice lawyers under the direction of Harper never argued that he was a danger and didn't present a shred of evidence at the bail hearing that he was, or that he didn't have a good legal case that he would be ultimately released on appeal as others have in challenging the legal validity of his conviction under the Military Commissions Act of 2006.

None of this goes to what actually happened when he was 15. It merely affirms a legal reality more important than any individual like Khadr - the law has rules that must be followed to the benefit of us all, and the government must always argue and prove its case against any person before they can keep them in jail and throw away the key. That basic principle protects us all, whether it is you, me or someone like Omar Khadr.

Read the full bail decision here: http://www.canlii.org/en/ab/abqb/doc/2015/2015abqb261/2015abqb261.html