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.”
