Wednesday, November 11, 2015

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.

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