Canadian Judicial Council
The Canadian Judicial Council is a federal body created under the Judges Act (R.S., 1985, c. J-1), with the mandate to "promote efficiency, uniformity, and accountability, and to improve quality of judicial service in the superior courts of Canada". The Council is also mandated to review "any complaint or allegation" against a superior court judge. These are appointed by the federal government. In most provinces, there is a provincial judicial council mandated in regard to provincially-appointed judges.
The Council is chaired by the Chief Justice of Canada, currently the Right Honourable Beverley McLachlin. There are 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.
Review of Complaints against Federal judges in Canada
The Canadian Judicial Council was granted power under the Judges Act to investigate complaints made by members of the public or the Attorney General about the conduct (not the decisions) of federally appointed judges. After its review and investigation of a complaint, the Council can make recommendations, including to Parliament through the Minister of Justice that a judge be removed from office.
By directing complaints to the Canadian Judicial Council, Canada's Parliament acknowledges that the public must have a way to voice its concerns about judges. At the same time, the system must allow judges to respond to allegations of misconduct in a fair way. The entire process must be efficient, fair, and objective. In all cases, judicial independence - the foundation of Canadian justice - is central to the process.
Canada is one of the very few countries where a complaint can be made against the Chief Justice in the same way as any other judge. The Chief Justice is not involved in the review of complaints.
The Council was created in 1971 following years of discussion about the need to coordinate professional development and judicial conduct matters for judges, in a way that would respect the judiciary as an independent branch of government. The review of complaints had previously usually been coordinated by the federal Department of Justice, with the occasional involvement of local Chief Justices.
A key factor that facilitated the creation of the Council was the case of Justice Landreville. He was charged with a criminal offence. Those charges were dismissed, but allegations of impropriety continued to be made by some. This gave rise to quite a bit of public debate; some in the legal profession criticized the fact that the judge was still sitting. A Committee of the Law Society, despite not having jurisdiction over a federally appointed judge, produced a negative report without even notifying Landreville of its proceedings.
There being no defined process to formally inquire into the conduct of a judge, the government then constituted a one-man Royal Commission headed by former Supreme Court Justice Ivan Rand. In his report, Rand found some improprieties and was critical of Justice Landreville. However, some said Mr Rand was biased and famous constitutional lawyer J.J. Robinette who represented Justice Landreville before the Commission was seriously critical of the process.
After the Rand report became public, a joint Committee of Parliament eventually recommended the judge's removal and he resigned.
There were many who came to a view that the process which had been followed was flawed: the absence of a process defined in legislation to review the conduct of a judge left too much room for review by the law societies, government or Parliament, of even other bodies without necessarily involving the judiciary.
Professor William Kaplan, in his book Bad Judgment, wrote that "Without a doubt, the Landreville case figured prominently in the decision to establish the council." He quotes the Parliamentary Secretary to the Minister of Justice who spoke during second reading of the Bill that created the Council: "Because the independence of the judiciary is an integral part of the Canadian democratic process, it is important that the judiciary become, to some extent, a self-disciplinary body." (Kaplan, p. 194)
"There is no doubt that the awkwardness and uncertainty of the Landreville proceeding was a factor motivating Parliament to adopt this new procedure." (Martin Friedland, A Place Apart: Judicial Independence and Accountability in Canada, 1995, p. 88).
While the majority of complaints are dealt with quickly and with resolve, there are some instances where a judge's conduct is considered to be of sufficient concern that further inquiry is warranted.
Since 1971, there has been a total of 8 inquiries into the conduct of a particular judge: Cose (2008), Boilard (2003), Flynn (2003), Flahiff (1999), and Hart, Jones and MacDonald (1990).
There have been many criticisms over the past couple decades that the Canadian Judicial Council (CJC) is not fulfilling its mandate. The CJC has only recommended the removal of about 5 judges in its forty-year history even though it has probably received about 15,000 complaints. In September 2003, the Canadian Justice Review Board (CJRB), a non-governmental advocacy group and "coalition of citizens," expressed concern that the CJC is far too secretive. "The judges are paid out of the public purse and they are performing a public function in a public place. Given those things, people have a right to know what is going on within the judiciary. One thing that we think is important is to let judges and other people in the judicial system know that they are being looked at and scrutinized," said then-CJRB Chairman and UWO Law Professor Robert Martin The CJRB also sent a complaint letter to the Auditor General of Canada.
A Facebook page (Canadian Judicial Council Complaints Forum) has also been established for people to register their complaints against the Canadian Judicial Council and judges. The creator of the page expressed concern that the Federal Department of Justice refused to investigate any complaints against the CJC on the grounds of judicial independence. Tellingly, the page has hardly any followers.
One criticism levelled at the CJC is that it is composed only of judges. Some say that the review of complaints, in particular, should not be the exclusive domain of judges but should include others. Critics point to other Judicial Councils, such as provincial bodies which include the participation of lawyers and members of the public.
At the national level, the composition of judicial disciplinary bodies varies extensively. In the United States, while judges are involved in the review of complaints at the Federal level, the Congress has the power of Impeachment, and can remove any judge from office. In the United Kingdom, complaints are initially reviewed by advisory committees made up of members of the judiciary, the legal profession, the magistracy and the public. A fully independent ombudsman can review decisions relating to complaints. However, any decision to discipline a judge, short of removal from office, rests with the judiciary.
Some in Canada have also asked that complaints against judges be made public. Anyone who wishes to complain against a judge can do so publicly in the media, and many do. However, it is extremely rare for media organizations to actually report on judicial complaints. In such cases, the Council's practice has been to publicize the outcome of the complaint. This was the case, for example, in regard to a complaint made against the Chief Justice of Canada in 2008. In reality, almost all complaints to the CJC are kept private between the complainant, the CJC and the judge. This means that members of the public, and even the Department of Justice, have no knowledge whatsoever about a judge's history of complaints. There could be dozens of complaints against a judge, and nobody but the CJC and the judge would know about it unless the matter is made public by the complainant or becomes the subject of investigation by an inquiry committee of the Council.
- Judges Act - establishing statute
- Crosby, Connie. "Canadian Justice Review Board - Curious Question". SLaw Magazine. Retrieved May 3, 2013.
- "Press Release," Canadian Justice Review Board, 4 Feb. 2005, accessed 13 July 2013
- "Judicial Appointments and Conduct Ombudsman homepage," Ministry of Justice of the United Kingdom, 17 Feb. 2012, accessed 16 July 2013.
- "Review of a complaint against the Chief Justice of Canada," Canadian Judicial Council, 25 Sept. 2008, accessed 16 July 2013.