Possibilities for Further Reform of the Federal Judicial Discipline Process
Part 2: Background
The CJC’s 2014 discussion paper provides a thorough overview of the legal and policy considerations that underpin the federal judicial discipline process. Accordingly, this part of the paper will only provide brief overviews of the origins of the process, the current process, and the CJC’s 2015 process changes in order to better situate the options for possible reforms set out below in Part 3.
2.1 Origins of the Process
Under s. 99 of the Constitution Act, 1867, the judges of Canada’s superior courts, all of whom are federally-appointed, hold office “during good behavior” until age 75, “but shall be removable by the Governor General on address of the Senate and House of Commons.”Footnote 3
Determining when the duty of good behavior has been breached, and what constitutes misconduct so serious that it warrants a judge’s removal from office, is often a difficult task. It requires a thorough investigation and inquiry that meets the requirements of procedural fairness, and that balances the need for judges to be held accountable for their conduct with the need to ensure that judges remain sufficiently independent, both in fact and public perception, to adjudicate the disputes that come before them.
The inquiry into allegations of misconduct against Justice Leo Landreville of the Ontario superior court, undertaken in the mid-1960s, demonstrated the need for a process to investigate allegations of judicial misconduct and determine their seriousness at arm’s length from the executive and legislative branches of government. When the allegations against Justice Landreville first surfaced, there existed no established process for investigating allegations of judicial misconduct. Accordingly, a public inquiry was struck under the federal Inquiries Act with a retired judge named as inquiry commissioner. The commissioner investigated the allegations and produced a report that was then placed before Parliament. The report, however, was widely seen to be flawed, and a special sub-committee of parliamentarians that included members of both the House of Commons and Senate was struck to hold hearings and make further inquiries.
Many days of hearings were held, during which evidence was heard, including testimony from Justice Landreville himself. The hearings had to be frequently interrupted for other parliamentary business, and many members of the ad hoc committee could not attend all of the hearings. In the end, Justice Landreville resigned after the Committee’s report called for his removal, but the inquiries, both under the Inquiries Act and by Parliament, were widely seen to have been inefficient and haphazard, and to have underscored the inherent difficulties of having Parliament itself investigate allegations of judicial misconduct.Footnote 4
It was largely in response to the experience of the Landreville inquiry that the Canadian Judicial Council (CJC) was established by amendments to the Judges Act in 1971.Footnote 5 Pursuant to the Act, the CJC was composed of all of Canada’s federally-appointed chief and associate chief justices (that is to say the chief and associate chief justices of all the federal and provincial/territorial superior courts),Footnote 6 and it was charged with investigating all allegations of misconduct made against judges of Canada’s superior courts at arm’s length from the government. In fulfilling this mandate, the CJC was effectively given two principal tasks:
- investigating allegations of misconduct to determine their seriousness and whether they are well-founded; and
- for those allegations found serious enough to warrant a full inquiry, providing the Minister of Justice with a report that contains a thorough account of the inquiry, and a recommendation on whether the judge in question should be removed from office.
Crucially, for those allegations of misconduct deemed so serious that they may warrant removal, the end result of the judicial discipline process is a report and recommendation to the Minister. The decision whether to ask Parliament to remove the judge from office is ultimately for the Minister to make. The report to the Minister, containing a full account of the investigation and inquiry into the judge’s conduct, is therefore critical because it is on the basis of this report that the Minister will arrive at her decision. Otherwise, Parliament itself may be compelled to make further inquiries, which would run contrary to the impetus for giving the CJC responsibility for investigating allegations of judicial misconduct in the wake of the Landreville inquiry.
The Judges Act specifies the criteria for removing a judge from office (s. 65(2)), and sets a few requirements, such as the obligation to produce a report to the Minister at the end of any inquiry (s. 65(1)), but it prescribes very little by way of procedure. With a view to ensuring a fair and effective investigation and inquiry process, the CJC has therefore established complaints procedures and a handbook governing the process before an inquiry committee, both issued as a policy, and the Investigations and Inquiries By-laws, issued as a regulation under para. 61(3)(c) of the Judges Act. These policy documents and By-laws today establish most of the parameters of the federal judicial discipline process.Footnote 7
As the CJC noted in its 2014 discussion paper, the process has evolved over the years, but the key principles that underpin it, those that it must safeguard and advance in order to maintain public confidence in the process and, by extension, in the judiciary and judicial system, remain unchanged. These are:
- Judicial accountability:
- Judges must be held accountable for their conduct; misconduct must be addressed, including by removal from office where appropriate. Judicial accountability also militates strongly in favour of ensuring that the public interest is well represented in any judicial discipline process.
- Judicial independence:
- This constitutional principle holds that judges must remain independent, both in fact and public perception, to adjudicate the matters before them without undue influence from anyone with an interest in the outcome of their decisions, including the other branches of government. The courts have been clear that judicial independence exists for the benefit of the judged, not the judges. It is therefore to be assessed from the perspective of the reasonable observer and in light of the public interests it is meant to serve.Footnote 8
It is important that judges feel free to adjudicate the matters before them as they deem fair, without undue fear that a complaint will be made against them and that they may be removed from office or obliged to resign as a result. Judicial independence is also furthered by having judicial discipline processes operate at arm’s length from the executive and be led (though not exclusively) by judges.Footnote 9 However, as the CJC cautioned in its 2014 discussion paper, judicial independence cannot operate so as to shield the conduct of judges from effective scrutiny.Footnote 10
- Ensuring that a judicial discipline process is fair to complainants and to judges who are subject to it is important for two principal reasons. It is essential to maintaining confidence in the process on the part of complainants, judges, and members of the general public alike, and procedural fairness is a legal requirement to which all public decision-making processes must conform.Footnote 11
- This key consideration has two dimensions: time and cost. A judicial discipline process must arrive at results in a reasonable time and at a reasonable cost to the public purse. Efficiency may at times be in tension with fairness because procedural safeguards meant to ensure fairness can often lengthen a process and increase its cost.
- Transparency and accessibility:
- A judicial discipline process must be clearly set out so that any member of the public can understand how it operates, and, by extension, information about the process must be relatively easy to access for any reasonably well-informed member of the public.
2.2 The Current Process
The current process can be divided into five stages:
- initial review and investigation;
- the inquiry committee;
- the Council of the Whole; and
- consideration by the Minister of Justice, with the possibility of a vote by Parliament.
For the purposes of this overview, the CJC’s complaints procedures, which govern the first stage and part of the second, will be abbreviated as “CP.” The CJC’s Inquiry and Investigations By-laws, which govern most of the remainder of the CJC’s process, will be abbreviated as “BL”. The handbook of practice and procedure before inquiry committees will simply be referred to as “the Handbook”.
Anyone may make a complaint (though pursuant to s. 63(1) of the Judges Act, the Minister of Justice or the Attorney General of a province may request that an inquiry committee be constituted to inquire into the conduct of a particular judge).Footnote 12 Throughout the process, the complainant is kept up to date on the progress of his or her complaint (CP para. 12), but generally takes no direct part in the complaint process.Footnote 13
A complaint will be kept confidential unless the complainant decides to make it public.Footnote 14 The Executive Director of the CJC, who is responsible for the administrative aspects of the process, is responsible for screening out complaints that fall outside the CJC’s jurisdiction, as well as complaints that “that are trivial, vexatious, made for an improper purpose, are manifestly without substance or constitute an abuse of the complaint process” (CP para. 5).
Initial review and investigation
Complaints that are not screened out are referred by the Executive Director to the Chair or a Vice-Chair (hereinafter simply “the Chair”) of the CJC’s Judicial Conduct Committee (CP para. 4.3). The Chair will conduct an initial review by:
- seeking additional information from the complainant;
- seeking the judge’s comments and those of their chief justice; and/or
- dismissing the matter if they consider that it does not warrant further consideration. (CP para. 6)
Following receipt of comments, the Chair may dismiss the matter, or:
- hold the matter in abeyance pending the pursuit of remedial measures;
- gather further information by retaining an investigator; or
- refer the matter to a review panel, but only if the Chair considers that it may be serious enough to warrant the judge’s removal. (CP paras. 8-9, BL s. 2(1)).
Remedial measures are agreed upon in consultation with the judge and his or her chief justice, and may include anything from the judge issuing an apology to pursuing counseling (CP para. 8). In dismissing a matter, the Chair can also provide the judge with an assessment of their conduct and express concerns (ibid.).
If the Chair decides that the matter should be referred to a review panel because it may be serious enough to warrant the judge’s removal, the Chair must issue reasons for so deciding, forward to the panel any relevant information gathered, and provide the judge with an opportunity to make submissions to the panel (CP para. 8.5).
Review panels are composed of a puisne judge,Footnote 15 a lay member (who is neither a lawyer nor a judge), and three members of the CJC (BL s. 2(3)). All are named by the Conduct Committee’s senior member (the most senior judge on the committee who has not participated in considering the matter). A review panel’s sole duty is to determine whether the matter may be serious enough to warrant the judge’s removal from office. If it so finds, it will decide that an inquiry committee should be constituted (BL s. 2(4)), in which case it must issue reasons and a statement of issues for the inquiry committee to consider (BL s. 2(7)).Footnote 16 If not, the matter is remitted back to the Chair who must determine how best to resolve it (BL s. 2(5)).
Inquiry committee proceedings
An inquiry committee must be composed of an uneven number of members (generally three or five), the majority of whom shall be CJC members (named by the senior member of the Conduct Committee). However, it may not include any CJC members who have participated in any of the prior stages of the process with respect to the complaint in question (BL s. 3).
The minority of an inquiry committee’s membership is usually composed of lawyers with at least 10 years’ standing at the bar who are named by the Minister of Justice (Judges Act s. 63(3)). The Minister may, but is not obligated to, designate lawyers to sit on an inquiry committee. If none are designated, the CJC may constitute a committee of CJC members only (ibid.; Handbook para. 1.1).
An inquiry committee is given the powers of a superior court (Judges Act s. 63(4)). It may consider any relevant complaint or allegation pertaining to the judge that is brought to its attention, though it must consider the reasons and statement of issues of the review panel that constituted it (BL s. 5(1)), and it will generally determine the scope of its inquiry (set out in a notice of allegations to the judge) by reference to these documents and the original complaint (Handbook paras. 3.5-3.6). The CJC Executive Director is responsible for forwarding all relevant documents produced during previous stages of the process to the inquiry committee (Handbook para. 1.2). Committee hearings may be held behind closed doors but are presumptively public, and they may be required to be public by the Minister (Handbook para. 2.3; BL s. 6; Judges Act s. 63(6)).
An inquiry committee is expressly charged with conducting its inquiry in accordance with the principles of procedural fairness (BL s. 7), and the Handbook sets out specific guidelines aimed at ensuring that procedural fairness is observed.
Once the inquiry committee is in place, it may retain anyone necessary for the conduct of the inquiry, including inquiry counsel (Handbook paras. 3.1-3.3; BL s. 4). The judge who is the subject of the inquiry has a right to be heard and is also represented by their own counsel (Judges Act s. 64).Footnote 17
Subsection 65(2) of the Judges Act sets out four grounds for removing a judge from office: “(a) age or infirmity, (b) having been guilty of misconduct, (c) having failed in the due execution of that [judicial] office, or (d) having been placed, by his or her conduct or otherwise, in a position incompatible with the due execution of that office…”. CJC inquiry committees and Councils of the Whole have taken the approach that if the judge’s conduct is determined to fall within any of (a) to (d), the following question, usually called the “Marshall test”, should be posed:
Is the conduct alleged so manifestly and profoundly destructive of the concept of impartiality, integrity and independence of the judicial role, that public confidence would be sufficiently undermined to render the judge incapable of executing the judicial office?Footnote 18
Only if the answer to this question is yes will a recommendation for a judge’s removal from office follow.
The Council of the Whole
Once all hearings are completed, the inquiry committee reports back to “the Council of the Whole” (BL s. 8; Handbook para. 5.2). If the hearing was conducted in public, the report is to be made available to the public (BL s. 8).The Council of the Whole must include at least 17 CJC members and may not include any members who sat on the review panel or the inquiry committee or otherwise took part in the prior stages of the process (BL ss. 10-11). The Council of the Whole considers the inquiry committee’s report (which must include a recommendation on whether or not to remove the judge), as well as any written submissions on the report that the judge may wish to make (BL s. 11).
If Council of the Whole finds that the judge’s conduct falls within the scope of the criteria for removal set out in s. 65(2) of the Judges Act, it will apply the Marshall test to determine whether a recommendation for the judge’s removal from office should be made to the Minister of Justice.
The Minister of Justice and Parliament
Once the Council forwards its recommendation on removal along with its report on the inquiry to the Minister (as required by s. 65(1) of the Judges Act), the Minister must decide whether to ask Parliament to proceed with a motion for removal. The Minister is not bound by the CJC’s recommendation; the option to seek a judge’s removal by Parliament exists whether or not the CJC recommends that the judge be removed.
2.3 The CJC’s 2015 Process Changes
The CJC has from time to time made changes to the discipline process by revising its complaints procedures and By-laws. The current procedures and By-laws date from July 29, 2015. The Handbook is new and dated September 17, 2015. The process as described above takes these recent changes into account, but the following three changes are particularly significant and worth highlighting. Their implications for the process are discussed in more detail in the next part of this paper.
(1) Changes to the roles of the Chair of the Conduct Committee and review panels: This change eliminated some duplication during the investigative stage of the process by strengthening the role of the Chair (or a Vice-Chair) of the Conduct Committee and limiting the role of review panels. It also improved the transparency of the process by requiring both the Chair and review panel to explain their decisions.
Prior to July 2015, both the Conduct Committee’s Chair and the review panel could, and often would, retain an investigator to establish the facts of a complaint. The Chair was not required to issue reasons for referring a complaint to a review panel, and the review panel was not required to issue reasons for constituting an inquiry committee.
Since July 2015, the role of retaining an investigator to establish the facts of a complaint is reserved to the Conduct Committee Chair. Review panels only determine whether an inquiry committee should be constituted. However, the Chair is now required to issue reasons for referring a complaint to a review panel, and the review panel is required to issue reasons for deciding that an inquiry committee should be constituted, as well as a statement of issues for that inquiry committee to consider. These new requirements serve two important functions: they add an important measure of transparency to the investigative stages of the process, and they provide an inquiry committee with guidance on the scope of its inquiry.
(2) Elimination of the role of independent counsel and promulgation of the Handbook: Until July 2015, inquiries involved two counsel in addition to counsel for the judge: counsel to the inquiry committee (also called committee counsel) and a presenting counsel called independent counsel. Committee counsel was a lawyer retained by the committee to assist it in fulfilling its mandate, providing it with advice on evidentiary and other legal questions and assisting in drafting the committee’s final report. The independent counsel, meanwhile, was appointed by the Chair of the Conduct Committee, and was charged by the CJC’s By-laws with presenting all relevant evidence, both for and against the judge, to the inquiry committee, and with doing so impartially and in accordance with the public interest.Footnote 19
In its 2015 process changes, the CJC did away with the role of independent counsel, and further opted to omit any mention of either presenting counsel or committee counsel in its revised By-laws. Section 4 of the By-laws now simply provides: “The Inquiry Committee may engage legal counsel and other persons to provide advice and to assist in the conduct of the inquiry.” This new status quo effectively makes the two-counsel model entirely optional. An inquiry committee may retain a lawyer to present relevant evidence and another to advise it, but it need not do so.
The Handbook sets out the procedures to be followed before an inquiry committee, which may be expected to bring some consistency and predictability to how committee hearings will unfold, and help ensure procedural fairness. Parties are expected to adhere to it unless directed otherwise by an inquiry committee (para. 2.1).
(3) Composition of review panels: Review panels had previously been composed exclusively of judges. As of July 2015, they must be composed of three CJC members, one puisne judge, and one lay person (who is neither a judge nor a lawyer).Footnote 20
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