Judicial conduct: Reforming the complaints process
On December 16, 2021, the Government of Canada reintroduced in the House of Commons proposed changes to the Judges Act to restructure the process for dealing with allegations of misconduct against federally appointed judges. These legislative changes were first introduced in the Senate on May 25, 2021.
The proposed changes intend to increase Canadians’ confidence in the judicial system by ensuring greater accountability, transparency and cost-efficiency in the process for handling complaints.
Under the proposed new process, the Canadian Judicial Council (CJC) would continue to preside over the judicial complaints process. The new process would see all complaints potentially raising concerns about a judge’s conduct considered by a three-person review panel. That panel would decide whether to investigate the complaint themselves (less serious allegations) or refer the complaint to a separate five-person hearing panel (serious allegations that could lead to removal from office).
The three-person panel reviewing the less serious complaints would have the authority to impose sanctions on a judge (e.g., a public apology or continuing education). This would be a new component of the complaints process and would increase judges’ accountability for less serious instances of misconduct.
The five-person hearing panel would hold a public hearing into the complaint and decide whether to recommend the judge’s removal from office to the Minister of Justice. The judge would have an opportunity to appeal the hearing panel’s decision to an appeal panel composed of three CJC members and two judges. A final appeal could be launched to the Supreme Court of Canada, but only if that Court agrees to hear the appeal. This is different from the current process, which allows for judicial review through the federal courts, which has resulted in some lengthy and costly processes.
The proposed process would include members of the general public on the three-person review panels, thereby giving them a role in determining how to sanction instances of misconduct not serious enough to warrant removal from office, and on five-person hearing panels, thereby giving them a role in deciding whether a judge’s removal from office should be recommended to the Minister of Justice.
As part of the restructured process, the CJC would report annually on the number of complaints received and how they were resolved.
The Bill would also introduce new financial control mechanisms to ensure better accountability for process costs.
Role of the Canadian Judicial Council
The Canadian Judicial Council (CJC) consists of the chief justices and associate chief justices of all of the federal courts and provincial/territorial superior courts. Its objectives, set out in the Judges Act, are to promote efficiency, consistency, and quality of judicial service in these courts. One of the Council’s responsibilities is to investigate complaints of misconduct made against federally appointed judges. The CJC has also developed a set of Ethical Principles for Judges. The purpose of these principles is to help judges ensure that they maintain their independence, integrity, and impartiality.
The removal processes for provincial/territorial judges vary from jurisdiction to jurisdiction, but are all designed to protect judicial independence and to operate independently from the other branches of government.
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