Judging the judges: CBA comments on judicial discipline

  • September 23, 2016

They call it taking out the trash – when news is released after business hours on a Friday or on the last day before government takes a holiday of some sort. That’s when the government released its consultation paper on judicial discipline – the last working day in June, at 4:30, on Twitter, with an Aug. 31 deadline for responses.

Nonetheless, the CBA brought together a team of lawyers with experience in the judicial discipline process and other professional discipline matters, including the chair of the Ethics Committee, to comment on the proposals. Their letter builds on a 2014 submission to the Canadian Judicial Council on the topic.

The CBA framed its response within the dual requirements of protecting the independence of the judiciary and ensuring that justice is not only done, but seen to be done.

“Self-governing professions are vulnerable to public suspicion that their governing bodies act in the interest of members of the profession rather than in the public interest,” the submission says.

The submission makes a total of 16 recommendations, including:

  • That lay people should be involved throughout all stages of the inquiry process in order to ensure transparency and accountability;
  • That there should be more involvement of puisne judges in the inquiry process;
  • That the role of independent counsel should be reinstated in accordance with prior CJC bylaws and that the role of Committee Counsel, if it must be maintained, should be limited to a primarily administrative function. The purpose of this is to maintain the inquisitorial, as opposed to adversarial, nature of the inquiry.

The submission also reiterates a 2014 call for the Canadian Judicial Council to develop a code of procedure for inquiry committees. That submission acknowledged that doing so will take time, and inquiries should go ahead in the meantime, but the current submission says the time has come to make progress on it. The CBA also now recommends that the Canadian Judicial Council develop a prescriptive code of conduct for judges to replace its current Ethical Principles.

Noting that provincial and territorial bodies have the authority to levy a wide range of penalties while the Canadian Judicial Council has only one real option – removing judges from the bench – the submission also recommends that the CJC have access to a wider range of non-consensual measures and disciplinary sanctions short of removal.

“Providing for only one remedy – the most drastic of all possible remedies – may have the effect of either (1) making Inquiry Committees reluctant to find misconduct, resulting in judges who should be disciplined not being disciplined, or (2) subjecting judges who are guilty of misconduct to the ultimate penalty of removal from office though the misconduct warrants a lesser sanction.”

When it comes to the kind of complaints that should go before an inquiry committee, the submission recommends that only those complaints that have already been considered by the CJC go forward.

Again in the interests of transparency, the CBA recommends that the Canadian Judicial Council increase the sample of complaints that it summarizes in its annual report, and provide more details – short of identifying the judges in question – about the nature of the complaints dismissed and the reasons why they were dismissed. It also recommends that there be a formal policy for disclosing information about cases once they reach the inquiry stage.

“In developing these recommendations, the CBA has considered what reforms would enhance the public interest in judicial accountability while protecting judicial independence and balancing those interests with the risks to the individual judge’s privacy and reputation,” the submission says. “We have commented generally on the balance to be achieved between legislative and policy instruments in implementing these reforms.”

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