Reviewing judicial misconduct

  • April 18, 2023

The Judicial Issues Subcommittee of the Canadian Bar Association, in a letter to Justice Minister David Lametti and in a similar letter to the Standing Senate Committee on Legal and Constitutional Affairs about Bill C-9, reaffirms the importance of preserving judicial independence and public confidence in the judiciary. These arguments were reiterated in the Senate on March 29 by CBA President Steeves Bujold and Benjamin Piper of the CBA Judicial Issues Subcommittee.

Bill C-9, An Act to amend the Judges Act, makes important changes to the judicial conduct review process by establishing a new process for reviewing allegations of misconduct.

The CBA Subcommittee believes it strikes a fair balance between procedural fairness and public confidence in the integrity of the system. However, the process should include an intermediate level of appeal from a final decision of the Canadian Judicial Council to the Federal Court of Appeal. As it stands, the only avenue of appeal from a CJC decision is to the Supreme Court of Canada, or SCC, with leave from that Court. The letters cite two compelling reasons to create an appeal by right to the Federal Court of Appeal:

“First, as a matter of natural justice, it ensures a right of external judicial oversight to the discipline process,” the submissions read. Obtaining leave to appeal to the SCC is not an easy option, as that Court hears cases that raise issues of national importance. Whether or not the CJC may have erred in an individual case of potential judicial misconduct may not reach that threshold.

“Second, the judiciary is such a vital part of Canada’s governance that the public must be assured that judicial discipline is carried out in an open and accountable manner, with clear avenues of appeal and redress,” the letters say. As a matter of course, the CJC process is not public, which can in some cases lead the public to perceive it as lacking transparency. A right to appeal to a court below the SCC would shed light on the process within the CJC and foster public confidence in the system.

The CBA Subcommittee respects the work of the CJC but notes that “just as no court is perfect, no disciplinary system or adjudicator is beyond error.” It is crucial for judges who may face disciplinary action for their conduct to have access to an appeal process in cases where the CJC may have erred. “In our society,” the letters explain, “convicted persons, plaintiffs and defendants, and those whose livelihoods, property or futures are at stake, must be able to seek curial review of decisions affecting them in a meaningful way.”

There is another benefit to a wider right of appeal in that the SCC does not give reasons for granting or refusing leave to appeal. By contrast, a right to appeal to the Federal Court of Appeal is likely to produce detailed reasons and conclusions, “thereby enhancing the CJC’s credibility through the transparent review of its process and decision-making,” the Subcommittee notes, adding that “knowing why a decision is made, particularly when it involves discipline against a judge, is vital to maintaining the credibility of the court in question and preserving the public’s respect for the independence of the judiciary.”