Friday, August 22, 2014

"Spot" versus the Canadian Judicial Council!

Good Day Readers:

"Spot" the dog is a proxy for the great unwashed Canadian masses the legal establishment likes to euphemistically refer to as "laypeople." The Canadian Judicial Council for years has turned a deaf ear to public criticism it suffers from a severe conflict of interest judges judging judges with no citizen oversight. Because the Douglas Inquiry has turned into such a colossal ....-up for taxpayers, Fortress CJC was finally moved to canvass the public for ideas. To this day the Inquiry is of lawyers, by lawyers and for lawyers.

The article below discusses the Canadian Bar Association's recommendations which Toronto lawyer Rocco Galati seems to suggest if implemented will have the force of the great unwashed masses peeing in the ocean.
Clare L. Pieuk
Push on to involve the public in federal judge oversight role

Canadian Bar Association says lay panel members enhance perceived credibility

Cristin Schmitz
August 22, 2014

"We felt that having community members participating in the process as long over due." ..... Gavin MacKenzie

"It's a dishonest, disgusting whitewash. It's judges protecting judges protecting judges." ..... Rocco Galati

With federal judicial discipline reforms anticipated this fall, the Canadian Bar Association (CBA) is urging the Canadian Judicial Council (CJC) to involve the public in overseeing Canada's 1,120 federally appointed judges.

The 39 member Council of Chief Justices - which operates behind closed doors except when considering formal inquiries - investigates misconduct complaints and metes out discipline to the judges of the nation's superior trial courts of appeal and Supreme Court of Canada.

Unlike the Provincial Judicial Councils, that regulate provincially appointed judges across the country, the Council chaired by Chief Justice Beverley McLachlin does not include the public in its membership nor are lay people involved in overseeing judicial conduct.

In a submission last month to the CJC, the CBA says the federal judicial discipline process would be more credible if the public took part.

"We felt that having community members participate in the process was long overdue" explains Gavin MacKenzie of Toronto's Davis who chaired the group that wrote the CBA's submission.

The 37,500 member organization urges the CJC to open its doors to lay participation - both when the Council is reviewing misconduct complaints at an early stage and when it strikes formal inquiry committees. Inquiry committee lawyers and a majority of Chief Justices.

The Council is now engaged in three separate public inquiries which are investigating whether (before they become judges): a senior Manitoba judge improperly failed to disclose in her application for the bench that there are sexual photos of her on the internet; a Quebec Superior Court judge engaged in illegal municipal campaign financing; another Quebec Superior Court judge tried to buy cocaine.

MacKenzie who is an expert on professional conduct, says lay people can bring a valuable non-insider perspective to discipline matters. "It's been 40 years since we first had lay benchers at the Law Society of Upper Canada (in Ontario), for example, who are voting members of Convocation, and who sit on discipline panels, and who are involved in the complaints process, among other functions at the law society," he says. "They're not just window dressing."

Moreover, "every self-governing profession ... is vulnerable to the suggestion that they protect members of their profession at the expense of the public, rather than in the public interest," he points out. The involvement of community members - who are neither lawyers nor judges - would tend to be a factor that would enhance confidence among the public in the judicial disciplinary process."

The CBA's 16 recommendatons address a raft of substantive and procedural issues explored by a CJC background paper published last March as part of the Council's public consultation on possible reforms.

At the CJC's semi-annual meeting in Toronto next month, the Council is expected to consider proposals for change that its professional conduct committee is presently devising.

One issue the Council is grappling with is the lengthy delays (and spiraling legal costs) caused by the growing number of interlocutory judicial reviews launched by the judges at the centre of formal inquiries.

The CBA doesn't endorse a suggestion in the CJC's background paper that interim judicial review of inquiry committee decisions might be replaced by a an internal CJC review mechanism. The CBA acknowledges an internal review procedure might be less complicated, expensive and time-consuming than judicial review, but says it might not produce better results for the complainant or judge and, in any event, the interim procedure itself could itself be judicially reviewed.

The CBA also recommends that the CJC be empowered to impose non-consensual remedial and disciplinary sanctions on judges, short of removal from office. Firing a judge is the only remedy currently authorized by the Judges Act but is almost never imposed. By contrast, provincial and territorial judicial councils are able to issue warnings and reprimands, suspend judges with or without pay for any period, and order such measures as apologizing to a complainant, mandatory education, or undergoing treatment as a condition to preside.

MacKenzie says the CBA also believes the Council should begin work on replacing the CJC's 1998 advisory Ethical Principles for Judges - which are a general framework of values and considerations - with a set of rules and considerations - with a rules-based code of conduct that specifies judicial do's and don'ts.

"The history of rules of conduct in professions has been that we've evolved ... from very general statements of principles, largely ethical principles, that are difficult to apply in practice to a much more prescriptive and specific code that tells practitioners precisely how they should be addressing professional conduct issues," MacKenzie says. "Potentially, in a certain kind of case, it would make it much easier for an inquiry committee to to its job."

However, MacKenzie acknowledges that when devising a code of conduct was considered by the CJC in the past, many judges objected. "A number of judges, I understand, feel that having mandatory rules of conduct for judges would compromise judicial independence."

Toronto litigator Rocco Galati, counsel for the complainant who triggered the ongoing Inquiry into Manitoba Court of Queen's Bench (Family Division) Associate Chief Justice Lori Douglas says tinkering with the current "corrupt" federal judicial discipline process is useless. "It's a dishonest, disgusting whitewash,"he charges. "It's judges protecting judges protecting judges."

Galati contends judicial conduct should instead be regulated by an independent non-judicial body. "The judges wold have the last say, anyway, on judicial review from that body," he points out.


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