Thursday, March 03, 2016

Has the Canadian Judicial Council finally seen the light of day?

Good Day Readers:

Mr. Sabourin's comments are likely tempered by the taxpayer fiasco that was the Douglas Inquiry plus more than 200 written submissions the CJC received after asking for the public's help in lifting it out of the dark ages.
Did it finally "dawn" on Council Members, "Jezus, this is not a very efficient way of doing business?"

Several of Young Norman's suggestions makes a lot of sense but will politicians have the balls to pass the necessary legislation? They haven't up to now.

CyberSmokeBlog does not believe everyone is entitled to their opinion only if it's an informed opinion. If you have a comment please contact CSB at pieuk@shaw.ca. But remember no Donald Trump type commentary will be accepted.
"You a-.... my earpiece just fell out I didn't hear the question so .... off!"

Sincerely,
Clare L. Pieuk
Judicial Council looks for curbs on challenges and other reforms

Ways sought to speed up discipline process when it comes to Judges

By Cristin Schmitz
March 4, 2016 issue
Executive Director of The Canadian Judicial Council Norman Sabourin seen above in his Ottawa office is looking at a wide range of ideas to make the panel's work in meting out discipline for Judges more efficient and economical. (Roy Grogan for The Lawyer's Weekly)

The Canadian Judicial Council wants Ottawa to clamp down on public funding for interlocutory court challenges brought by federal judges fighting misconduct allegations, says its executive director and senior general counsel Norman Sabourin.

In an exclusive interview, Sabourin said the council of 39 chief and associate justices also wants to explore with the federal government other Judges Act amendments and administrative reforms that could make the sometimes glacial federal judicial discipline process more efficient, speedy and economical.

Worth examining are the feasibility and merits of some measures used in other jurisdictions — for example, requiring judges to reimburse their publicly funded legal defence fees to the government if misconduct allegations are made out, he suggested. Reducing judges’ pay if they are off work for years due to discipline proceedings, and possibly imposing financial penalties if they are ultimately found to have engaged in misconduct are among many other possibilities that could be discussed, he said.

“Of course judges have every right to defend themselves, and I think it’s appropriate, and I think the public would expect it’s appropriate, that public funds can be used for [judges] to defend themselves,” Sabourin said. “But in all the [judicial conduct] regimes that I’m aware of, [whether] publicly funded or privately funded, there are very clear parameters about what can be funded, and how much can be funded, and those parameters seem to be, at most, sketchy at the federal level,” he explained.

“We don’t know the full parameters of what is done. What we do know is that we face judges who, through their lawyers, are challenging everything that we do here at the council. And we know that these matters are publicly funded,” he said. “And the CJC has expressed concern about…judges having the ability to essentially challenge not only the allegations against them, but the very process of review of the allegations, and to do so through many repeated challenges before the courts. I think it’s a legitimate question to ask whether that should be publicly funded, and…I don’t think, in the past, judges would have necessarily launched the legal challenges they did, while not sitting for three, four or five years [with pay], if they had to pay for [the litigation] themselves.”

Recent CJC formal inquiries into the conduct of former senior Manitoba judge Lori Douglas, ex-Ontario Superior Court Justice Paul Cosgrove (both judges eventually resigned), and Quebec Superior Court Justice Michel Girouard (ongoing) have together expended millions in public funds on the leading senior litigators who represented the judges, the inquiry committees and the council itself. Each inquiry got bogged down and delayed by interlocutory court challenges.

“It’s not a big secret that a lot of money gets paid for legal fees,” Sabourin remarked. “And a key question is whether it should go the way it does. We think at the council that there should be clear parameters. It’s not something that requires legislative change. It’s something we hope the government will act upon.”

He said the disciplinary body for Canada’s 1,138 federally appointed judges continues to streamline the judicial conduct regime, for example recently empowering the executive director to screen out clearly unmeritorious matters, rather than requiring members of the judicial conduct committee to review all complaints. The council also changed its bylaws to eliminate the role of “independent counsel” who presents the case against the judge to the inquiry. The reformed inquisitorial process puts the inquiry committee itself firmly in charge, thus eliminating a repeat of clashes between the inquiry committee and independent counsel, as occurred in the Douglas case. “We think that this will really improve efficiency,” Sabourin said. “I would expect that at the end of the day it will be a less costly and more timely process.”

Further improvements await legislative amendments, something both the Liberal government and its predecessor indicated they were receptive to, Sabourin said. “The [justice] minister has indicated she is very interested in the council’s ideas on legislative reform.”

Key questions the council wants to talk about with the government include when and how there can be judicial review of CJC decisions, including interlocutory review, and what powers the inquiry committee and council have. “I think there is a vacuum in the Judges Act,” Sabourin explained. “At the very minimum there is a need to clarify those rules. I don’t think the council has made any final decision, and they’re open to engaging in consultation with the government…but I would think a lot of people would agree that you should normally wait for proceedings before the council to be over, before you have an ability to run to the courts. And if you’re going to run to the courts, a key question, I think, would be which court?”

Currently, appeals of decisions by the CJC, whether interlocutory or final, go for judicial review by a single judge of the Federal Court. One “out-of-the-box” idea to explore, given the unique composition of the council, and the quasi-constitutional nature of a council decision to recommend a judge’s removal, would be giving the judge in question a direct appeal to the Supreme Court of Canada (with leave), Sabourin suggested. He called it “kind of ironic” that “a single judge of the Federal Court could issue an order overturning 24 chief justices who have decided on a judicial conduct matter.”

Another idea for discussion would be making the inquiry committee itself the arbiter of whether to recommend a judge’s removal, with the full council sitting as the final appeal body. “I’m just exploring ideas here that I think deserve to be explored,” he said. “Fundamentally what the council would like to do is continue exploring with the government, so that in due course the minister can…in her best judgment, propose to Parliament amendments to the legislation.”

Expanding the remedial tools available to the council — which strictly speaking only has a clear mandate to recommend removal — “is not an easy area because of the constitutional security of tenure of judges,” he noted. Yet in some countries which constitutionally protect their judges’ job security and independence, there is more remedial scope, he said. “In the U.K., if a judge is charged with a criminal offence, they’re automatically suspended.”

There is also an unresolved debate in Canada whether chief justices are empowered to decide not to assign cases to (i.e. effectively administratively suspend) judges facing misconduct allegations. Most recently, Federal Court Justice Robin Camp, who faces a formal CJC inquiry into comments he made while presiding over a sex assault trial, was pulled from his duties so he could devote all his time to re-educating himself, at his own expense.

“There are judges in the past who have argued that a chief justice has no authority not to assign cases,” Sabourin acknowledged. “Is there any authority to suspend a judge unless you amend the Constitution? I don’t know.’’

Ultimately, changes to the Judges Act are Parliament’s decision, he said. “We’ve begun a good dialogue with the minister [of justice] and I think pursuing that dialogue is only going to result in better information to allow the government to come to a view about potential amendments.”

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