Tuesday, December 30, 2014

The Canadian Judicial Council versus The Press Release

Good Day Readers:

Much has been written about the CJC's broken business model thanks in large part to the Douglas Inquiry's unmitigated disaster. Being on The Council's electronic mailing list, CyberSmokeBlog began to observe there appeared to be no rhyme nor reason on who or when they were issued.

As fate would have it, a few weeks ago CSB received a draft of a complaint that a reader was planning to file along with their permission to publish it. In discussion with the CJC at the time we were advised many, many Press Releases are not issued because the complaint is not challenging a judge's conduct rather their decision in a case two completely different kettles of fish. Fine thus far.

However, we have indeed received a copy of the filed complaint and permission from its author to reproduce it. It was registered December 18 of this year and is unique in that rather than focusing on a judge(s) alleged misconduct it's built upon how two very senior Canadian Judicial Council Members previously handled two of the complaints files.

So now what? CSB has contacted the CJC to ask what it's options are within that organization's guidelines if it does not issue a Press Release about this complaint.

Stay tuned.

Clare L. Pieuk
Complaints against federal judges usually handled in secret

The Canadian Judicial Council, which investigates about 180 complaints each year, is pondering how to make the process more transparent. Critics say the suggestions don't go far enough.

By Olivia Carville/Staff Reporter and Rachel Mendleson/News Reporter
Monday, December 29, 2014

An inquiry into the conduct of Manitoba Associate Chief Justice Lori Douglas, left, was abandoned after she announced she would seek early retirement. Superior Court of Quebec Justice Robert Flahill, centre, was sentenced to three years in jail for money laundering prompting an inquiry. He was recommended for removal and resigned. Ontario Justice Paul Cosgrove, right, was facing removal over his misconduct during a murder trial, which the committee found to be "pervasive in boty scope and duration." He resigned two days later.

More than 99 per cent of complaints against federal judges are dealt with in secret, despite the fact they preside over the highest levels of government, including matters of national security and human rights.

The Canadian Judicial Council, which investigates complaints against the country’s 1,200 federally appointed judges, has launched a public consultation to make its complaints process more transparent. But some critics say the changes under consideration do not go far enough.

The council itself is made up exclusively of judges. Short of recommending Parliament remove a judge from office, which the council has done only three times since it was created in 1971, it has no disciplinary powers.

Judges facing complaints get free legal representation at taxpayers’ expense and can escape the scrutiny of a public inquiry by resigning or retiring instead — an option all those targeted for a public inquiry so far have exercised.

“This is judges judging judges. It’s incestuous,” said Toronto constitutional lawyer Rocco Galati, who described the council as “a whitewash institution.”

“I have no faith in the CJC. It is not there to discipline judges, it is there to protect judges,” he said.

Since the early 1990s, about 180 of the average 600 complaints the council receives annually are deemed worthy of a review screening process, said the council’s executive director, Norman Sabourin. These internal investigations can take anywhere between three to six months.

Of the roughly 3,600 complaints the council has probed in the past 20 years, only 11 — fewer than 0.5 per cent — have resulted in a public inquiry. (The first public inquiry into a complaint against a federal judge was held in 1990.)

MORE: Public hearings against federal judges since 1971

Unless a complaint results in an inquiry, the council keeps secret the judge’s name, province, details of the allegations and even results of the investigation.

The only public insight into the bulk of the investigations is a brief summary of a handful of complaints disclosed in the council’s annual report.

Some examples:
  • A judge who “waved his hand” at a litigant who spoke English as a second language and denied him his right to understand what was happening in court. 
  • A judge who was sent to a gender bias training course after making insensitive comments during a sexual assault case. 
  • A judge who made comments that contributed to the ongoing “degrading debate” surrounding aboriginal people in Canada. 
This is less information, in some respects, than is shared about complaints against Ontario’s provincial judges.

In Ontario, the summaries of all investigations are published, but complainants are banned from speaking out publicly unless a hearing is called.

(The Star is currently challenging the constitutionality of the policy in Ontario, where the judicial council has imposed a “general order” sealing all complaints against judges that do not result in a public hearing.)

At the federal level, complainants are free to publicly disclose the details of their complaints, and the council will then respond in public.

Sabourin, who has headed the federal judicial council for the past 10 years, conceded that “a lot of improvements could be made.”

The council’s public consultation was launched in March and is expected to wrap up by early 2015, he said.

The measures under consideration include publicizing every investigation and changing legislation to allow the council to include representation from ordinary people.

At the moment, the only involvement from non-judges occurs when a public inquiry is called, and the federal justice minister can appoint a lawyer to sit on the inquiry panel. (In Ontario, self-regulating authorities that probe complaints against judges, lawyers and doctors include lay people.)

However, Galati has labelled the council’s bid for further transparency “smoke and mirrors.”

He is calling for an independent committee to take over the council, claiming that numerous serious complaints are not thoroughly probed.

“(Judges) are in a structurally conflicted position. They are not impartial, and the fact that they insist on keeping it all secret just proves that are trying to protect each other,” Galati said.

“This has got no place in a constitutional democracy.”

Toronto lawyer Gavin MacKenzie chaired a working group at the Canadian Bar Association (CBA) that recommended ways to improve the complaints process, including increasing the number of investigations summarized in the annual report and adding laypeople to the council.

He believes the council’s disciplinary powers should be expanded.

“There should be remedial measures available … short of removing a judge from office,” MacKenzie said. “The consequence in those cases certainly should be that the judge would be named.”

Allan Hutchinson, a professor at Osgoode Hall Law School, has long advocated for more transparency in the complaints process. He said the consultation currently underway is “a good thing,” however he doubts it will address what he sees as the central problem of the council.

“They see tension between openness and independence, and I think that’s a mistake,” Hutchinson said.

“The openness can, in some ways, reinforce the integrity of the judiciary. If they’re seen to be a world unto themselves, suspicions will be raised when there may be no need for suspicion.”

Federal judges are constitutionally protected from reprisal. However, there are other remedial measures open to the council, including asking a judge to apologize to the complainant or to attend training courses at the National Judicial Institute, but those do not result in the judge being named.

Of the 180 complaints investigated every year, only about a dozen result in remedial measures or coaching, Sabourin said.

He said it is not appropriate to name a judge in these cases.

“What is the public interest in knowing that (a judge) was tired on a Friday afternoon and said to a person ‘sit down and shut up’ rather than just ‘sit down’?”

He added that in most cases the complainant and council are satisfied with the result of investigations and there is no need to make them public.

Sabourin said a judge should only be named when a public inquiry is called, which occurs only when the judge is at risk of losing the public’s confidence.

“Judges are subject to a lot of scrutiny, day in and day out, to every case they hear. We have extremely competent judges in Canada, and misconduct is a rare occurrence,” he said.


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