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Reforming the Judicial Discipline Process: Putting the Public in the Public Interest

Over the summer, Justice Canada engaged in a low-key consultation on “Judicial Discipline Process Reform”, releasing a bland discussion paper appropriately-titled “Possibilities for Further Reform of the Federal Judicial Discipline Process”. The title is at once both misleading and accurate. It is in part misleading because there have been no significant changes to the federal judicial discipline process as set out in the Judges Act since that statute was enacted in 1971. It is accurate because the Justice Canada consultation comes on the heels of reforms enacted by the Canadian Judicial Council (CJC) in 2015 after it issued its own Background Paper on Review of the Judicial Conduct Process. The CJC was limited in the scope of its review because it is established, empowered and limited by the Judges Act. The Justice Canada consultation specifically foresees potential amendments to the Judges Act.

Unfortunately, Justice Canada has given inadequate consideration to the role of the public in the judicial discipline process. This one of several assertions made by the Canadian Association for Legal Ethics (CALE) in its submission to Justice Canada (full disclosure: I am the Vice-President of CALE and was involved in drafting its submission to Justice Canada’s consultation).

The Canadian Judicial Council is composed entirely of chief justices and associate chief justices. There are no lawyers, let alone public members, on the Council. No members of the public sit on the inquiry committees that make findings of judicial misconduct and recommend whether sanctions are appropriate. This sets the Council apart from its provincial counterparts across the country in British Columbia, Alberta, Saskatchewan, Manitoba, Ontario, Quebec, Nova Scotia, New Brunswick, Newfoundland and Labrador. In other words, members of the public are part of the judicial discipline process in every province except Prince Edward Island.

In short, the judicial discipline process for federally-appointed judges is out of sync with the prevailing practices across Canada.

It is also out of sync with the prevailing approach to professional regulation in Canada. All Law Societies in Canada now have public members involved not only in their discipline process but in their policy-making process as well as full-fledged members of their governing bodies. The same goes for other professions: engineering, public accounting, medicine, nursing, etc.

In the Ethical Principles for Judges, the Canadian Judicial Council has stated that “[p]ublic confidence in and respect for the judiciary are essential to an effective judicial system and, ultimately, to democracy founded on the rule of law.”[1] It has also stated that “[j]udicial independence is not the private right of judges but the foundation of judicial impartiality and a constitutional right of all Canadians.”[2] Supreme Court case law is replete with similar such statements.

CALE stated in its submission that “public confidence and public perception is both the touchstone and the justification for judicial independence and for judicial discipline” and therefore “it is essential that members of the public be part of all aspects of the regulation of judges.”

The public should actually be involved in a process whose raison d’être is to promote public confidence in our judges and in the administration of justice.

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[1] Canadian Judicial Council, Ethical Principles for Judges (1998), c. 3, cmt 1.

[2] Canadian Judicial Council, Ethical Principles for Judges (1998), c. 2, cmt 1.

Comments

  1. As a member of the public who has had the opportunity to become informed I believe the creation of the CJC in 1971 was a mistake. Parliament should now consider creating an agency that is as “independent” (always a problematic concept) as possible from all partisan – particularly executive and legal establishment – interests. Even if the CJC was left in place, such an agency, given a strong mandate to review all complaints, could give the public reason to have some faith in the system.

    My experience includes filing complaints (on three occasions) with the CJC. Obviously I did so as a member of the public. The Law Society of BC has also received complaints from me. When the most recent one was dismissed we (I was acting for an associate) took it to judicial review and subsequently found ourselves in a courtroom presided over by a judge I had named in the first two complaints the CJC had received from me.

    I wasn’t allowed to address the court. In fact I had anticipated the possibility that I wouldn’t even be allowed into the courtroom because of certain orders that the Law Society had secured. The file on this matter remains “SEALED”, and I can’t even explain why.

    I am, among other things, a veteran of “complaints” processes. But long before I began testing the legal system I had an opportunity, as a member of the public, to serve on a jury.

    I don’t know if all of Canada’s provincial law societies have what the Law Society of B.C. calls “appointed” – as opposed to “elected” benchers. The B.C. statute currently gives the provincial government the right to appoint up to six of these benchers. It is claimed that they represent the public. But they don’t. I could go through the list of the current six in B.C. and comment on why I believe they are compromised.

    I regret to say that I don’t know anything about the protocols for jury selection, but I have some faith that juries do represent the public, in part due to what I saw when I served on one.

    If we are going to talk about true public representation on agencies like the CJC then we don’t want arrangements like the one the LSBC currently has.

  2. I was able to send in a submission thanks to hearing about the opportunity through the coverage of CALE’s submission, so thanks for that, Adam et al. I agreed with CALE’s statement that the scope of review was far too narrow.

    But I also think that the wrong topic is being addressed first. Despite the fact that judges are very smart people and that most are working incredibly hard, it is apparent from a couple of perspectives that the judiciary has a system-wide performance problem, and the way to address that rationally is not to start off with perfecting the discipline process, but with a performance audit and quality assurance program.

    The discipline process, running as it does on complaints, is at best random, and at worst manipulable by special interests in a direct challenge to judicial independence. A process of that nature cannot serve as the lynchpin that sustains public confidence, whether that is measured as the actual confidence that the public has, or the amount of confidence that is merited as a function of the quality of judicial work.

    Does the judiciary do its own performance audits, or does anyone else do them?

    I do not think that comparing the judiciary to a profession is a productive line of analysis. It lacks the necessary characteristics of a profession, and has the authority of a branch of government. Comparison with the other branches of government offers, in my view, a more suitable basis for comparison. Doing so allows the conversation to begin with a clear statement of the judiciary’s mandate and role – a better basis for a performance review than the question “what is wrong with this picture?”