In an interview with the National Post on March 31st, Chief Justice Richard Wagner announced that he planned to reform the Canadian Judical Council, saying “everything is on the table”. The Chief Justice also indicated that “he is reaching out to senior judges across the country to garner their views on what changes are needed”. So, an internal review to determine what kind of changes are required to an internal process considering judges’ conduct. Is it enough to consult only with “senior judges”? I suggest not, that a review of the CJC affects anyone who cares about the legal system in Canada and that consideration of how judges are assessed warrants broader consultation.
In my last post, I discussed the ongoing review of the Ethical Principles for Judges that the CJC itself is carrying out, to which the public is invited to make contributions. In short, the principles against which judges may be assessed is open to public input, while the process by which they are assessed is apparently not.
Why should the public be allowed to participate in the review of the CJC? I grant that encouraging public input can make the review process longer (perhaps) and possibly more cumbersome; the reviewers may receive submissions they consider totally irrelevant to the process (and that may be the case). Nevertheless, the administration of justice is affected by the review of judges’ conduct and the administration of justice is the business of everyone. A failure to involve the public merely reinforces the notion that judges are a closed society. This is not consistent with a chief justice who has made it his mandate to make the justice system more accessible. In his speech on the occasion of the Office Welcoming Ceremony to him as chief justice, the new chief justice said,
we also have a responsibility to be transparent. We are already looking at ways to work with the media better and communicate with the public more directly. This is in addition to the host of measures this Court has already taken to make the job of the traditional media easier and to communicate directly and effectively with the public, including through our Twitter account. Judges and courts must adjust and must explain who they are, what they do and how they do it.
Chief Justice Wagner quickly instituted plain language headnotes for Supreme Court of Canada decisions, has suggested that the SCC might hold ‘hearings outside Ottawa (saying “`How we bring the court closer to Canadians is something I think about a lot.‘”) and supports judges giving speeches to explain the system.
Those who appear before judges, whether as legal representatives or as litigants, see judges’ conduct from a particular point of view. And, of course, judges (not only senior judges) appreciate the process from their point of view. Both are necessary to fully understand why judges’ conduct may raise concerns and why those concerns may or may not be valid. Others, such as academics, also can bring a base of knowledge to the review process, garnered from the study of processes elsewhere and in Canada. Judges do not have a monopoly on what works for the justice system. In the National Post interview,
Wagner, who became chief justice of the Supreme Court of Canada 15 months ago, said he has long wanted to look at how the judicial council and the courts themselves were working. The aim, he said, was to modernize both to ensure they were efficient, relevant and able to meet emerging challenges such as the growth in self-represented litigants.
The goals of efficiency and particuarly of relevancy and meeting emerging challenges can be best met by involving those who view the process from the outside and not only from the insularity of the (senior) bench.
Public input is exactly that, input — it is not definitive — but it does permit judges to see how their own views are perceived by others. Reviews of judges’ conduct have the potential to reinforce a positive view of the judiciary; they also have the potential to make the public question the judgment of review panels and committees of inquiries (or their future replacements). For example, the existence of an inquiry and various proceedings related to the inquiry into the conduct of the former associate chief justice Lori Douglas, lasting from the first ruling dated May 15, 2012 to the CJC’s statement of November 24, 2014 reporting her retirement and the consequent stay of proceedings raised many questions about the propriety of the CJC’s own processes (see, for example, Kyle Kirkup, “The legal inquiry into Justice Lori Douglas must end” and Melissa Smith, “Sexism and the Canadian Judicial Council: Robin Camp and Lori Douglas“, which praised the review of Robin Camp’s comments about a sexual assault victim). The complaint about Justice Patrick’s Smith interim deanship at the Bora Laskin Faculty of Law at Lakehead also led to criticism of the CJC (for my comments on the complaint and the review panel’s decision, see here).
The Chief Justice has indicated that “[a]reas [of the council’s work] include the council’s mission, how its various committees are appointed, and the crucial role of the executive director, who wields significant power as complaints gatekeeper” and further, that “everything is on the table”. This presumably includes the council’s processes in addressing complaints (how many stages of review or inquiry, for example). More information about how membership of review panels and committees of inquiry, which are comprised of judges and non-judges, is determined would be helpful, as would greater ease in finding complaints that reach only a review panel level (or equivalent under the new system). (I note on the transparency issue that the CJC takes the positive step of posting all communications and documents when a complaint is being considered by an inquiry committee.) In addition, there may be legislative changes, following on initiatives in that direction by former chief justice Beverley McLachlin.
Finally, one hopes that to the extent relevant and possible, the review of the ethical principles and that of the CJC itself will move in tandem, not as two completely separate probes.
The review of the CJC is an opportunity to reach out to those who may have insights into the relationship of the CJC and the administration of justice: let us hope that it will taken.