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.” 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.” 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.