The Permanence and Independence of the Bench

Judicial independence is obviously a bedrock of our legal system, required to ensure the autonomy and function of the courts without outside interference. Occasionally, however, there are instances where this autonomy needs to be reigned in.

The authority for doing this for federally appointed judges can be found under Part II of the Judges Act, which creates the Canadian Judicial Council (CJC), and its powers to commence an inquiry for removal under s. 63. Since the inception of the CJC in 1971, complaints of 13 judges have proceeded to the public inquiries stage. The last one, in 2016, involved Justice Robin Camp, and recommended his removal prior to his resignation.

In fact, in all cases where the CJC has recommended a removal, the judge in question has resigned first. If they chose not to resign, the Judges Act requires a full vote from the House of Commons and Senate, which has never happened since Confederation.

Removal of office for a judge is rare, and that’s probably a good thing. But not everybody agrees with the process as it currently stands. Michael McKiernan looked into judicial complaints in 2012 in Canadian Lawyer, where he interviewed several lawyers involved in a complaint,

“It’s easier to get a constitutional amendment than to remove a judge,” says Rocco Galati, a Toronto lawyer representing Slansky in the judicial review. “Judges are human beings. They don’t descend from the sky or heaven, and some need to be removed. If the public knew the kinds of things some judges do, I think there would be more action taken. They make life hell not only for lawyers, but the people that have to come in front of them.”

The best illustration of the difficulties in the process of removal would be the long and protracted complaint against Justice Cosgrove, first initiated in 2004. Justice Cosgrove argued that s. 63(1) of the Act was unconstitutional as it infringed the independence of the judiciary. When the CJC did not agree with his interpretation, he applied for judicial review l at the Federal Court in 2005, where he was initially successful. He was then reversed by the Federal Court of Appeal in 2007, who referred the matter back to the CJC.

The test used for removal of a judge is obtained from 1990 Report to the Canadian Judicial Council of the Inquiry Committee Established Pursuant to Subsection 63(1) of the Judges Act at the Request of the Attorney General of Nova Scotia (the Marshall Report), which was adopted by the Supreme Court of Canada in Moreau-Bérubé v. New Brunswick,

Is the conduct alleged so manifestly and profoundly destructive of the concept of the impartiality, integrity and independence of the judicial role, that public confidence would be sufficiently undermined to render the judge incapable of executing the judicial office?

The CJC in Justice Cosgrove’s case ultimately concluded in 2008,

…the words used and the conduct engaged in by Justice Cosgrove, over a prolonged period of time, constitute a failure in the due exercise of his office by abusing his powers as a judge. They give rise to a reasonable and irremediable apprehension of bias. Regrettably, his statement is insufficient to offset the serious harm done to public confidence in the concept of the judicial role, as described in the Marshall test. He has rendered himself incapable of executing the judicial office.

In the March 30, 2009 report of the CJC to the Minister of Justice, the Council members stated,

[1] Public confidence in the judiciary is essential in maintaining the rule of law and preserving the strength of our democratic institutions. All judges have both a personal and collective duty to maintain this confidence by upholding the highest standards of conduct…

[64] We find that Justice Cosgrove has failed in the execution of the duties of his judicial office and that public confidence in his ability to discharge those duties in future has been irrevocably lost. We find that there is no alternative measure to removal that would be sufficient to restore public confidence in the judge in this case. Therefore, we hereby recommend to the Minister of Justice, in accordance with section 65 of the Judges Act, that Justice Cosgrove be removed from office.

Within months, Justice Cosgrove had resigned.

The most recent complaint to proceed to a public inquiry in Ontario is with Justice Bernd Zabel, the facts of which I have previously detailed here. The Ontario Judicial Council (OJC) has similar powers under the Courts of Justice Act as the CJC to make a complaint, investigation, hearing and disposition or conduct a hearing for provincially appointed judges.

The basis of the alleged judicial misconduct with Justice Zabel is not simply the statements and actions taken by the judge, but also the subsequent public statements he made in court in his apology to the public. Transcripts obtained by the Toronto Star demonstrate a clear inconsistency with his apology, and with the version he presented of the course of events.

A total of 81 complaints against Justice Zabel ensued. Whether this conduct warrants removal still remains yet to be seen, but the OJC may also impose a warning, reprimand, order an apology, order education or treatment, or impose a suspension with or without pay.

The hearing into Justice Zabel’s conduct will commence at 9 a.m. on Wednesday, August 23, 2017 at St. Andrew’s Club and Conference Centre, 150 King Street West, 27^th Floor, Toronto, Ontario.