The Canadian Judicial Council (CJC; French: Conseil canadien de la magistrature) is the national council of the judiciary of Canada, overseeing the country's federal judges.
Conseil canadien de la magistrature | |
 | |
| Formation | 1971 |
|---|---|
| Headquarters | Ottawa, Ontario, Canada, K1A 0W8 |
Region | Canada |
Chair | Justice Richard Wagner |
| Website | cjc-ccm |
The Council has 44 members, composed of chief justices and associate chief justices. It is chaired by the Chief Justice of Canada, currently Justice Richard Wagner.[1]
History
editThe council was created in 1971 by the Parliament of Canada[2] following years of discussion about the need to coordinate professional development and judicial conduct matters for judges, in a way that would respect the judiciary as an independent branch of government. The review of complaints had previously usually been coordinated by the Department of Justice, with the occasional involvement of local Chief Justices.
Landreville case
editA key factor that facilitated the creation of the council was the case of justice Leo Landreville. He was charged with a criminal offence. Those charges were dismissed, but allegations of impropriety continued to be made by some. This gave rise to quite a bit of public debate; some in the legal profession criticized the fact that the judge was still sitting. A Committee of the Law Society, despite not having jurisdiction over a federally appointed judge, produced a negative report without even notifying Landreville of its proceedings.
There being no defined process to formally inquire into the conduct of a judge, the government then constituted a one-man Royal Commission headed by former Supreme Court Justice Ivan Rand. In his report, Rand found some improprieties and was critical of Justice Landreville. However, some said Mr Rand was biased and famous constitutional lawyer J.J. Robinette who represented Justice Landreville before the Commission was seriously critical of the process.
After the Rand report became public, a joint Committee of Parliament eventually recommended the judge's removal and he resigned.
There were many who came to a view that the process which had been followed was flawed: the absence of a process defined in legislation to review the conduct of a judge left too much room for review by the law societies, government or Parliament, of even other bodies without necessarily involving the judiciary.
Professor William Kaplan, in his book Bad Judgment, wrote that "[w]ithout a doubt, the Landreville case figured prominently in the decision to establish the council." He quotes the Parliamentary Secretary to the Minister of Justice who spoke during second reading of the Bill that created the Council: "Because the independence of the judiciary is an integral part of the Canadian democratic process, it is important that the judiciary become, to some extent, a self-disciplinary body."[3]
According to Martin Friedland, "There is no doubt that the awkwardness and uncertainty of the Landreville proceeding was a factor motivating Parliament to adopt this new procedure."[4]
Organization and activities
editThe CJC's activities have been characterized as seeking to investigate complaints about judicial misbehaviour and on the other hand protecting the reputation of judges against unfounded accusations.[2]
Members
editThe Council has 44 members, composed of chief justices and associate chief justices. It is chaired by the Chief Justice of the Supreme Court of Canada, currently Justice Richard Wagner.[1][5]
| Justice | Jurisdiction | Title |
|---|---|---|
| Richard Wagner (Chairperson) | Supreme Court of Canada | Chief Justice of Canada |
| Ritu Khullar | Court of Appeal of Alberta | Chief Justice of Alberta |
| Kent Davidson | Court of King's Bench of Alberta | Chief Justice of the Court |
| Kenneth G. Nielsen | Court of King's Bench of Alberta | Associate Chief Justice of the Court |
| D. Blair Nixon | Court of King's Bench of Alberta | Associate Chief Justice of the Court |
| Leonard Marchand | British Columbia Court of Appeal | Chief Justice of British Columbia |
| Ronald A. Skolrood | Supreme Court of British Columbia | Chief Justice of the Court |
| Heather J. Holmes | Supreme Court of British Columbia | Associate Chief Justice of the Court |
| Marianne Rivoalen | Manitoba Court of Appeal | Chief Justice of Manitoba |
| Glenn Joyal | Court of King's Bench of Manitoba | Chief Justice of the Court |
| Shane I. Perlmutter | Court of King's Bench of Manitoba | Associate Chief Justice of the Court |
| Gwen B. Hatch | Court of King's Bench of Manitoba | Associate Chief Justice of the Court, Family Division |
| J.C. Marc Richard | Court of Appeal of New Brunswick | Chief Justice of New Brunswick |
| Tracey DeWare | Court of King's Bench of New Brunswick | Chief Justice of the Court |
| Larry Landry | Court of King's Bench of New Brunswick | Associate Chief Justice of the Court |
| Deborah E. Fry | Court of Appeal of Newfoundland and Labrador | Chief Justice of Newfoundland and Labrador |
| Raymond P. Whalen | Supreme Court of Newfoundland and Labrador | Chief Justice of the Trial Division of the Court |
| Rosalie McGrath | Supreme Court of Newfoundland and Labrador | Associate Chief Justice of the Trial Division of the Court |
| Shannon Smallwood | Supreme Court of the Northwest Territories | Chief Justice of the Court |
| Michael J. Wood | Nova Scotia Court of Appeal | Chief Justice of Nova Scotia |
| Deborah K. Smith | Nova Scotia Supreme Court | Chief Justice of the Court |
| R. Lester Jesudason | Supreme Court of Nova Scotak | Associate Chief Justice of the Court, Family Division |
| Patrick J. Duncan | Supreme Court of Nova Scotia | Associate Chief Justice of the Court |
| Susan Cooper | Nunavut Court of Justice | Acting Chief Justice of the Court |
| Michael H. Tulloch | Court of Appeal for Ontario | Chief Justice of Ontario |
| Geoffrey Morawetz | Ontario Superior Court of Justice | Chief Justice of the Court |
| J. Michal Fairburn | Court of Appeal for Ontario | Associate Chief Justice of Ontario |
| Faye E. McWatt | Ontario Superior Court of Justice | Associate Chief Justice of the Court |
| James W. Gormley | Court of Appeal of Prince Edward Island | Chief Justice of Prince Edward Island |
| Tracey L. Clements | Supreme Court of Prince Edward Island | Chief Justice of the Court |
| Manon Savard | Quebec Court of Appeal | Chief Justice of Quebec |
| Marie-Anne Paquette | Superior Court of Quebec | Chief Justice of the Court |
| Catherine La Rosa | Superior Court of Quebec | Senior Associate Chief Justice of the Court |
| Jean-Francois Michaud | Superior Court of Quebec | Associate Chief Justice of the Court |
| Robert Leurer | Court of Appeal for Saskatchewan | Chief Justice of Saskatchewan |
| Martel D. Popescul | Court of King's Bench for Saskatchewan | Chief Justice of the Court |
| Michael D. Tochor | Court of King's Bench for Saskatchewan | Associate Chief Justice of the Court |
| Suzanne M. Duncan | Supreme Court of Yukon | Chief Justice of the Court |
| Yves de Montigny | Federal Court of Appeal | Chief Justice of the Court |
| Paul S. Crampton | Federal Court | Chief Justice of the Court |
| VACANT | Federal Court | Associate Chief Justice of the Court |
| Gabrielle St-Hilaire | Tax Court of Canada | Chief Justice of the Court |
| Anick Pelletier | Tax Court of Canada | Associate Chief Justice of the Court |
| Mary J.L. Gleason | Court Martial Appeal Court of Canada | Chief Justice of the Court |
Review of Complaints
editThe Canadian Judicial Council was granted power under the Judges Act to investigate complaints made by members of the public or the Attorney General about the conduct of federally appointed judges. After its review and investigation of a complaint, the Council can make recommendations to Parliament through the Minister of Justice that a judge be removed from office.
Canada is one of the very few countries where a complaint can be made against the Chief Justice in the same way as any other judge.[citation needed] The Chief Justice is not involved in the review of complaints.
List of public inquiries
editWhile the majority of complaints are dealt with quickly and without a public hearing, there are some instances where a judge's conduct is considered to be of sufficient concern that further inquiry is warranted.
Since its inception in 1971, the CJC has referred a total of 14 complaints (one involving three judges) to an inquiry committee:[6][7][8]
| Name | Inquiry year | Committee recommendation | Outcome | |
|---|---|---|---|---|
| 1. | Gordon Hart | 1990 | Remain | |
| 2. | Malachi Jones | 1990 | Remain | |
| 3. | Angus MacDonald | 1990 | Remain | |
| 4. | Fernand L. Gratton | 1994 | None | Resigned before committee made recommendation |
| 5. | Jean Bienvenue | 1996 | Removal | Resigned |
| 6. | Robert Flahiff | 1999 | Removal | Resigned |
| 7. | Bernard Flynn | 2003 | Remain | |
| 8. | Jean-Guy Boilard | 2003 | Remain | |
| 9. | Theodore Matlow | 2007 | Removal | Remained after full panel of CJC recommended he not be removed[6] |
| 10. | Paul Cosgrove | 2009 | Removal | Resigned |
| 11. | Lori Douglas | 2012 | None (proceedings stayed) | Decision stayed after Douglas agreed to retire early[9][10] |
| 11. | Michel Déziel | 2015 | Remain[11] | |
| 12 | Michel Girouard | 2016 | Removal[12] | Full panel of CJC recommended he not be removed[12] |
| 13. | Robin Camp | 2016 | Removal[13] | Resigned, after the Minister of Justice sought to remove Justice Camp from the bench [14] |
| 14. | Michel Girouard | 2017 | Removal[15] | A re-hearing of the first inquiry conducted in 2016.[16] The full council voted 23–3 in favour of recommending to the Minister of Justice to remove Justice Girouard from office on February 20, 2018.[17] Resigned after appeals failed.[18] |
| 15. | Frank Newbould | 2017 | None (proceedings stayed) | Justice Newbould retired from office before the proceedings of the Inquiry Committee began.[19] |
Criticisms
editLimited removals
editIn its 40-year history, the CJC has only ordered 11 public inquiries and only twice recommended that a judge be removed from the bench.[20] In the 145 years since Confederation, only five superior court judges have been recommended for removal from the bench.[5] All but one resigned before being removed.[5]
The CJC has declined to recommend removal even in cases where there was a finding of inappropriate conduct.[20] In 2008, a CJC inquiry panel recommended removing Ontario Superior Court Justice Theodore Matlow from the bench, but a majority of the full CJC overruled the removal recommendation despite agreeing there was misconduct.[5] Rocco Galati criticized the difficulty of removing judges, saying that "it's easier to get a constitutional amendment than to remove a judge."[5]
After a full panel of the CJC ignored its committee recommendation and recommended that Quebec judge Michel Girouard should remain on the bench, federal Justice Minister Jody Wilson-Raybould and Quebec Justice Minister Stéphanie Vallée ordered the CJC to reconsider its decision.[21]
The CJC has said that misconduct should not guarantee the judge's removal, and the gravity of the misconduct must be determined.[20] Osgoode Hall Law School professor Trevor Farrow said that the rarity of removals reflects the high value that is placed on independence for judges in Canada.[20]
Makeup of CJC
editThe CJC is composed only of judges. Galati criticized the makeup of the CJC, pointing out that judges are the only truly self-regulating profession in Canada, and has urged public participation in the process.[5] Osgoode Hall Law School professor Allan Hutchison argued that the CJC should include members of the public, and criticized the hypocrisy of judges calling for natural justice in other professions.[5] University of Calgary Faculty of Law professor and Canadian Association for Legal Ethics president Alice Wooley said including laypersons in the CJC would ensure that the process is less insular and more transparent.[21]
Secrecy
editIn September 2003, the Canadian Justice Review Board, a non-governmental advocacy group and "coalition of citizens,"[22] expressed concern that the CJC is too secretive.[23] Wooley criticized the CJC for not clearly articulating what constituted misconduct worthy of sanctions.[21]
Range of sanctions
editSome critics have pointed out that the only available sanction of removal may not be appropriate in some circumstances.[21]
References
edit- ^ a b c "About the Council". Canadian Judicial Council. Retrieved 2021-11-14.
- ^ a b Morton, Frederick Lee (2002-01-01). Law, Politics and the Judicial Process in Canada. University of Calgary Press. ISBN 9781552380468.
- ^ Kaplan, William. Bad Judgment. p. 194.
- ^ Friedland, Martin. 1995. A Place Apart: Judicial Independence and Accountability in Canada. p. 88.
- ^ a b c d e f g McKiernan, Michael. "Judging the judges". Canadian Lawyer. Retrieved 2024-01-15.
- ^ a b Scallan, Niamh (2012-07-30). "Lori Douglas scandal inquiry: A look at cases when judges judge themselves". Toronto Star. Retrieved 2016-09-09.
- ^ "What's at stake in the case of Justice Robin Camp". Maclean's. 2016-09-07. Retrieved 2016-09-09.
- ^ "Canadian Judicial Council Inquiry Committee Decisions". Canadian Judicial Council. Retrieved 2016-09-09.
- ^ Pritchard, Dean (24 November 2014). "Lori Douglas to quit rather than face inquiry". Winnipeg Sun. Retrieved 26 November 2014.
- ^ Statement by the Canadian Judicial Council regarding the Inquiry in to the conduct of the Honourable Lori Douglas
- ^ "Quebec judge handled illegal donations but panel says he should keep his job". Retrieved 2016-09-09.
- ^ a b "Judge who allegedly bought cocaine should stay on bench, says judicial watchdog". Retrieved 2016-09-09.
- ^ "In the Matter of an Inquiry Pursuant to s. 63(1) of the Judges Act Regarding the Honourable Justice Robin Camp Report and Recommendation of the Inquiry Committee to the Canadian Judicial Council" (PDF). Retrieved 1 December 2016.
- ^ "Judge in 'knees together' sex assault case resigns after judicial council recommends removal". CBC News. 2017-03-09. Archived from the original on 2023-06-07.
- ^ An Inquiry Committee of the Canadian Judicial Council recommends the removal of Justice Michel Girouard
- ^ Federal, Quebec justice ministers ask CJC for new hearing on Girouard
- ^ Canadian Judicial Council recommends that Justice Michel Girouard be removed from office
- ^ Michel Girouard resigns from Quebec Superior Court: Canadian Judicial Council
- ^ Report of the Inquiry Committee to the Canadian Judicial Council
- ^ a b c d "What it takes to have a misbehaving judge dismissed". CBC News. Retrieved 2016-09-09.
- ^ a b c d Schmitz, Chris. "Growing calls for reform in way those who judge others are judged". Lawyer's Weekly. Retrieved 2016-09-09.
- ^ Crosby, Connie. "Canadian Justice Review Board - Curious Question". SLaw Magazine. Retrieved May 3, 2013.
- ^ "Press Release," Canadian Justice Review Board, 4 Feb. 2005 Archived 2011-09-11 at the Wayback Machine, accessed 13 July 2013
