Striking a fair balance

The Judicial Issues Suncommittee of the Canadian Bar Association supports replacing the old process and establishing new rules for how complaints against federally appointed judges are handled. Bill C-9, An Act to amend the Judges Act, was introduced in December and the Subcommittee says, in a letter, that it supports the new process it ushers in.

In a 2014 submission to the Canadian Judicial Council, or CJC, the CBA offered several recommendations to ensure the independence of the judiciary and the public’s confidence in the administration of justice were respected in a process that should be efficient and timely.

“Recent government consultations underscored the length of time required to investigate these complaints and the consequent costs of investigation,” the Subcommittee writes, “including the potential cost of a member of the Bench being unable to fulfill their duties while defending a complaint for misconduct.”

The CBA’s 2014 suggestions, as well as those of the CJC, eventually led to the amendments contained in Bill C-9, after Justice Canada issued a white paper in 2016 and held online consultations on the subject.

Bill C-9 improves the process in three different ways:

• it creates a process for reviewing allegations not serious enough to warrant removal from office;
• it improves the process by which recommendations on removal are made to the Minister; and
• it ensures that the determination of pensionable service for judges ultimately removed from office reflects the actual time of service and does not include the time of review.

The first item, screening to ensure complaints are serious enough to warrant removal from office, is one the CBA sees as a positive development. “Bill C-9 imposes mandatory sanctions such as counselling, continuing education and reprimands in these cases,” it explains in its letter. “This process saves the CJC time, ensures that judicial resources are well-managed, and minimizes the amount of time a judge might potentially spend defending a frivolous complaint.”

Judges who face potential removal would have access to an appeal panel made up of three CJC members and two judges. They would also have the possibility of appealing to the Supreme Court of Canada, at the Court’s discretion.

As the Subcommittee says, this constitutes significant streamlining of the current process for court review of CJC decisions, “which involves judicial review by two additional levels of court (the Federal Court and Federal Court of Appeal) before a judge can ask the SCC to hear their case.”

The process needs to ensure judges can defend their conduct through a fair process. Judicial independence needs to be accompanied by judicial accountability to maintain the confidence of the public in the administration of justice.

“If our judiciary is to be respected and trusted, the public must be satisfied that judges are both independent of external influences and accountable for their conduct on the Bench,” the letter reads. In the Subcommittee’s view, Bill C-9 will enhance the accountability of judges, build transparency and reduce the costs of handling complaints against members of the Bench.