Toronto Star

Complaints about judges kept secret

Judicial council’s plans to improve transparen­cy fall short, critics say


More than 99 per cent of complaints against federal judges are dealt with in secret, despite the fact they preside over the highest levels of government, including matters of national security and human rights.

The Canadian Judicial Council, which investigat­es complaints against the country’s 1,200 federally appointed judges, has launched a public consultati­on to make its complaints process more transparen­t. But some critics say the changes under considerat­ion do not go far enough.

The council itself is made up exclusivel­y of judges. Short of recommendi­ng Parliament remove a judge from office, which the council has done only three times since it was created in 1971, it has no disciplina­ry powers.

Judges facing complaints get free legal representa­tion at taxpayers’ expense and can escape the scrutiny of a public inquiry by resigning or retiring instead — an option all those targeted for a public inquiry so far have exercised.

“This is judges judging judges. It’s incestuous,” said Toronto constituti­onal lawyer Rocco Galati, who described the council as “a whitewash institutio­n.”

“I have no faith in the CJC. It is not there to discipline judges; it is there to protect judges,” he said.

Since the early 1990s, about 180 of the average 600 complaints the council receives annually are deemed worthy of a review screening process, said the council’s executive director, Norman Sabourin. These internal investigat­ions can take between three and six months.

“This is judges judging judges. It’s incestuous. I have no faith in the CJC. It is not there to discipline judges; it is there to protect judges.” ROCCO GALATI CONSTITUTI­ONAL LAWYER

Of the roughly 3,600 complaints the council has probed in the past 20 years, only 11 — fewer than 0.5 per cent — have resulted in a public inquiry. (The first public inquiry into a complaint against a federal judge was held in 1990.)

Unless a complaint results in an inquiry, the council keeps secret the judge’s name, province, details of the allegation­s and even results of the investigat­ion.

The only public insight into the bulk of the investigat­ions is a brief summary of a handful of complaints disclosed in the council’s annual report. Some examples: A judge who “waved his hand” at a litigant who spoke English as a second language and denied him his right to understand what was happening in court.

A judge who was sent to a gender bias training course after making insensitiv­e comments during a sexual assault case.

A judge who made comments that contribute­d to the ongoing “degrading debate” surroundin­g aboriginal people in Canada.

This is less informatio­n, in some respects, than is shared about complaints against Ontario’s provincial judges.

In Ontario, the summaries of all investigat­ions are published, but complainan­ts are banned from speaking out publicly unless a hearing is called.

(The Star is currently challengin­g the constituti­onality of the policy in Ontario, where the judicial council has imposed a “general order” sealing all complaints against judges that do not result in a public hearing.)

At the federal level, complainan­ts are free to publicly disclose the details of their complaints, and the council will then respond in public.

Sabourin, who has headed the federal judicial council for the past 10 years, conceded that “a lot of improvemen­ts could be made.”

The council’s public consultati­on was launched in March and is expected to wrap up by early 2015, he said.

The measures under considerat­ion include publicizin­g every investigat­ion and changing legislatio­n to allow the council to include representa­tion from ordinary people.

At the moment, the only involvemen­t from non-judges occurs when a public inquiry is called, and the federal justice minister can appoint a lawyer to sit on the inquiry panel. (In Ontario, self-regulating authoritie­s that probe complaints against judges, lawyers and doctors include lay people.)

However, Galati has labelled the council’s bid for further transparen­cy “smoke and mirrors.” He is calling for an independen­t committee to take over the council, claiming that numerous serious complaints are not thoroughly probed.

“(Judges) are in a structural­ly conflicted position. They are not impartial, and the fact that they insist on keeping it all secret just proves that are trying to protect each other,” Galati said.

“This has got no place in a constituti­onal democracy.”

Toronto lawyer Gavin MacKenzie chaired a working group at the Canadian Bar Associatio­n (CBA) that recommende­d ways to improve the complaints process, including increasing the number of investigat­ions summarized in the annual report and adding laypeople to the council.

He believes the council’s disciplina­ry powers should be expanded.

“There should be remedial measures available . . . short of removing a judge from office,” MacKenzie said. “The consequenc­e in those cases certainly should be that the judge would be named.”

Allan Hutchinson, a professor at Osgoode Hall Law School, has long advocated for more transparen­cy in the complaints process.

He said the consultati­on currently underway is “a good thing,” however he doubts it will address what he sees as the central problem of the council.

“They see tension between openness and independen­ce, and I think that’s a mistake,” Hutchinson said.

“The openness can, in some ways, reinforce the integrity of the judiciary. If they’re seen to be a world unto themselves, suspicions will be raised when there may be no need for suspicion.”

Federal judges are constituti­onally protected from reprisal. However, there are other remedial measures open to the council, including asking a judge to apologize to the complainan­t or to attend training courses at the National Judicial Institute, but those do not result in the judge being named.

Of the 180 complaints investigat­ed every year, only about a dozen result in remedial measures or coaching, Sabourin said.

He said it is not appropriat­e to name a judge in these cases.

“What is the public interest in knowing that (a judge) was tired on a Friday afternoon and said to a person ‘sit down and shut up’ rather than just ‘sit down?’ ”

He added that in most cases the complainan­t and council are satisfied with the result of investigat­ions and there is no need to make them public.

Sabourin said a judge should only be named when a public inquiry is called, which occurs only when the judge is at risk of losing the public’s confidence.

“Judges are subject to a lot of scrutiny, day in and day out, to every case they hear. We have extremely competent judges in Canada, and misconduct is a rare occurrence,” he said.

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 ??  ?? An inquiry into Lori Douglas’s conduct was dropped after she announced she was retiring. Robert Flahiff, centre, and Paul Cosgrove both retired after inquires were launched into their misconduct.
An inquiry into Lori Douglas’s conduct was dropped after she announced she was retiring. Robert Flahiff, centre, and Paul Cosgrove both retired after inquires were launched into their misconduct.

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