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Growing calls for reform in way those who judge others are judged

Ethics group says more transparency needed for ‘insular’ judge discipline process
By Cristin Schmitz
September 02 2016 issue

University of Calgary law professor Alice Woolley, who is also president of the Canadian Association for Legal Ethics, is among the voices calling for reform to the way the Canadian Judicial Council handles disciplining judges. She is seen above recently in Vancouver. [Alistair Eagle for The Lawyers Weekly]

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The Canadian Judicial Council (CJC) is facing calls for reform as the council of 39 chief justices braces for intense public scrutiny at the Robin Camp inquiry set for next week.

The growing appetite for change (shared by the council itself) is not lost on the Liberal government, which is mulling a raft of potential amendments to the federal Judges Act —including adding public participation to the cloistered discipline process that normally permits only chief judges to be the arbiters of superior court judges’ conduct.

Mandating public involvement in the council, and “ensuring a principled assessment of the facts and precedent applicable to each [judicial discipline] case,” are the most pressing changes required, says University of Calgary law professor Alice Woolley.

“The process is too insular — it is not sufficiently transparent,” argues Woolley, who is president of the Canadian Association for Legal Ethics (CALE).

She and several other law professors filed a complaint against Federal Court Justice Camp last year that led to Alberta Justice Minister Kathleen Ganley ordering the CJC to formally inquire into allegations the former Alberta provincial court judge was guilty of misconduct at a sexual assault trial he presided over in 2014.

“There is not a clear enough articulation [at the CJC] of what constitutes misconduct worthy of sanction, such that the outcomes in particular cases are principled and predictable,” Woolley said by e-mail.

Indeed, federal Justice Minister Jody Wilson-Raybould demonstrated her own dissatisfaction with the discipline process in mid-June when she and Quebec Justice Minister Stéphanie Vallée ordered the CJC to revisit its April decision to let Quebec Superior Court Justice Michel Girouard off the hook for allegedly misleading a CJC inquiry about allegations (later dismissed as unproven) the judge used cocaine before he joined the bench. Two weeks after the council tossed out the Girouard case, the Department of Justice (DOJ) tweeted out (without a press release or home-page announcement) a 53-page consultation paper detailing “possibilities for further reform of the federal judicial discipline process.”

Imposing Aug. 30 as the deadline, the DOJ said “the government is committed to ensuring a fair, transparent, efficient and cost-effective judicial discipline process that holds judges to account for their conduct while respecting judicial independence.”

CALE’s vice-president and author of its submission, University of Ottawa law professor Adam Dodek, told The Lawyers Weekly the federal government should venture beyond the ideas on which the DOJ consulted.

For example members of the public should be full members of the council involved in all its activities, not just ad hoc participants in judicial discipline, he said. “That’s a 1970s vision of professional regulation — that’s how it used to be for lawyers…[and] for other professions,” Dodek explained. “They thought that they could adequately define the public interest. A modern regulatory approach recognizes that when you are regulating in the public interest, you need to have the public involved.”

As its members are mostly older white males, the CJC also needs a more diverse membership, CALE’s submission says. “The Canadian judiciary is not, at present, representative of many groups in Canadian society. This is all the more reason why it is critical to include public members as full members of the CJC and as full members in each stage of the discipline process.”

CALE says the process must also be streamlined. The high-profile inquiry into former Associate Chief Justice Lori Douglas, for example, ran for four years before the judge retired last year, after the inquiry racked up millions in legal costs. “To its credit, the CJC itself has recognized that the process is desperately in need of improvement, through the white paper it issued two years ago, which frankly was a lot more bold than the proposals in the Justice Canada consultation,” Dodek said.

“I think the key point that everyone in the system recognizes is that the process has become really cumbersome and inefficient…There’s too many steps in the process. It takes too long.”

Professional discipline expert Gavin MacKenzie of Toronto’s MacKenzie Barristers agrees with CALE that the range of sanctions available to the CJC for judicial misconduct should be expanded to include intermediate remedial and disciplinary sanctions, short of recommending a judge’s removal from office. The Canadian Bar Association (CBA) recommended the same thing two years ago as part of a public consultation by the CJC.

“Every professional body of which I’m familiar has a range of sanctions available to it,” says MacKenzie. “Judges are unique in the sense that the CJC inquiry committee can recommend removal from the bench or nothing at all, with nothing in between. And my view is that it would be desirable if there were a range of sanctions available to the inquiry committee other than those two extremes.”

While recommending the firing of a judge is the only remedy currently available to the CJC under the Judges Act, it is almost never imposed. By contrast, provincial and territorial judicial councils are able to issue warnings and reprimands, suspend judges with or without pay and order such measures as apologizing to a complainant, mandatory education, or undergoing treatment as a condition of continuing to preside — remedies CALE recommends should be available to the CJC.

Norman Sabourin, the CJC’s executive director and senior general counsel, told The Lawyers Weekly the judicial council welcomes the government’s consultation process. Last year the council streamlined its discipline process, adding some public input, via changes to its procedures and bylaws. “This is an opportunity to further improve the process through legislative amendments,” Sabourin noted by e-mail. The CJC has previously said it is looking for amendments that would restrict, or eliminate, interlocutory court challenges by judges that have dragged out several recent CJC inquiries at considerable public expense. Another reform it seeks is the setting of clear parameters for — and restrictions on — public funding of judges’ legal defence costs.

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