Federally appointed judges investigated for misconduct have lost their right to go to court to challenge the disciplinary proceedings, a move opposed by the legal community and the judges themselves.
The loss of automatic access to the Federal Court to review disciplinary proceedings leaves the fate of judges largely in the hands of an administrative body of their peers that has in recent years been strongly criticized for unfairness.
That body is the Canadian Judicial Council, and is made up of chief and associate chief justices. Chaired by Supreme Court Chief Justice Richard Wagner, it is responsible for disciplining judges accused of various forms of misconduct. Its guidelines for how judges should behave off the bench leave room for interpretation.
“Sometimes tribunals get it wrong, and sometimes deny aggrieved parties their right of a fair process, or otherwise exceed their jurisdiction,” said lawyer Gavin MacKenzie, who specializes in legal ethics. “It is imperative that an effective appeal or review process before the courts be in place.”
The loss of judges’ right to judicial review received little public attention during parliamentary debate on new disciplinary procedures for the 1,200 full- and part-time members of federally appointed courts, such as superior courts of provinces, Federal Court and the Supreme Court. The amendments to the Judges Act received royal assent in late June.
The new procedural rules set out mostly small, technical changes, chief among them the establishment of a separate process for less serious complaints that may result in sanctions short of dismissal. Most changes were widely supported in Parliament and by the legal community.
Before the rules were amended, judges had the right to go to Federal Court to challenge a recommendation for dismissal or perceived unfairness in the investigative process.
Under the new rules, judges have a right of appeal only within the judicial council itself. The council would set up an appeal panel of five judges – three of them judicial council members, and two from a roster of judges designated by a group of federally appointed judges.
A judge who wishes to challenge a ruling of the appeal panel under the new rules may ask the Supreme Court of Canada for permission to file an appeal. But the Supreme Court’s role is not to correct legal errors by lower courts or administrative bodies; the court selects cases with broad national importance. For that reason, lawyers’ groups such as the 38,000-member Canadian Bar Association say its usefulness is likely to be extremely limited.
In 2018, an Ontario judge, Patrick Smith, was accused of misconduct by the judicial council’s executive director (there was no complaint from the public) after he took a leave to become the temporary, unpaid dean of Lakehead University’s law school. Justice Smith had the written permission of his chief justice to do so. The northern law school’s dean had resigned suddenly, and the school had sought his help. The council’s executive director said the judge had wrongly placed himself in a position where he might be involved in political controversy. The council reprimanded Justice Smith.
The judge challenged the proceedings in Federal Court, and won; the court labelled the council’s behaviour abusive. Justice Smith won again at the Federal Court of Appeal, in a 3-0 ruling.
Steeves Bujold, president of the bar association, raised Justice Smith’s case when he appeared this spring at the Senate legal and constitutional affairs committee, as it conducted hearings on the disciplinary changes before they became law.
“The Federal Court denounced both the way the case had been managed and how the case ended,” Mr. Bujold told the committee. “No system is perfect. And any system in which peers pass judgment on a colleague can lead to miscarriages of justice.”
He urged the Senate to amend the proposed new rules to allow for an automatic right to appeal a disciplinary finding to a three-judge panel of the Federal Court of Appeal, cutting out the Federal Court for efficiency.
The Advocates’ Society, which has 6,000 lawyers and judges, made the same recommendation to the Senate committee. “The Canadian Judicial Council is the investigator, the decision-maker and the appellate authority with respect to allegations of judicial misconduct,” Sheree Conlon, an executive member of the society, told the committee during a spring hearing.
The Canadian Superior Court Judges Association, representing the 1,200 federally appointed judges, sent a letter in which it said it opposed the loss of the right to judicial review.
The Senate committee proposed amending the new law to allow judges to go to the Federal Court of Appeal.
“This would be an actual appeal to a real court,” Conservative Senator Denise Batters, who put forward the amendment, told The Globe.
Justice Minister David Lametti rejected the amendment.
He has repeatedly justified the end of automatic judicial review by pointing to the case of Michel Girouard, a Quebec judge who applied 24 times to Federal Court for a review of the judicial council’s fairness in its proceedings against him. He has since resigned.
“We are trying to eliminate that precisely because we have seen a rather celebrated case of a judge who kept appealing every single decision laterally to the Federal Court, and it ended up bogging the whole thing down and costing us a lot of money,” Mr. Lametti told the Senate committee.
The loss of a right to judicial review also may affect Canadians’ right to know what complaints are being made against whom, and how the judicial authorities are addressing them. Court hearings and documents are open to the public, but when complaints are being heard by the judicial council, it is the council that decides what, if anything, may be made public
In an interview with The Globe, Mr. Bujold stressed the transparency that courts provide. They are “held to a very high standard” of openness, he said.
The judicial council once described a recommendation for dismissal as “capital punishment” for a judge’s career. For years, the council fought in court against judicial review, only to have the Federal Court and Federal Court of Appeal throw the “capital punishment” quote back at it, and say that such a devastating penalty requires court oversight.