Canadian Lawyer

28 M A r C h 2 0 1 5 w w w . C A N A D I A N L a w y e r m a g . c o m The CJC has a published complaints procedure policy. Frivolous or meritless complaints about a judge are weeded out shortly after intake by the executive director. These may be complaints about things other than the judge's conduct, or otherwise fall outside the CJC's jurisdiction. Of the 555 letters received by the CJC in 2013-14, some 222 were identified in its annual report as "mandate" letters, indicating they were about matters outside the CJC's jurisdiction or mandate. A further 19 letters were simply deemed "irrational." Only 159 complaints resulted in opening a file in 2013-14 compared to 201 in the previous year. The CJC received fewer than 25 complaints a year in its first decade, rising steadily to pass 100 per year in 1990-91. For the next decade it averaged 167 com- plaints a year. That number hasn't changed dramatically since 2002. The CJC's web site has samples of complaints from each fiscal year going back to 1990-91 with a few paragraphs about each complaint. From 2003 to 2014, between two and nine complaints per year are summa- rized. From 1990 to 2002 an average of almost 23 cases a year were reported. Up until the CJC's 2001-02 fiscal year, its annual report published limited but useful information regarding the nature of the complaints and complainants, such as a breakdown of complainants by gender and complaints generated by subject mat- ter, such as criminal law, family law, and the number of complaints by in-person litigants (40-50 per cent). There was never any report- ing on the judges, courts, or provinces from which the complaints originated. In 2002-03, the CJC simply stopped reporting even lim- ited breakdowns of the complaints received or dealt with, only giv- ing the raw number of cases opened, closed, and still under review. The CJC is quick to point out in its materials that it is specifi- cally exempted from the Access to Information Act. The Judges Act further directs it to not disclose information connected with the investigation of a complaint where it is in the public interest, which turns out to be the vast majority of cases. While not a collegial pro- cess, some critics say the process is far too cozy with judges judging judges overwhelmingly behind closed doors. PURPOSEFULLY OPAQUE This opaqueness is on purpose. The CJC points to s. 17 of the United Nations General Assembly's "Basic Principles on the Inde- pendence of the Judiciary," which says initial stage examinations of judges shall be confidential. In the 2013 Federal Court of Appeal case Slansky v. Canada (Attorney General), the court said it serves four important functions: it avoids disclosure of unsubstantiated complaints that could undermine a judge's functional authority; it improves the overall effectiveness of the investigation process and encourages full and frank disclosure by the judge at an early stage; it protects privacy concerns of the judge; and it protects judicial independence. All good reasons, say some observers, but it leaves little room for a counterbalance of accountability and transparency. Complaints not rejected at intake are passed to the chairperson of the CJC, or one of the vice chairpersons, who can close the file as without merit, with or without the input of the judge complained of or his or her chief justice. Alternately the chairperson can refer the complaint onto the next stage, a review panel of three or five judges, which can also decide to close the file with or without a warning to the judge, or refer a complaint "serious enough to warrant removal" to the next stage, a full inquiry. It is the inquiry committee that can investigate and hire its own and independent counsel to assemble and present informa- tion. The inquiry committee is the first public stage of the process, where the judge and the complainant can attend and give evidence. A lawyer of at least 10 years senior- ity may be appointed to the inquiry committee by the minister of justice. The inquiry committee prepares a report, which goes to the full Canadi- an Judicial Council for discussion and decision as to whether it will finally recommend the removal of the judge by Parliament. The Canadian Judicial Council has only recommended three times to remove a judge from office since it was created in 1971. In reality, how- ever, as the CJC's web site points out, "Parliament has never had to face such a situation, but sometimes a judge will retire or resign before that step is taken." In April 2009, justice Paul Cosgrove resigned after the CJC recommended his removal for abusing his judicial powers during an Ontario murder trial that ended with Cosgrove staying the charge for a slew of sup- posed Charter violations. His misconduct was "pervasive in both scope and duration," said the CJC's final report to the minister of justice. By 2012, only eight inquiry committees had reported on the conduct of judges since the CJC's creation. The process is supposed to be inquisitorial rather than adver- sarial, but the judicial review process uncomfortably serves two masters — the integrity of and confidence in the judicial system and the rights of the judge under investigation. The CJC recently described this balancing act: "Public awareness and understanding of the judicial conduct review process is key to preserving public confidence in the judiciary. At the same time, the complaints process should not unduly undermine the privacy and reputation of the judge whose conduct is subject to review, which justify the requirements of procedural fairness." The seemingly unanswerable debate is what harms confidence in the judicial system more: deliberating in secret and keeping the vast majority of complaints away from prying eyes or reveal- ing all so the public can have confidence that the system works? Gavin MacKenzie, who chaired the Canadian Bar Association's committee that answered the CJC's call last year for submissions for reform, observed that every self-governing body is vulnerable to the criticism "that they protect members of their profession at the expense of the public, rather than acting in the public interest." Interestingly, many judges look upon the CJC with the same annoyance many lawyers have with the complaints process of their law society. With almost 1,200 judges and 160 complaint files opened a year, a not-so-surprising number of judges interviewed "[I]ndependent counsel is just that. It has no client and is acting in the public interest, not under the direction of the CJC." Earl ChErniak, former CJC independent counsel

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