Canadian Lawyer

Council's complaints review panel, says the public should not be worried by the low number of cases in Canada. "It's quite different than, say, parts of the U.S., where you have elected judges that sometimes do much more bizarre things," he says. "I would think that if there were dishonest judges, someone in the system would be on them, and the other judges would start to do something. And if someone's getting lazy, it's certainly up to the chief justice to give them a kick." Scott's decision to dismiss was based, arguing the report was privileged. In April 2011, Federal Court prothonotary Martha Milczynski ordered the CJC to turn over a redacted copy of the report, although that decision was appealed by the CJC. "I am satisfied that there is a public interest in knowing how the CJC deals with complaints against judges to ensure the public has confidence in the integrity of the process and to also ensure that the application for judicial review can be conducted in a meaningful way," Milczynski wrote. "The process has to be transparent and it has to be effective. It doesn't mean they have to find against the judge, but it can't be this secretive. It's nonsense," says Galati. Laporte says the CJC is working on Hutchinson says the number may be artificially shrunk in Canada because judges are more inclined to take the tra- ditional path of falling on their own sword in the face of a meritorious complaint or an informal expression of concern from superiors and colleagues. Again, he says the profession could benefit from a more transparent approach to discipline. "I don't think for a second [there is] rampant impropriety among judges in Canada, but who would know," he says. Neil Skinner, executive legal counsel to Alberta's provincial court, says he remem- bers a case where the secrecy of the pro- cess worked against the judge facing a complaint. "Once it goes to the council, it's like a black box, which is a shame, because if the media could have read the stuff, they would have seen why there was no basis for the complaint, but we couldn't even defend the guy if we wanted to," he says. Even so, "I'm not sure if any of the judges want to be more transparent," says Skinner. In the Slansky case, matters have been held up because the CJC refused to hand over a report by University of Toronto law professor Martin Friedland, upon which Manitoba Chief Justice Richard improving its public disclosures. She says from time to time it publicizes criticism of judges in cases where the judge's behav- iour falls short of misconduct, such as in the recent case of Manitoba's Dewar. In his report, Alberta Chief Justice Neil Wittmann said Dewar showed a "lack of sensitivity towards victims of sexual assault" over comments in his sentencing of a sex offender that seemed to cast some blame on the victim. But comments are only publicized in higher profile cases where the media has already shown an interest. The council's annual report does not include descrip- tions of all resolved complaints. "Council wants to be transparent, and we're work- ing towards changing the way we com- municate complaints on the web site," says Laporte. Porter says he understands why judi- cial councils are sparing with the amount of public sanctions they hand out to judg- es. "I'm quite struck by the fact that if you reprimand a judge, it certainly is some- thing the judge can never get away from. It isn't as if it ever goes away," he says. Karen Selick, the litigation director of the Canadian Constitution Foundation, says repeatedly poor judges shouldn't be stuck with the stigma of reprimands or other findings against them. Instead, "we should fire them," says Selick, who believes sanctions should not be reserved only for issues of misconduct, but also for issues of quality. "I don't see why in this occupation you should be exempt form losing your job. There's lots of people waiting to fill those jobs, and there's no guarantee that the ones doing a bad job are going to do a better job than the ones who weren't appointed," she says. In September 2011, Ontario Court Justice John Ritchie was barred from a drinking-and-driving case after a Superior Court justice found he appeared biased against the defendant. The Superior Court judge decided an informed and reason- able observer would conclude that Ritchie had prejudged his rejection of a Charter application. It was the second time in seven years that Ritchie received a serious rebuke on appeal, since in 2004, another superior court judge overturned his con- viction in such a case because of the judge's use of "boilerplate" reasons. "This is the second time his honour has had to be reminded by an appeal court to approach trials fairly and of the overarching importance of justice being seen to be done and not only being done," said Paul Burstein, president of the Criminal Lawyers' Association at the time. "If anyone else shirked their employment responsibilities in such a fundamental way, they'd risk being termi- nated or suspended." If Selick had her way, that would change. "Judges who get things wrong, necessitating appeals that overturn their decisions, should perhaps face some con- sequences other than the shame of being reversed," she says, adding she would like to see judicial feedback programs in use in U.S. states such as Arizona and Florida, adapted to give Canadian lawyers and litigants a chance to rate their judges. Consistently poor performers would then be removed from the bench. Frank Addario, a former president of the CLA, says chief justices should have more powers to tackle the small minority of problem judges. "The court has an obligation to provide a certain level of service, and there's no threat to judicial independence if the chief justice is empowered to prevent low-grade ser- vices being provided," he says. "It can't be the case that someone is immune from repeated correction by appellant courts." www.CANADIAN Lawyermag.com FEBRUA R Y 2012 37

• Cover