Canadian Lawyer

just five superior court judges have been recommended for removal in the 145 years since Confederation, and all but one of those resigned to avoid the indignity of dismissal. But the ultimate fate of Slansky's com- plaint could change the way the CJC operates. "It's easier to get a constitutional " amendment than to remove a judge," says Rocco Galati, a Toronto lawyer represent- ing Slansky in the judicial review. "Judges are human beings. They don't descend from the sky or heaven, and some need to be removed. If the public knew the kinds of things some judges do, I think own dispute. But they don't seem too keen to apply that to themselves," he says. According to Hutchinson, judges would gain from opening up the process to outsiders and imposing a more rigor- ous discipline process. "We do treat them differently and it's a mistake. It does a disservice to ourselves as a democracy, and in a way, to the judges themselves. It's not doing them any favours to be seen as It's easier to get a constitutional amendment than to remove a judge. there would be more action taken. They make life hell not only for lawyers, but the people that have to come in front of them." The CJC's 39 members are the chief justices, associate chief justices, and senior judges from provincial and federal superior courts across Canada. Johanna Laporte, the CJC's director of communi- cations and strategic issues, insists that judges are in the best position to assess the conduct of their peers, because of their shared experience and the need to protect their independence. "I think it's an accepted principle of professional orders, and there's plenty of others that do it that way," she says. But Galati says judges are in a unique position compared with other self-regu- lating professions, such as lawyers or doc- tors. "No profession truly regulates itself, because they never have the final say, the courts do. But the courts have the final word on themselves and that's wrong. It's just not independent," he says. Allan Hutchinson, a professor at Osgoode Hall Law School, says the CJC should look for a way to include lay partic- ipation in the complaints process. "They're quite happy to laud over other professions and people the doctrine of natural justice, that nobody should be the judge in one's something of a secret elite beyond public control, and I think they would benefit if we started treating them like everyone else. Some judges are poor, and some are great," he says. "This is a very powerful group, and they have to have some kind of accountability, and the history of judicial discipline wouldn't " fill one with confi- dence about their ability to assure their ranks are appropriately staffed." In April 2009, Paul Cosgrove resigned from the bench after the CJC recom- mended his removal for abusing his judi- cial powers during an Ontario murder trial that ended with Cosgrove staying the charge for a slew of supposed Charter violations. His misconduct was "pervasive in both scope and duration," the CJC's final report to the minister of justice said. The previous year, a CJC inqui- ry committee recommended removing Ontario Superior Court Justice Theodore Matlow from the bench. It said his con- duct in opposing a development in his Toronto neighbourhood and later sitting on a three-judge Divisional Court panel that ruled against a controversial City of Toronto proposal for a streetcar right-of- way was "manifestly and totally contrary to the impartiality, integrity, and indepen- dence of the judiciary." A majority of the full judicial council agreed that Matlow's behaviour constituted misconduct, but overruled the removal recommendation. Only two other cases have reached the inquiry stage in the last decade, both involving Quebec judges who were ulti- mately allowed to remain on the bench. Only eight inquiry committees have reported on the conduct of judges since the CJC was created in 1971. Associate Chief Justice Lori Douglas Rocco Galati of the Manitoba Court of Queen's Bench will become the subject of a ninth after a review panel of five judges decided her salacious case could be serious enough to warrant removal. Her lawyer hus- band has already been sanctioned by the province's law society for sending pornographic pictures of Douglas to a client and suggesting he have sex with her. Douglas, who at the time of the allegations was still practising, stepped aside from her her judicial duties in the summer of 2010 when King's former cli- ent launched his complaint. Karen Busby, a law professor at the University of Manitoba, says the intense public interest in the case has been a fac- tor in the persistence of the Douglas mat- ter. "I'm surprised it's got that far because the facts are really straightforward, and in my view, she did nothing wrong. It should have been resolved at the initial complaints stage," says Busby. "At the same time, there is huge interest in the case and if they hadn't made the inquiry, then there could have been a cloud hang- ing over her, which would be very unfor- tunate. Perhaps the only way the air can be cleared is if the inquiry is carried out and the report is made public." Busby is also troubled by the length of time the case is taking to wind its way through the CJC process — the complaint against her was lodged in July 2010 — and compares Douglas' fate with that of another Manitoba judge roundly criticized for his comments in the sen- tencing of a sex offender in February 2011. Court of Queen's Bench Justice Robert Dewar came under fire for sug- gesting the victim of the sexual assault wore provocative clothing and labelling the accused a "clumsy Don Juan." The CJC closed the case after expressing its www.CANADIAN Lawyermag.com FEBRUA R Y 2012 35

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