The inquiry into the conduct of Justice Russell Brown of the Supreme Court and his recent resignation have shone a light on the process for examining the conduct of judges. This process underwent significant changes in June. Here’s a look at the new process.
More nuanced sanctions
Justice Brown’s case exposed the flaws of the previous system for examining judges’ conduct: it could only have two results, either the investigation was abandoned, or it led to the judge’s removal from office. The process was also very slow.
Parliamentarians were aware of these problems and were working on solutions for several years. Finally, a new law was adopted in June. It offers a range of new sanctions to address cases where the judge’s misconduct does not warrant removal from office.
A judge who is found to have misbehaved can now:
- receive a private or public warning,
- receive a private or public reprimand,
- be ordered to apologize either privately or publicly, or
- be ordered to take specific measures, such as attend counselling or take a continuing education course.
Who decides?
Just as under the previous process, it is the Canadian Judicial Council that handles complaints. The Council consists of all the Chief Justices and Associate Chief Justices named by the federal government. Two Quebec courts, the Superior Court of Québec and the Quebec Court of Appeal, are represented on the Council.
How are complaints processed?
When a person wishes to make a complaint about a judge, they must file it with the Canadian Judicial Council. The processing of complaints involves several stages.
To begin with, a screening officer examines the complaint and can dismiss the complaint if it:
- is frivolous, vexatious or represents an abuse of procedure,
- is unrelated to the judge’s illness, misconduct, failure to carry out their duty properly, or any other situation incompatible with serving as a judge, or
- does not meet the other screening criteria specified by the Council.
If the screening officer does not dismiss the complaint, the judge in question is given the opportunity to present their side of the story to a Council member who has been chosen to review the complaint. This member can also decide to dismiss the complaint.
If the Council member does not dismiss the complaint, it will be considered by a review panel consisting of a Council member, a judge and a layperson. The review panel could impose one of the new sanctions mentioned above. If the review panel decides that the judge’s removal from office may be warranted, it refers the complaint to the Council for the establishment of a full hearing panel which will decide the case.
A judge who receives an unfavourable decision has the right to appeal it.