Decision made in a complaint against the Honourable David Near
Ottawa, 5 April 2012 - The Canadian Judicial Council has announced the results of its review of a complaint involving the Honourable David Near of the Federal Court. The complaint alleged that Justice Near was in a real or apparent conflict of interest about a case and should have recused.
In accordance with Council's Complaint Procedures, the complaint was reviewed by the Honourable Richard Scott, Chief Justice of Manitoba and Chairperson of the Judicial Conduct Committee. Chief Justice Scott considered all of the issues, including the allegation that Justice Near's professional experience with the government, before he became a judge, created a real or apparent conflict in deciding a case in which the federal government was a party.
After reviewing all the facts, Chief Justice Scott dismissed the complaint. He emphasized that questions of conflict of interest and recusal are legal issues and are not usually questions of judicial conduct. Parties who have concerns in regard to real or perceived conflict on the part of a judge should raise these concerns in court. In this case, no issue of conflict of interest was raised before the courts.
Judges bring to the Bench varied and extensive experience, from both the private and public fields. Some judges, prior to appointment, may have served within government while others may have had some association with a political party or other organization. This does not automatically create conflicts of interest. Chief Justice Scott remarked that judges sometimes face situations where there may be doubt or different views about a real or apparent conflict of interest. In those cases, judges are encouraged to disclose, in Court, any fact that might support a reasonable argument for the judge's recusal. That said, the judge is the person best placed to decide how to proceed. Other than exceptional cases, such as bad faith or negligence, these are not questions of judicial conduct.
In this case, Chief Justice Scott noted that the judge had no prior knowledge of the matters relating to complainant's litigation, either before or after the matter came before the courts. In fact, Justice Near's prior professional experience was unrelated to the subject matter of the litigation before the courts. Justice Near's professional experience is well known in the legal community and is outlined on the Federal Court's website.
In this context, and given that there was no evidence whatsoever of any improper motive on the part of the judge, Chief Justice Scott dismissed the allegations.
More information about the Council, including its Complaints Procedures, can be found on the Council's website at www.cjc-ccm.gc.ca.