Ottawa , July 31 2020

Open Letter to Canadians from the Canadian Judicial Council

The Canadian Judicial Council is the body that oversees federally-appointed judges in Canada. These are the judges who sit on superior courts and courts of appeal. There are over 1200 such judges in Canada.

The Council has the responsibility to deal with all complaints about the conduct of federally-appointed judges. It receives approximately 700 complaints each year. Each one is carefully considered and treated with care and sensitivity, so that outcomes reflect the public interest. In recent years, the Council has brought improvements to the process, including the involvement of lay persons (non-lawyers and non-judges).

The task is rarely straightforward. Always, we are called upon to balance being fair to the judge and being responsive to the complainant. Consider just two of many examples:

  • After enduring the enormous toll of an emotional trial, the litigants face the agonizing wait for their judge to deliver a decision. They are left waiting nine months, three months longer than the timeframe recommended by the Council. When we ask the judge for an explanation, we learn that they have been completely swamped with work, hearing cases by day, while trying to write decisions in the evenings and weekends. The judge deeply regrets the delay and relays a sincere apology to the complainants
  • A very good judge has had a bad day, as all of us sometimes do. Emotions are high, and the judge, in an effort to control a very challenging process, says something regretful. The judge is instantly and deeply apologetic. Yet the sting felt by the targeted litigant is enormous.

The Council thoughtfully handles these types of scenarios day in and day out. In doing so, we are always reminded of the enormous trust placed in us -- a trust that is rooted in the constitutional imperative that judges must never be subjected to outside influences. This includes never being at the mercy of the government or any other institution in considering conduct matters.  This means that only fellow judges can process these complaints.  This is the main job of the Council.  In performing this important work, we are always mindful that the public must trust us to handle all complaints thoroughly and fairly. It can never appear that we are simply protecting our own.

The Council takes great pride in this aspect of its work.

However, when it comes to those rare circumstances where a judge’s conduct may be serious enough to warrant their removal from the bench, the Council has been labouring under a seriously flawed legislative framework.  This aspect of the process, involving a full inquiry followed by a removal recommendation from the Council to the Minister of Justice, is regrettably sometimes necessary, in the public interest. That is why the Council has pleaded with successive governments to enact the required reforms.

Specifically, over the past decade, we have all witnessed public inquiries that have taken far too long and have been far too expensive. We have witnessed countless applications for judicial review, covering every imaginable aspect of the process. These have been enormously time-consuming, expensive and taxing on our federal courts. Furthermore, all costs, including those incurred by the judge who is at the centre of the inquiry, are fully funded by the taxpayer. The  judge at issue continues to receive full salary and pension benefits as time passes. This leaves the perception that the judge benefits from these delays. Highlighting this problem, we refer to a painfully obvious pattern, as opposed to any individual case: a pattern that is contrary to the public interest and access to justice.

For over a decade now, the Council has implored successive governments to fix this problem. In 2013, the Council launched a public consultation to hear from Canadians as to how the process could be improved. This resulted in some streamlining measures and to greater efficiency. However, these efforts were limited to the parameters of our internal by-laws and could not address the root problems in the Judges Act. Instead, any meaningful solution requires the legislative reform that the Council has so persistently sought.

Since becoming the Chief Justice of Canada in December of 2017, the Council Chairperson, the Right Honourable Richard Wagner, while not involved in any individual conduct case, has championed this much-needed push for legislative change. In fact, his efforts have been recognized by the Prime Minister of Canada, who in his December 13, 2019 mandate letter, directed the Minister of Justice to:

“Develop proposals for reform of Canada’s system of judicial governance and discipline.”

Our Chairperson has collaborated with the Canadian Superior Courts Judges Association in an effort to further urge the present Government to enact the required legislative changes.

In January of this year, these efforts paid off when, after much effort and mutual accommodation and compromise, the Association and the Council (in collaboration with the Department of Justice) reached an agreement on all major aspects of a proposed new reform package. Furthermore, the Council and the Association agreed to provide individual submissions to the Department on any remaining tangential issues.  It was expected that legislation reflecting this consensus would be promptly advanced by the Government. In fact, but for the complications presented by the Covid-19 outbreak, this legislation would likely have been passed by now.

The need to pass these reforms is urgent, and the Council has been calling on the Government to do so. We trust that all Canadians will recognize how important and necessary this is.

The Council will continue to work to maintain and improve the quality of judicial services in our courts.

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