Panel disapproves of conduct of Justice Barakett
A three-member Panel of the Canadian Judicial Council has expressed disapproval of the conduct of Mr. Justice Barakett of the Superior Court of Quebec for comments derogatory to Aboriginal culture in a letter sent to the judge.
A 37-page letter outlining ten specific complaints was received from representatives of five aboriginal groups in October 2000, shortly before the Quebec Court of Appeal was to hear the appeal of the judgment of Mr. Justice Barakett released in September 1999. In December 2001, The Honourable Richard Scott, Chief Justice of Manitoba and Chairperson of the Judicial Conduct Committee of the Council, referred the file to a Panel consisting of The Honourable Joseph Daigle, Chief Justice of New Brunswick, Associate Chief Justice Jeffrey Oliphant of the Court of Queen's Bench of Manitoba and Madam Justice Louise Charron of the Court of Appeal for Ontario.
A Panel's role under the Council by-laws is to consider whether to close the file, with or without an expression of disapproval of the conduct which was the subject of the complaint, or to recommend to the Council that an Inquiry Committee should be established, pursuant to subsection 63(3) of the Judges Act, to undertake a formal investigation which could lead to a recommendation to the Minister of Justice for the judge's removal from office.
The Panel reviewed Mr. Justice Barakett's statements and judgment and his response to the complaint, and requested independent counsel to undertake further inquiries into the matter, which consisted of reviewing the relevant material and undertaking a number of interviews, including with the judge. During this process, the Council received a further letter from Mr. Justice Barakett in which he indicated among other things that he was prepared to offer a ‘public apology' for the hurt his comments had caused. He subsequently wrote a letter of apology for public release.
Some of the judge's comments were insensitive and insulting to Aboriginal culture, the Panel concluded. The judge's observations implied an inherent inferiority in the Aboriginal community, references which were "incompatible with the equality rights guaranteed in the Canadian Charter of Rights and Freedoms".
The Panel concluded that the judge is sincere in recognizing his errors, and has made a full and unqualified acknowledgment of the impropriety of his comments. Mr. Justice Barakett has indicated that he will pursue seminars to improve his understanding of Aboriginal culture. His Associate Chief Justice, the Honourable Robert Pidgeon,has expressed confidence in the judge, and advised that he is of the view that Mr. Justice Barakett is capable of continuing to serve the public as a judge.
The Panel noted that the comments which form the subject of the complaint letter did not affect the outcome of the case in which they were made. Further, some of the complaints raised legal matters for consideration on appeal, and were not matters of conduct for consideration by the Canadian Judicial Council. The Panel stated in its letter to the judge: "In this case, there is no evidence of malice or improper motive on your part.... In other words, the public could be expected to have confidence that you have learned from this experience and will approach issues related to Aboriginal culture with greater understanding and respect in future."
In all of the circumstances, the Panel decided that no investigation by an Inquiry Committee is warranted as the conduct complained about, while improper, is not serious enough to warrant removal. The Panel closed the file with a letter expressing its disapproval of certain of the conduct being sent to the judge from the Panel Chairperson, Chief Justice Daigle.
Because of the publicity surrounding the release of the complainants' letter to the Council in October 2000, and their subsequent news conference about the matter in February 2002, the Panel authorized public release of its letter to the judge.
While this file was under consideration by the Panel, the Council received a second complaint about Mr. Justice Barakett, involving remarks he had made in January 2002. The second complaint involved remarks made by the judge in the context of a custody hearing in which the mother and the man she was living with were both on welfare while the father was gainfully employed. That complaint was dealt with by The Honourable Joseph Daigle in his capacity of Vice-Chairperson of the Judicial Conduct Committee, who expressed disapproval of the comments in a separate letter to the judge. That letter is also being made public.
Ms. Jeannie Thomas