Wednesday, November 11, 2015

How To Remove a Federally-Appointed Judge in Canada

With the shocking behaviour of Alberta Provincial Court Judge Robin Camp (since appointed to the Federal Court by Peter MacKay in a last gasp list of 2015 judicial appointments before the election), there is much confusion about how to actuallt discipline and/or remove a sitting federally-appointed judge. 

The long-standing traditional of judicial independence that goes back to 1703 means judges are secure from arbitrary dismissal or political interference. That is an important safeguard of both justice and democracy.

But what happens when a judge's behavour questions their fitness to remain on the bench? The following is an extract from my article in Canadian Lawyer Magazine from May, 2015 that discusses the procedure in Canada.

The Canadian Judicial Council was created in 1971 under the Judges Act with “the mandate to promote efficiency, uniformity, and accountability, and to improve the quality of judicial service in the superior courts of Canada.” The most significant part of the CJC’s legislative mandate is to review any complaint or allegation made about any of the more than 1100 federally appointed judges. It created a procedural framework for dealing with complaints. 

The Canadian Judicial Council is chaired by the Chief Justice of the Supreme Court of Canada, who presides over 38 other Council members, who are the chief justices and associate chief justices of Canada’s superior courts, the senior judges of the territorial courts, and the Chief Justice of the Court Martial Appeal Court of Canada. There are no lay members on the CJC.

Complaints against sitting judges come from a variety of sources. In the age of self-representation, a number come from litigants or the criminally accused, unhappy with their up close and personal encounters with the pointy end of justice. Some come from members of the public unhappy with the actions or comments of judges as reported in the media. Others come from members of the legal profession unhappy with their interactions with the judiciary. Under the statute, requests to review a judge’s conduct can also come from a provincial Attorney General or the federal Minister of Justice. Complaints can be made anonymously. 

The CJC has a published complaints procedure policy. Frivolous or meritless complaints about a judge are weeded out shortly after intake by the Executive Director. These may be complaints about things other than the judge’s conduct, or complaints that do not fall under the CJC’s jurisdiction. Of the 555 complaint letters received by the CJC in 2013-14, some 222 were classified in their Annual Report as “mandate” letters, indicating they were not about matters within the CJC’s jurisdiction or mandate. A further 19 letters received by the CJC were simply deemed “irrational”. 

The CJC received fewer than 25 complaints a year in its first decade, rising steadily to pass 100 per year in 1990-91. For the next decade it averaged 167 complaints a year. That number hasn’t changed dramatically since 2002.

Complaints not rejected at intake are passed to the Chairperson of the CJC, or one of the Vice Chairs, who can close the file as without merit, with or without the input of the judge complained of or his or her Chief Justice. Alternately the Chairperson can refer the complaint onto the next stage, a Review Panel of three or five judges, which can decide to refer a complaint to a full inquiry. It can’t call witnesses or compel the production of documents, but can ask for the assistance of outside counsel. It too can close the file and write a warning letter to the judge about any concerns regarding his or her behaviour but otherwise cannot take any disciplinary action.

If the Review Panel feels the “matter may be serious enough to warrant removal” it will refer a complaint to an Inquiry Committee, which can investigate, and hire its own and independent counsel to assemble and present information. This has only been done 8 times since 1971. The Inquiry Committee normally holds a public hearing, where the judge and the complainant can attend and give evidence about the matter that led to the complaint. The Inquiry Committee prepares a report, which goes to the full Canadian Judicial Council for discussion and decision as to whether it will recommend the removal of the judge by Parliament.

The Canadian Judicial Council has only recommended three times to remove a judge from office since it was created in 1971. In reality, however, as the CJC’s website points out, “Parliament has never had to face such a situation, but sometimes a judge will retire or resign before that step is taken.”

© Stephen Lautens 2015

Monday, November 9, 2015

The Man Who Enjoyed Vimy Ridge

As far as I know, we only have one war hero in the family - my great great uncle Harry Ellwood George. He was my paternal grandmother's uncle. His family were the Georges, who came to Canada in the 1840s from Hessen, Germany. By 1914 they were Canadian enough for Harry to volunteer in Saskatoon for active service to fight against his parents' homeland (having changed their name from "Georg" to the more British-sounding "George").

And serve he did - Hill 60, the Somme, Paschendaele and Vimy, and a lot of places in between. He was wounded, declared dead for a week and rose from private to the rank of Lieutenant before retiring a Captain and dying in the 1950s as a reservist Colonel. He constantly survived the middle of the various meat grinders of The Great War while others weren't so lucky, and as the most senior man left standing he rose through the ranks. No shirker, he picked up a bullet and a piece of shrapnel that left one arm almost useless at war's end. And he was "mentioned in dispatches" for something gallant, although we don't know what.

One quote from his letter home after being in the thick of the fighting at Vimy Ridge gives you a sense of the man:

"Vimy Ridge was the best fight I have been in. Our casualties were light and I really did enjoy it. We made three attacks in the week. It was great to go over the top at them, and there seems to be no thought of danger.”

So there you have it - a relative of mine actually enjoyed the battle of Vimy Ridge.

Through it all he didn't have any animosity towards the Germans. They were just doing their duty trying to kill him as he was trying to kill them. They cheerfully waved at each other over the parapets when a shot went wide to let the enemy know they had missed. He was full of less love for the French villagers, who he saw as sullen, unhelpful and willing to jack up the price of an egg when the buyer was in uniform.

I never knew him, but he came home and readapted quickly to civilian life. Was he tormented by the war that took most of the friends he had signed up with? Who knows? It was before my time, but people who knew him said he remained kind and funny until a heart attack spectacularly took him away while driving, and he and his car went over the side of a bridge.

Here's to you Harry.

Tuesday, November 3, 2015

Women in Politics

With the ridiculous fuss being raised about Justin Trudeau seeking gender parity in his new cabinet, I remembered I wrote a column back in 2008 about the value of women politicians. It was in the wake of Foreign Affairs Minister Maxime Bernier leaving sensitive documents at his girlfriend's house. It was also before Bev Oda and her $16 orange juice and stay at the Savoy proved me wrong...


Vote For Your Local Woman

The resignation of former Foreign Affairs Minister Maxime Bernier has been splashed all over the papers, with the predictable denials, half-apologies, accusations of a witch-hunt, frame-up and cover-up.

The whole thing has led me to one sad conclusion – men are not temperamentally suited for politics. Let’s face it, men have never really been good at getting things done. We’ll start a lot of things, but how many do we actually finish?

The part of politics that involves strutting around and making promises we don’t intend to remember let alone keep, that part we’re good at. We’re also good at standing in the Commons or Legislature and insulting other men, and then challenging them to say it outside. Photo-ops, self-congratulatory speeches, we’ve got that covered. In short, any of the peacock-type aspects of politics, men are your man, so to speak.

But if you want anything of substance done, we all know you have to give it to a woman. If it is difficult, dirty and thankless, a woman is your man. And if it’s a question of judgment, my money is on the opposite sex any day of the week.

And back to the topic of sex, I bet we’d have a lot fewer sex scandals in politics if women ran the show. Can you imagine Margaret Thatcher with a boy toy, or Indira Gandhi? Do you think Hillary would have been caught with a frowsy political aide in the Oval office like husband Bill Clinton? Most of the time men have one thing on their mind – two if it is dinnertime. In spite of movies like “Sex in the City”, most women of my acquaintance unfortunately are not consumed 24 hours a day with thoughts of a frisky nature.

Now, I know a woman was involved in the current “Mad Max” scandal, but no one is questioning her judgment. Okay – maybe dating a Conservative cabinet minister doesn’t show the best taste, but secret government documents weren’t the kind of political briefs at the heart of her relationship.

I think women politicians would also be less likely to forget sensitive documents and leave them lying around. Women know where things are and where to find them in any household, and since men are lacking in their domestic duties, it’s unlikely we’ll find any lost items while cleaning.

One thing is for sure, women also have a clearer sense of what is actually needed. I have no doubt that a government run by women would solve more of our social problems in a month than the last ten governments combined. You can bet that the healthcare and education crises would be fixed, and we’d have a national system of daycare by next Thursday at the latest.

Corruption in high places? Not in a female government. Once you take sex and booze out of the equation, I think you’ll find that drops off too. High priced travel junkets? Not going to happen. When was the last time a woman took a selfish vacation when everyone catered to her instead of her ending up in a kitchenette in another country?

The justice system would be cleaned up in a hurry as well. I think most families were like mine – if you had to confess to some minor infraction, you tried to get dad to deal with it before mom found out. No one liked to face the wrath of mom. She could have run on a law and order ticket.

The problem is getting men to vote for someone who is that good for us.

© Stephen Lautens 2008