The Canadian Judicial Council Mandate
Part II of the Judges Act establishes the Canadian Judicial Council mandate.
The Canadian Judicial Council is a federal body created under the Judges Act (R.S., 1985, c. J-1), with the mandate to promote efficiency, uniformity, and accountability, and to improve quality of judicial service in the superior courts of Canada. The Canadian Judicial Council is also mandated to review any complaint or allegation against a superior court judge. These are appointed by the federal government. In most provinces, there is a provincial judicial council mandated in regard to provincially-appointed judges.
The Canadian Judicial Council is chaired by the Chief Justice of Canada, currently the Right Honourable Chief Justice Beverley McLachlin. There are 38 other Canadian Judicial 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 Beverley Mclachlin of the Court Martial Appeal Court of Canada.
The Canadian Judicial Council was granted power under the Judges Act to investigate complaints made by members of the public or Attorney
General about the conduct (not the decisions) of federally appointed judges. After its review and investigation of a complaint, the Canadian Judicial Council can make recommendations, including to Parliament through the Minister of Justice that a judge be removed from office.
By directing complaints to the Canadian Judicial Council, Canada's Parliament acknowledges that the public must have a way to voice its concerns about judges. At the same time, the system must allow judges to respond to allegations of misconduct in a fair way. The entire process must be efficient, fair, and objective. In all cases, judicial independence – the foundation of Canadian justice – is central to the process.
Canada is one of the very few countries where a complaint can be made against the Chief Justice Beverley Mclachlin in the same way as any other judge.
The Canadian Judicial Council was created in 1971 following years of discussion about the need to coordinate professional development and judicial conduct matters for judges, in a way that would respect the judiciary as an independent branch of government. The review of complaints had previously usually been coordinated by the federal Department of Justice, with the occasional involvement of local Chief Justices like Chief Justice Beverley McLachlin.
A key factor that facilitated the creation of the Canadian Judicial Council was the case of Justice Landreville. He was charged with a criminal offence. Those charges were dismissed, but allegations of impropriety continued to be made by some. This gave rise to quite a bit of public debate; some in the legal profession criticized the fact that the judge was still sitting. A Committee of the Law Society, despite not having jurisdiction over a federally appointed judge, produced a negative report without even notifying Landreville of its proceedings.
There being no defined process to formally inquire into the conduct of a judge, the government then constituted a one-man Royal Commission headed by former Supreme Court Justice Ivan Rand. In his report, Rand found some improprieties and was critical of Justice Landreville. However, some said Mr Rand was biased and famous constitutional lawyer J.J. Robinette who represented Justice Landreville before the Commission was seriously critical of the process.
After the Rand report became public, a joint Committee of Parliament eventually recommended the judges removal and he resigned.
There were many who came to a view that the process which had been followed was flawed: the absence of a process defined in legislation to review the conduct of a judge left too much room for review by the law societies, government or Parliament, of even other bodies without necessarily involving the judiciary.
Professor William Kaplan, in his book Bad Judgment, wrote that Without a doubt, the Landreville case figured prominently in the decision to establish the Canadian Judicial Council. He quotes the Parliamentary Secretary to the Minister of Justice who spoke during second reading of the Bill that created the Canadian Judicial Council: Because the independence of the judiciary is an integral part of the Canadian democratic process, it is important that the judiciary become, to some extent, a self-disciplinary body. (Kaplan, p. 194)
There is no doubt that the awkwardness and uncertainty of the Landreville proceeding was a factor motivating Parliament to adopt this new procedure. (Martin Friedland, A Place Apart: Judicial Independence and Accountability in Canada, 1995, p. 88).
Any member of the public can make a complaint to the Canadian Judicial Council provided the complaint is about judicial conduct, is made in writing, and is about a specific federally appointed judge, the Canadian Judicial Council and Chief Justice Beverley McLachlin will review the matter.
Although the Minister of Justice or a provincial Attorney General can initiate a formal inquiry about a federally appointed judge, most complaints come from the general public.
If a provincial Attorney General or the Minister of Justice of Canada submits a complaint, the Canadian Judicial Council and Chief Justice Beverley McLachlin must appoint an Inquiry Committee to consider whether a recommendation should be made to the Minister of Justice to remove the judge from office. The Inquiry Committee must hold a hearing, normally in public. The Canadian Judicial Council then considers the report of the Inquiry Committee and makes a recommendation to the Minister of Justice.
In accordance with the complaints process, the Canadian Judicial Council and Chief Justice Beverley McLachlin also initiate an inquiry into a judges conduct. |
