Judges

Most of the judges dealt within this guide are judges of the Superior Court of Ontario, and those 'above' them in the Ontario Court of Appeal. These judges are appointed under s.96 of the Constitution Act. There are numerous other types of judges appointed under Ontario's Courts of Justice Act (family, criminal and small claims court), and under the Federal Court Act and Supreme Court of Canada Act.

Functus Officio
Seizing Jurisdiction
Judges As Advocate
Judicial Independence

. Girouard v. Canada (Attorney General)

In Girouard v. Canada (Attorney General) (Fed CA, 2020) the Federal Court of Appeal broadly canvassed the role of judges and the Canadian Judicial Council in a judicial review by a judge relating to his conduct:

[25] Judicial independence is one of the pillars upon which the Canadian Constitution rests and one of the foundations of democratic societies. It is entrenched in the preamble to the C.A., 1867, in section 11(d) of the Charter, and in unwritten constitutional principles. It has been discussed by the Supreme Court in numerous judgments in various contexts over the past 40 years, and its importance no longer needs to be demonstrated: see, in particular, Valente v. The Queen, 1985 CanLII 25 (SCC), [1985] 2 S.C.R. 673; The Queen v. Beauregard, 1986 CanLII 24 (SCC), [1986] 2 S.C.R. 56; Ruffo v. Conseil de la magistrature, 1995 CanLII 49 (SCC), [1995] 4 S.C.R. 267 [Ruffo]; Ref re Remuneration of Judges of the Prov. Court of P.E.I.; Ref re Independence and Impartiality of Judges of the Prov. Court of P.E.I., 1997 CanLII 317 (SCC), [1997] 3 S.C.R. 3; Therrien (Re), 2001 SCC 35, [2001] 2 S.C.R. 3 [Therrien]; Moreau-Bérubé v. New Brunswick (Judicial Council), 2002 SCC 11, [2002] 1 S.C.R. 249 [Moreau-Bérubé]; Mackin v. New Brunswick (Minister of Finance); Rice v. New Brunswick, 2002 SCC 13, [2002] 1 S.C.R. 405; Ell v. Alberta, 2003 SCC 35, [2003] 1 S.C.R. 857; Provincial Court Judges’ Assn. of New Brunswick v. New Brunswick (Minister of Justice); Ontario Judges’ Assn. v. Ontario (Management Board); Bodner v. Alberta; Conférence des juges du Québec v. Quebec (Attorney General); Minc v. Quebec (Attorney General), 2005 SCC 44, [2005] 2 S.C.R. 286; Conférence des juges de paix magistrats du Québec v. Quebec (Attorney General), 2016 SCC 39, [2016] 2 S.C.R. 116 [Conférence des juges de paix magistrats].

[26] The objective guarantees of judicial independence—security of tenure, financial security and administrative independence—are intended to promote public confidence in the administration of justice and to ensure the rule of law and the separation of powers. As stated by the Supreme Court in Conférence des juges de paix magistrats, "“. . . judicial independence belongs not to judges, but to the public”" (at para. 33). Similarly, this Court stated the following in Cosgrove v. Canadian Judicial Council, 2007 FCA 103, [2007] 4 F.C.R. 714 at paragraph 32 [Cosgrove]:

. . . judicial independence does not require that the conduct of judges be immune from scrutiny by the legislative and executive branches of government. On the contrary, an appropriate regime for the review of judicial conduct is essential to maintain public confidence in the judiciary: Moreau‑Bérubé v. New Brunswick (Judicial Council), 2002 SCC 11, [2002] 1 S.C.R. 249, at paragraphs 58-59.

[27] It is from this perspective that the Council was created in 1971, through amendments to the Act. Aware that it is not always easy to determine when the obligation of good behaviour under section 99 of the C.A., 1867 has been violated as well as which type of misconduct is serious enough to warrant the removal of a judge, Parliament created this body, which consists of all of the chief justices, senior associate chief justices, and associate chief justices of the superior courts. These provisions are now found in Part II of the Act, and one of the Council’s important objects is to investigate the conduct of judges (paragraph (60)(2)(c)). To fulfill this mandate, the Council investigates allegations of misconduct. When the allegations are serious enough to warrant a full inquiry, the Council conducts such an inquiry, at the end of which it provides a report to the Minister of Justice. In accordance with subsection 65(2), the Council may recommend the removal of a judge where, in its opinion, the judge has become incapacitated or disabled from the due execution of the office of judge by reason of

(a) age or infirmity,

(b) having been guilty of misconduct,

(c) having failed in the due execution of that office, or

(d) having been placed, by his or her conduct or otherwise, in a position incompatible with the due execution of that office.

[28] The Act is not explicit as to the procedure the Council must follow when investigating the conduct of a judge. It only provides that the Council may constitute an inquiry committee comprising one or more of its members together with such members, if any, of the bar, as may be designated by the Minister (subsection 63(3)). The parameters of the federal judiciary’s disciplinary process can, for the most part, be found in the 2015 By‑laws, enacted under the authority of paragraph 61(3)(c) of the Act, as well as in the Handbook of Practice and the Council’s Complaints Procedures.

[29] At paragraphs 47 to 65 of its reasons, the Federal Court aptly described the inquiry process and the respective roles of the review panel, the inquiry committee and the Council, such that there is no need for me to describe them again in detail. I will simply draw attention to certain aspects of the process, for a better understanding of what follows.

[30] A distinction must be drawn between inquiries and investigations. When the Minister of Justice or the attorney general of a province requests an inquiry into the conduct of a judge in accordance with subsection 63(1) of the Act, as was the case for the second inquiry, the Council must in principle conduct such an inquiry without going through the review panel step. This will apply unless the request does not allege bad faith or abuse of office, and does not on its face disclose an arguable case for removal: Cosgrove, at paragraph 52. However, for an investigation, any person may file a complaint against a judge: in such a case, the chairperson or vice‑chairperson of the Council’s Judicial Conduct Committee briefly examines the complaint and submits it to a review panel if he or she determines that the complaint might warrant the removal of the judge (2015 By‑laws, subsection 2(1)). This is the process that was followed for the first complaint, which was filed by the Chief Justice of the Superior Court of Québec.

[31] It is important to mention that the sole function of a review panel is to determine whether the complaint might be serious enough to warrant the removal of the judge. If so, an inquiry committee will be constituted and will consider the review panel’s written reasons and statement of issues (2015 By‑laws, subsection 5(1)).

[32] Subsection 63(3) of the Act provides that an inquiry committee comprises one or more of the Council’s members together with such members, if any, of the bar, as may be designated by the Minister of Justice. Subsection 3(1) of the 2015 By‑laws stipulates that an inquiry committee is composed of an uneven number of members, the majority of whom are from the Council. In practice, these committees consist of five people (three Council members and two members of the bar), and more rarely of three people (two Council members and one member of the bar). Under subsection 3(4) of the 2015 By‑laws, "“a member of the . . . Review Panel who participated in the deliberations to decide whether an Inquiry Committee must be constituted”" may not be a member of the inquiry committee. Lastly, section 4 of the 2015 By‑laws gives the inquiry committee the authority to engage legal counsel and other persons "“to provide advice and to assist in the conduct of the inquiry”".

[33] An inquiry committee must conduct its inquiries or investigations in accordance with the principle of procedural fairness (2015 By‑laws, s. 7). Among other things, it must inform the judge of all complaints or allegations against him or her and allow the judge to respond fully to them (2015 By‑laws, subsections 5(2) and (3)). The judge subject to an inquiry or investigation, also has the right to be heard and to be represented by counsel (the Act, s. 64).

[34] After hearing the parties, the inquiry committee submits a report to the Council setting out the results of the inquiry and its findings as to whether a recommendation should be made for the judge’s removal. Only Council members who did not participate in the review panel or the inquiry committee or in any other previous step of the process may participate in the consideration of the inquiry committee’s report and in the deliberations (2015 By‑laws, s. 11). The Council may refer all or part of the matter back to the inquiry committee if it is of the opinion that the committee’s report requires a clarification or that a supplementary inquiry or investigation is necessary (2015 By‑laws, s. 12). After reviewing the committee’s report and the judge’s written submissions, the Council determines whether the impugned conduct meets the criteria set out in subsection 65(2) of the Act and whether a recommendation for the judge’s removal should be made to the Minister of Justice.

[35] That is an overview of the steps in the removal process, which is triggered by the filing of a complaint against a judge. As stated earlier, the review panel step is not required when the Minister or a provincial attorney general requests the constitution of an inquiry committee. It is then up to the Minister to determine whether to ask Parliament to remove the judge; this decision rests with the Minister, who is not bound by the Council’s recommendation.

[36] Before concluding this description, it is worth noting that the role of the Council and its committees is not to resolve a dispute between parties, much less to rule on the criminal culpability of a judge. Paragraph (60)(2)(c) of the Act provides that an object of the Council is to make the inquiries and the investigation of complaints or allegations and to make recommendations, like any commission of inquiry: see Douglas v. Canada (Attorney General), 2014 FC 299, [2015] 2 F.C.R. 911; Taylor v. Canada (Attorney General), 2001 FCT 1247, [2002] 3 F.C. 91, aff’d 2003 FCA 55, [2003] 3 F.C. 3, leave to appeal to S.C.C. refused, 2978 (September 25, 2003). The Supreme Court was very clear in this regard in Ruffo. While the comments made in that matter were in the context of the disciplinary process established by the Courts of Justice Act, CQLR, c. T‑16 (Courts of Justice Act), the relevant provisions of that regime are substantially to the same effect as the corresponding sections of the Act. It is relevant to reproduce the comments of the Court, which were also restated in Therrien (at para.103):

. . . Accordingly, as the statutory provisions quoted above illustrate, the debate that occurs before it does not resemble litigation in an adversarial proceeding; rather, it is intended to be the expression of purely investigative functions marked by an active search for the truth.

In light of this, the actual conduct of the case is the responsibility not of the parties but of the Comité itself, on which the [Courts of Justice Act] confers a pre‑eminent role in establishing rules of procedure, researching the facts and calling witnesses. Any idea of prosecution is thus structurally excluded. The complaint is merely what sets the process in motion. Its effect is not to initiate litigation between two parties. This means that where the Conseil decides to conduct an inquiry after examining a complaint lodged by one of its members, the Comité does not thereby become both judge and party: as I noted earlier, the Comité’s primary role is to search for the truth; this involves not a lis inter partes but a true inquiry in which the Comité, through its own research and that of the complainant and of the judge who is the subject of the complaint, finds out about the situation in order to determine the most appropriate recommendation based on the circumstances of the case before it. (Emphasis added.)

Ruffo, at paragraphs 72-73.

. Nova Scotia (Attorney General) v. Judges of the Provincial Court and Family Court of Nova Scotia

In Nova Scotia (Attorney General) v. Judges of the Provincial Court and Family Court of Nova Scotia (SCC, 2020) the Supreme Court of Canada considered the court production of confidential Cabinet documents for purposes of a judicial review regarding judicial salaries, which is governed by a 'Bodner' review established in the sister case of British Columbia (Attorney General) v. Provincial Court Judges’ Association of British Columbia (SCC, 2020). The procedures for a Bodner review [stemming from the SCC case of Bodner v. Alberta, 2005 SCC 44] are set out here:

[28] Thus, the party seeking to have the confidential Cabinet document produced must first establish that there is some basis to believe that the document may contain evidence which tends to show that the government failed to meet one of the requirements described in Bodner, understood, as they must be, as building on Beauregard v. Canada, 1986 CanLII 24 (SCC), [1986] 2 S.C.R. 56, and the Provincial Judges Reference. Only then will the government be required to produce the document for judicial inspection. Having inspected the document, the reviewing court determines whether the document in fact provides some evidence which tends to show that the government failed to comply with a requirement described in Bodner. If the document provides such evidence, the court can order production as part of the record, subject to public interest immunity or any other applicable rule of evidence invoked by the government.

. British Columbia (Attorney General) v. Provincial Court Judges’ Association of British Columbia

In British Columbia (Attorney General) v. Provincial Court Judges’ Association of British Columbia (SCC, 2020) the Supreme Court of Canada considered the court production of confidential Cabinet documents for purposes of a judicial review over judicial salaries, which is governed by a 'Bodner' review:

[5] In its judicial independence case law, this Court has consistently sought to strike a balance between several competing constitutional considerations by establishing a unique process for setting judicial remuneration, backed up by a focused, yet robust form of judicial review described in Bodner v. Alberta, 2005 SCC 44, [2005] 2 S.C.R. 286.[1] In resolving this appeal, the rules of evidence and production must be applied in a manner that reflects the unique features of the limited review described in Bodner, and respects both judicial independence and the confidentiality of Cabinet decision making.

[6] For the reasons that follow, where a party seeking Bodner review requests that the government produce a document relating to Cabinet deliberations, it must first establish that there is some basis to believe that the document may contain evidence which tends to show that the government failed to meet one of the requirements described in Bodner. Only then would the government be required to produce the document for judicial inspection. If the document does in fact provide some evidence which tends to show that the government’s response does not comply with the constitutional requirements, the court can then determine whether its production is barred by public interest immunity or another rule of evidence invoked by the government.

....

[36] Building on the approach established by the Provincial Judges Reference, in Bodner, at para. 31, this Court set out a three‑part test for determining whether a government’s decision to depart from a commission’s recommendation meets the rationality standard:

(1) Has the government articulated a legitimate reason for departing from the commission’s recommendations?

(2) Do the government’s reasons rely upon a reasonable factual foundation? and

(3) Viewed globally, has the commission process been respected and have the purposes of the commission — preserving judicial independence and depoliticizing the setting of judicial remuneration — been achieved?

[37] Under the first two parts of the test, the focus is on the reasons given by government for departing from the commission’s recommendations: Bodner, at paras. 32‑33 and 36. The government “must respond to the [commission’s] recommendations” by “giv[ing] legitimate reasons for departing from or varying them”: paras. 23 and 24. The reasons must “show that the commission’s recommendations have been taken into account and must be based on [a reasonable factual foundation] and sound reasoning”: paras. 25 and 26. The reasons must also “articulat[e] the grounds for rejection or variation”, “reveal a consideration of the judicial office and an intention to deal with it appropriately”, “preclude any suggestion of attempting to manipulate the judiciary” and “reflect the underlying public interest in having a commission process, being the depoliticization of the remuneration process and the need to preserve judicial independence”: para. 25.

[38] The third part of the Bodner test looks to whether the government has respected the commission process and, more broadly, whether the purposes of that process have been achieved: paras. 30‑31, 38 and 43. This new part of the test was added by this Court in an effort to achieve the “unfulfilled” hopes this Court had in the Provincial Judges Reference of depoliticizing the process of setting judicial remuneration and thereby preserving judicial independence: paras. 10‑12 and 31. The third step in the Bodner test requires the court to take a global perspective and ask whether the government demonstrated respect for the judicial office by engaging meaningfully with the commission process: see paras. 25, 31 and 38.

[39] However, this addition in Bodner was not intended to transform the analysis into a probing review of the process through which the government developed its response, whether it took place within the executive, the legislature or both. As a result, I cannot agree with the Provincial Court Judges’ Association that references to the “totality” or “whole of the process” in Bodner, at para. 38, were meant to expand the scope of review such that the Cabinet decision‑making process must necessarily be scrutinized in every case.

[40] There is no doubt that the Provincial Judges Reference and Bodner require that the reviewing court focus on the government’s response. In Bodner itself, this Court looked at the Alberta, New Brunswick and Ontario governments’ responses to commission recommendations to determine whether the third part of the Bodner test had been met: paras. 83, 100 and 130‑31. That said, the third part of the Bodner test is not necessarily limited to consideration of the government’s public reasons.

[41] Moreover, this does not mean that the government can hide behind reasons that conceal an improper or colourable purpose. The Provincial Judges Reference and Bodner cannot be interpreted to mean that as long as the government’s public reasons are facially legitimate and appear grounded in a reasonable factual foundation, the government could provide reasons that were not given in good faith. Indeed, it is implicit in the third part of the Bodner test itself that, presented with evidence that the government’s response is rooted in an improper or colourable purpose and has accordingly fallen short of the constitutional benchmark set in this Court’s jurisprudence, the reviewing court cannot simply accept the government’s formal response without further inquiry.

[42] This is nothing new. In Beauregard, at p. 77, this Court made clear that “[i]f there were any hint that a federal law dealing with [the fixing of salaries and pensions of superior court judges] . . . was enacted for an improper or colourable purpose, or if there was discriminatory treatment of judges vis‑à‑vis other citizens, then serious issues relating to judicial independence would arise and the law might well be held ultra vires s. 100 of the Constitution Act, 1867” (emphasis added). This is true of all judges to whom the constitutional principle of judicial independence applies: see Provincial Judges Reference, at paras. 145 and 165.

[43] Considerations of legitimacy and respect for the process — and conversely, considerations of impropriety or colourability — permeate the entire Bodner analysis. Indeed, in Bodner, which concerned the remuneration of provincially‑appointed judges, this Court considered whether the reasons given by the Alberta, New Brunswick, Ontario and Quebec governments were “based on purely political considerations”, “reveal political or discriminatory motivations” or “evidence any improper purpose or intent to manipulate or influence the judiciary”: paras. 66, 96 and 159; see also paras. 68 and 123.

[44] Reasons that reveal an improper or colourable purpose would fail the first step of the Bodner test which requires that a government articulate a legitimate reason for departing from a commission’s recommendations. Similarly, in reviewing whether a government had relied on a reasonable factual foundation, this Court acknowledged the possibility that the government might also rely on “affidavits containing evidence of good faith and commitment to the process, such as information relating to the government’s study of the commission’s recommendations”: Bodner, at para. 36. Finally, a government’s conduct and the adequacy of its response are also directly engaged in the third part of the Bodner test, which looks to whether the government has respected the commission process and, more broadly, whether the purposes of that process have been achieved.

[45] Thus, even if a government’s public reasons appear to satisfy the requirements of Bodner, the government’s response remains subject to challenge on the basis that it is grounded in an improper or colourable purpose.

[46] In Bodner, this Court underscored that “[t]he limited nature of judicial review [of the government’s response] dictates the choice of remedies. The remedies must be consistent with the role of the reviewing court and the purpose of the commission process”: para. 42. In my view, the limited nature of Bodner review, the role of the reviewing court and the purpose of the process also have implications for the evidence considered by the reviewing court.

B. Evidence on Bodner Review

[47] The limited nature of Bodner review implies that the record for this type of review is narrower than it would be on ordinary judicial review. It also means that relevance must be assessed in relation to the specific issues that are the focus of the court’s inquiry on Bodner review: the legitimacy of the reasons given by government, the reasonableness of the factual foundation relied on by government, and the respect for the commission process by government such that the objectives of the process have been achieved. Further, since Bodner review tends to oppose two branches of the state, special considerations arise where the party seeking Bodner review requests the production of a confidential Cabinet document. As I detail below, those considerations require that the party seeking production establish that there is some basis to believe that the document may contain evidence which tends to show that the government failed to meet a requirement described in this Court’s jurisprudence, including Bodner. Only then will the reviewing court examine the document to determine whether it should be produced.

These considerations continue at paras. 73-87.

. British Columbia (Attorney General) v. Provincial Court Judges’ Association of British Columbia

In British Columbia (Attorney General) v. Provincial Court Judges’ Association of British Columbia (SCC, 2020) the Supreme Court of Canada canvasses basics of judicial independence:

[28] The constitutional principle of judicial independence flows from the recital in the preamble to the Constitution Act, 1867 that our country is to have a “Constitution similar in Principle to that of the United Kingdom”, ss. 96 to 101 of the Constitution Act, 1867, s. 11(d) of the Canadian Charter of Rights and Freedoms and s. 42(1)(d) of the Constitution Act, 1982: Beauregard v. Canada, 1986 CanLII 24 (SCC), [1986] 2 S.C.R. 56, at pp. 72‑73; Provincial Judges Reference, at paras. 84 and 105‑9; Reference re Supreme Court Act, ss. 5 and 6, 2014 SCC 21, [2014] 1 S.C.R. 433, at para. 94; Conférence des juges de paix magistrats du Québec v. Quebec (Attorney General), 2016 SCC 39, [2016] 2 S.C.R. 116, at para. 31.

[29] These provisions and the broader principle of judicial independence serve not only to protect the separation of powers between the branches of the state and thus, the integrity of our constitutional structure, but also to promote public confidence in the administration of justice: Ell v. Alberta, 2003 SCC 35, [2003] 1 S.C.R. 857, at paras. 21‑23; Conférence des juges de paix magistrats, at para. 31. They are fundamental to the rule of law and to democracy in Canada.

[30] The overarching principle of judicial independence applies to all courts, whether of civil or criminal jurisdiction and whether their judges are appointed by federal, provincial or territorial authorities: Provincial Judges Reference, at para. 106; Ell, at paras. 21‑24; Conférence des juges de paix magistrats, at para. 32.

[31] The three core characteristics of judicial independence are security of tenure, financial security and administrative independence: Provincial Judges Reference, at para. 118. The characteristic at issue in this appeal — financial security — in turn has three components, “which all flow from the constitutional imperative that . . . the relationship between the judiciary and the other branches of government be depoliticized”: para. 131 (emphasis in original). First, absent a “dire and exceptional financial emergency precipitated by unusual circumstances”, a government cannot change judicial remuneration parameters without first seeking the recommendations of an independent body, a “commission”: paras. 133 and 137. (Government can, depending on the context, mean the executive, legislature or legislative assembly.) Second, judges cannot engage in negotiations with the government over remuneration: para. 134. Finally, judicial remuneration cannot fall below the basic minimum level required for the office of a judge: at para. 135.

[32] More specifically, this appeal concerns the first component of financial security: the convening of a judicial compensation commission to make recommendations concerning judicial remuneration. The commission charged with making such recommendations must be independent, effective and objective: Provincial Judges Reference, at para. 133.

[33] The effectiveness requirement means that the commission must be regularly convened, that no changes can be made to remuneration until the commission submits its report and that “the reports of the commission must have a meaningful effect on the determination of judicial salaries”: Provincial Judges Reference, at paras. 174‑75 and 179; see also Bodner, at para. 29.

[34] To ensure that the commission’s recommendations have a meaningful effect, the government must formally respond to the commission’s report: Provincial Judges Reference, at para. 179; Bodner, at para. 22. Because of the executive and legislature’s shared constitutional responsibility to make decisions about the expenditure of public money,[5] the commission’s recommendations are not binding (unless the legislature so provides). The government must, however, give specific reasons justifying any departure from the recommendations: Provincial Judges Reference, at para. 180; Bodner, at paras. 18 and 20‑21; Conférence des juges de paix magistrats, at para. 35.

[35] To hold a government to its constitutional obligations in jurisdictions where a commission’s recommendations are not binding, the government’s response to the commission’s recommendations is subject to what this Court described in Bodner as a “limited form of judicial review”: paras. 29 and 42. The standard of justification to uphold the government’s response is that of “rationality”: Provincial Judges Reference, at paras. 183‑84; Mackin v. New Brunswick (Minister of Finance), 2002 SCC 13, [2002] 1 S.C.R. 405, at para. 57; Bodner, at para. 29. Both the standard of justification and the test used to measure the government’s response against that standard are “deferential”: Bodner, at paras. 30, 40 and 43. Both the fact that the government remains ultimately responsible for setting judicial compensation and the fact that the nature of a Bodner review is limited serve to balance the constitutional interests at stake.