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Judges - Canadian Judicial Council. Hokhold v. Canada (Attorney General)
In Hokhold v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal briefly considered the CJC's jurisdiction over complaints:[1] Dr. Hokhold appeals from a judgment of the Federal Court (2021 FC 558, Barnes J.). In its judgment, the Federal Court dismissed an application by Dr. Hokhold for judicial review of a screening decision of the Canadian Judicial Council, made by its executive director. In that decision, the CJC found Dr. Hokhold’s complaint of judicial misconduct against Justice Patrice Abrioux, then of the Supreme Court of British Columbia, to be an abuse of process, and dismissed the complaint.
[2] The complaint is one of a series of complaints brought by Dr. Hokhold to the CJC against judges who have ruled against him. These complaints have all been dismissed. They have all been found to involve judicial decision-making rather than judicial conduct and, therefore, to be outside the mandate of the CJC. . Duhamel v. Canada (Attorney General)
In Duhamel v. Canada (Attorney General) (Fed CA, 2022) the Federal Court of Appeal heard an appeal from a JR against the Canadian Judicial Council (CJC) who in turn had dismissed the appellant's complaint against a BC judge. The substance of the complaint was substantially that of bias, and the Federal Court of Appeal was of the view that such matters should be dealt with by the normal appeal systems, and not be taken to the CJC:[25] With respect to whether an allegation of bias should always be a matter for review by the CJC, the Supreme Court of Canada in Moreau-Bérubé v. New Brunswick (Judicial Council), 2002 SCC 11, noted that it is the exceptional case that would warrant the intervention of a judicial council:"[55] While the Canadian Judicial Council and provincial judicial councils receive many complaints against judges, in most cases these are matters properly dealt with through the normal appeal process. There have been very few occasions where the comments of a judge, made while acting in a judicial capacity, could not be adequately dealt with through the appeal process and have necessitated the intervention of a judicial council (see: Marshall Report, supra, where the Canadian Judicial Council inquiry panel concluded that the Nova Scotia Court of Appeal had been “inappropriately harsh in their condemnation of the victim of an injustice they were mandated to correct” (p. 35) after the Court of Appeal had noted, among other things, that any injustice suffered by Mr. Marshall was “more apparent than real” (p. 36); Report to the Canadian Judicial Council by the Inquiry Committee appointed under subsection 63(1) of the Judges Act to conduct a public inquiry into the conduct of Mr. Justice Jean Bienvenue of the Superior Court of Quebec in R. v. T. Théberge (1996), where removal from office was recommended, mainly for comments made while presiding over a sentencing hearing; and, Canadian Judicial Council file 98-128, where the Canadian Judicial Council released a letter expressing strong disapproval for comments made by a justice of the Alberta Court of Appeal in reasons delivered while sitting in his capacity as a judge ""in Vriend v. Alberta ""(1996), ""1996 ABCA 87 (CanLII)"", ""132 D.L.R. (4th) 595"", and R. v. Ewanchuk ""(1998), ""1998 ABCA 52 (CanLII)"", ""13 C.R. (5th) 324"")."
"[emphasis added] " [26] The Supreme Court of Canada also drew a distinction between matters than can be addressed through the appeal process and those that "“threaten the integrity of the judiciary as a whole”" and would thus require the intervention of the judicial council:"[60] Part of the expertise of the Judicial Council lies in its appreciation of the distinction between impugned judicial actions that can be dealt with in the traditional sense, through a normal appeal process, and those that may threaten the integrity of the judiciary as a whole, thus requiring intervention through the disciplinary provisions of the Act. … " [27] As also noted by this Court in Consentino v. Canada (Attorney General), 2021 FCA 193, at paragraph 5, "“[a]n unbroken line of jurisprudence suggests that matters that can be appealed are not the proper subject of a judicial conduct complaint”".
[28] Mr. Duhamel acknowledged at the hearing of his appeal that the matters about which he was complaining could have been the subject of an appeal. His complaint of bias is based on what Mr. Duhamel considers inadequate reasons and a failure to decide the issue of his standing to bring the Petitions before the British Columbia Supreme Court. It was reasonable for the Acting Executive Director of the CJC to find that these matters could be the subject of an appeal and the particular matters that were the subject of Mr. Duhamel’s complaint did not warrant any further consideration by the CJC. . Turner-Lienaux v. Canada (Attorney General)
In Turner-Lienaux v. Canada (Attorney General) (Fed CA, 2022) the Federal Court of Appeal considered and dismissed an appeal of JR application of a Canadian Judicial Council decision:[8] We agree with the Federal Court that the decision of the Canadian Judicial Council was reasonable. The Canadian Judicial Council found that the appellant’s complaint fell within section 5(b) of the Review Procedures, applied the prescribed criteria to the complaint, and found that the complaint did not warrant further consideration. It found that the complaint concerned judicial decision-making, for which the recourse is an appeal from the impugned judge’s decision, not a complaint to the Canadian Judicial Council about the judge’s conduct. This was a factually suffused finding of mixed fact and law with which we cannot interfere.
[9] Like the Federal Court, and substantially for the reasons it gave, we see in this record an acceptable and defensible basis for the Canadian Judicial Council’s findings and conclusions on this record. . 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.
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