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Judges - Judicial Independence. Democracy Watch v. Canada (Attorney General)
In Democracy Watch v. Canada (Attorney General) (Fed CA, 2024) the Federal Court of Appeal dismissed an appeal (primarily on evidentiary grounds) by a public interest advocate's application that alleged that the "the process by which judges are appointed under section 96 and 101 of the Constitution Act, 1867" "is subject to political discretionary control, influence, and interference by the federal Minister of Justice and Cabinet":[1] The appellants appeal from the judgment of the Federal Court in Democracy Watch v. Canada (Attorney General), 2023 FC 31 (per Southcott J.). In that judgment, the Federal Court dismissed the appellants’ application challenging the process by which judges are appointed under section 96 and 101 of the Constitution Act, 1867. The appellants alleged that the appointment process is subject to political discretionary control, influence, and interference by the federal Minister of Justice and Cabinet. The appellants argued before the Federal Court that such control, influence, and interference undermines the institutional independence of the judiciary in violation of sections 7, 11(d), and 24 of the Canadian Charter of Rights and Freedoms and section 96 of the Constitution Act, 1867.
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[12] I accordingly see no error in the Federal Court’s conclusion to disallow the opinion pieces, the ICJC Report, or the statement from the President of the CBA.
[13] What the Federal Court was left with, and what is now before this Court, amounts to pure speculation about possible inappropriate considerations that might come into play in the judicial appointment process. Indeed, before us, the appellants cast their submissions in the form of what "“could happen”" in that process and the potential for a governing party to use candidates’ past political affiliations as an important criterion for appointment. However, there is no evidence this occurred. The mere fact that the Minister of Justice appoints some of the members of Judicial Advisory Committees or may consult with others, including with cabinet colleagues, about potential judicial appointments falls well short of establishing that the institutional independence of the judiciary is undermined in violation of sections 7, 11(d) and 24 of the Canadian Charter of Rights and Freedoms and section 96 of the Constitution Act, 1867.
[14] I therefore conclude that the Federal Court did not err in dismissing the appellants’ application. In the circumstances, I decline to make any comment on whether, in an appropriate case, a court might reach a different conclusion if there were different admissible evidence before it about the functioning or composition of Judicial Advisory Committees or consultations undertaken in the appointment process. That is best left for another day. I would therefore decline to draw a bright–line conclusion that the only essential conditions for institutional judicial independence are security of tenure, security of remuneration, and administrative independence. Indeed, in Valente v. The Queen, 1985 CanLII 25 (SCC), [1985] 2 S.C.R. 673, the Supreme Court did not firmly foreclose the possibility that judicial independence might one day be found to encompass additional elements. . Lauzon v. Ontario (Justices of the Peace Review Council)
In Lauzon v. Ontario (Justices of the Peace Review Council) (Ont CA, 2023) the Court of Appeal considered an appeal of a JR of a 'Justices of the Peace Review Council' order that removed the JP from office for disciplinary reasons related to an article she wrote critical of Crown prosecutors and the bail courts. In these quotes the court extensively considers judicial independence:[28] Articulating the scope of judicial independence and the limitations on it in any specific case is sometimes quite difficult. There is room for honest and strongly held differences of opinion on problems in the system of justice and how strongly judicial views may be publicly expressed.[15]
[29] The Hearing Panel did not adequately grapple with the issue of judicial independence, especially not in the majority’s disposition reasons. Judicial independence is to be protected, but that protection must not entail unduly discouraging its actual exercise in judicial speech by applying disproportionate discipline for it.
[30] Three aspects of judicial independence come to the fore in this case. The first is that the principle of judicial independence is constitutionally enshrined as “the cornerstone, a necessary prerequisite, for judicial impartiality.”[16] This is the positive value of judicial independence. The second aspect is what I would call the “precautionary principle,” which demands a high standard of ethical conduct from judges in order to maintain public confidence in the judiciary. This principle is protective or defensive in its orientation. The third aspect focuses acutely on the case-specific details: in a judicial misconduct case like the one at bar, would a finding of misconduct and imposition of a particular sanction be an appropriate restriction on judicial independence? I note that the Hearing Panel did not self-instruct on all of these principles. Instead, it remained focused almost exclusively on the precautionary principle.
[31] These three aspects of judicial independence are reflected in the Canadian Judicial Council’s Ethical Principles for Judges.[17] Although the revised version was not yet in force when the Hearing Panel did its work, these principles are rooted in long-standing jurisprudence and experience, and in the 1998 iteration of the Ethical Principles. The Statement on Judicial Independence provides:An independent judiciary is indispensable to impartial justice under law. Judges uphold and exemplify judicial independence in both its individual and institutional aspects.[18] [32] This statement is supported by four principles:A. Judges exercise their judicial functions independently and free of extraneous influence.
B. Judges firmly reject improper attempts to influence their decisions in any matter before the court.
C. Judges exhibit and promote high standards of judicial conduct so as to reinforce public confidence in the independence of the judiciary.
D. Judges encourage and uphold arrangements and safeguards to maintain and enhance the institutional and administrative independence of the judiciary. [33] These principles animate the three aspects of judicial independence I outlined above. I now turn to a fuller discussion of their implications for this case.
(a) Judicial independence as a constitutional necessity
[34] The Canadian Judicial Council’s commentaries elaborate on the principles supporting judicial independence. Commentary 1.A.1 notes that judges must be “impervious to improper external intervention in the exercise of their functions” and must retain “the liberty and responsibility … to hear and decide cases that come before them in accordance with their conscience, without interference from others.” Commentary 1.A.3 states that judicial independence “connotes a status or relationship with others, including the executive branch of government and other judges.” It further states that judges must “apply the law without fear or favour and without regard to whether the decision is popular.” The overarching worry, rooted in the constitutional separation of powers, is that the executive or legislative branches could intervene to push judges towards their preferred outcomes.
[35] The relevant implication in this case is the risk that the public could see JP Lauzon’s removal from office as an instance of the successful interference by the executive branch, within which Crown prosecutors function, against judicial officers who take issue with the conduct of Crown prosecutors in courtrooms.
(b) The precautionary aspect of judicial independence
[36] Commentary 1.C.1 in Ethical Principles for Judges provides an internal limitation on judicial independence; it raises the precautionary principle:Judicial independence and judicial ethics are interrelated. Judges should exemplify and promote high standards of judicial conduct as one element of assuring the independence of the judiciary. In turn, the independence and integrity of the judiciary preserves public confidence in the rule of law and acceptance of court decisions. Unethical conduct by judges erodes that confidence. Thus, judges share a collective responsibility to promote and observe high standards of conduct. [37] In Moreau-Bérubé v. New Brunswick (Judicial Council), the Supreme Court stated that a judicial council “must also be equally sensitive to the reasonable expectations of an informed dispassionate public that holders of judicial office will remain at all times worthy of trust, confidence and respect.”[19] Judges must conduct themselves appropriately in public in order to preserve confidence in the administration of justice.
[38] Justice Gonthier discussed the interplay between judicial independence and the requirement for judges to act in a reserved and careful manner in Ruffo v. Conseil de la magistrature.[20] He stated:The duty of judges to act in a reserved manner is a fundamental principle. It is in itself an additional guarantee of judicial independence and impartiality, and is aimed at ensuring that the public’s perception in this respect is not affected. The value of such an objective can be fully appreciated when it is recalled that judges are the sole impartial arbiters available where the other forms of dispute resolution have failed. The respect and confidence inspired by this impartiality therefore naturally require that judges be shielded from tumult and controversy that may taint the perception of impartiality to which their conduct must give rise.[21] [39] The precautionary principle describes a threat that poor judicial conduct can pose to public support for judicial independence. There are three outcomes to be avoided. One is that judges might engage in misconduct and thereby undermine public confidence. The second is that other stakeholders might unreasonably impugn the actions of judicial officers to those to whom they are accountable, in a manner that threatens judicial independence. The third is that judicial officers might retreat into timorous silence. None of these is in the public interest.[22]
[40] To put it simply, judicial conduct that offends the other branches of government might motivate those branches to act in such a way as to undermine judicial independence by asserting that the conduct should be punished as misconduct. These competing tensions were at play in this case.
(c) The role of judicial independence in this case
[41] Commentary 1.A.6 emphasizes the importance of judges educating the public about judicial independence:Informing the public with respect to the role of the judiciary and judicial independence is an important judicial function. It is in the public interest for judges to take advantage of appropriate opportunities to enhance the public’s understanding of the fundamental importance of judicial independence. This role has particular relevance to JP Lauzon’s case.
[42] Judicial independence is linked to public confidence in the administration of justice. If the public does not believe that judges are acting independently and freely from the influence of other branches of government, the public will lose confidence that courts are deciding cases objectively based on the facts and the law. Justices must not be seen as mere “rubber stamps” for Crown prosecutors.
[43] While JP Lauzon’s comments were not made from the bench, they related to her experiences as a sitting justice. The complaints against JP Lauzon were from Crown prosecutors about how she described the conduct of some of them in her courtroom. This constellation of interests has obvious separation of powers implications.
[44] In Moreau-Bérubé, the Supreme Court instructed judicial councils to be careful in discipline for judicial speech because it engages the core tenets of judicial independence:The Judicial Council has been charged by statute to guard the integrity of the provincial judicial system in New Brunswick. In discharging its function, the Council must be acutely sensitive to the requirements of judicial independence, and it must ensure never to chill the expression of unpopular, honestly held views in the context of court proceedings. [Emphasis added.][23] [45] While Moreau-Bérubé related to speech from the bench, in my view, the same concern about chilling effects exists for JP Lauzon’s article. This concern is of particular importance when the impugned speech relates to the administration of justice, on which scholars and judges agree that judges must have more latitude to speak out. Sopinka J., speaking extrajudicially, observed that “[i]f a matter is troubling a judge and relates to the work of the court, a public discussion will often serve not only to clear the air, but will also result in a happier, more effective judge.”[24] The Canadian Judicial Council has expressed the view that “members of the Judiciary should avoid taking part in controversial political discussions except only in respect of matters that directly affect the operation of the courts” (emphasis added).[25]
[46] Beyond doubt, a core component of judicial independence is security from removal from office, particularly at the behest of representatives of other branches of government who might object to judicial decisions.[26] As stated by Arbour J., “[w]hile acting in a judicial capacity, judges should not fear that they may have to answer for the ideas they have expressed or for the words they have chosen.”[27] . 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. . Feeney v. Canada
In Feeney v. Canada (Fed CA, 2022) the Federal Court of Appeal, in the course upholding a dismissal of an action against the federal Crown for lack of jurisdiction, sets out the nature of the Federal Court system and it's judges. In these quotes it explains the separate status of federal court judges with respect to the Crown:[14] .... Importantly, however, judges – including federally appointed judges – are not employees of the Federal Crown. They are also not "“servants”" or "“agents”" of the Crown within the meaning of the CLPA, as these terms refer to someone working under the control or direction of the Crown (Northern Pipeline Agency v. Perehinec, 1983 CanLII 167 (SCC), [1983] 2 S.C.R. 513 at 519-521 ; R. v. Eldorado Nuclear Ltd.; R. v. Uranium Canada Ltd., 1983 CanLII 34 (SCC), [1983] 2 S.C.R. 551 at 573-574).
[15] In Crowe, this Court explained why judges are not truly employees, servants, or agents of the Crown in the following paragraph:["24] The pleadings quoted above do not refer to servants of the Crown as such, though they do refer to judges and the Canadian judiciary. Judges are not servants of the Crown. They are not employees of the Federal Government. The principle of judicial independence is a constitutional principle: see Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, ""1997 CanLII 317"" (SCC), ""[1997] 3 S.C.R. 3"", at para. ""106"". Its application requires that judges be, and be seen to be, free of interference from the government of the day. That independence is incompatible with the status of an employee. As a result, even if a judge behaves extra-judicially and without jurisdiction, his or her conduct would not engage the liability of the Federal Government. The motions judge correctly held that the claim against the Federal Government must fail for failure to disclose a reasonable cause of action because, assuming Mr. Crowe's allegations to be true, they do not engage the liability of the Crown." . The Corporation of the City of Windsor v. Paciorka Leasehold Limited
In The Corporation of the City of Windsor v. Paciorka Leasehold Limited (Div Ct, 2021) the Divisional Court considered the issue of 'judicial copying' (although here it was by a tribunal) as an aspect of judicial independence:[49] In Cojocaru v. British Columbia Women’s Hospital and Health Centre, 2013 SCC 30, the Supreme Court of Canada addressed the issue of “judicial copying”. The Court held that judicial copying raises issues of natural justice because it goes to the issue of whether the decision maker decided the matter independently.
[50] In Cojocaru, at para. 22, the Court emphasized that there is a presumption of judicial impartiality and that the onus is on the party challenging the decision to rebut the presumption:There is a presumption of judicial integrity and impartiality. It is a high presumption, not easily displaced. The onus is on the person challenging the judgment to rebut the presumption with cogent evidence showing that a reasonable person apprised of all the relevant circumstances would conclude that the judge failed to come to grips with the issues and decide them impartially and independently. [51] In Cojocaru, at paras. 35-36, the Court stated that “extensive” judicial copying is to be discouraged but that, on its own, it is not evidence of a lack of independence. The copying must be “of such a character that a reasonable person apprised of the circumstances would conclude that the judge did not put her mind to the evidence and the issues and did not render an impartial, independent decision”. The Court also held that, while it is expected that adjudicators will make their decisions independently, it is not improper for some copying from the parties’ submissions to take place. The issue is whether the reasoning and assessment of the evidence occurred independently.
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