The body that handles complaints about the behaviour of federally appointed judges is in need of both internal and legislative reform to streamline what is now a cumbersome disciplinary process, Canada’s top judge says.
In an interview with The Canadian Press, Chief Justice Richard Wagner said he would be launching this week a sweeping review of the Canadian Judicial Council, which has come under harsh criticism for some of its actions.
“I’ve always said this judicial conduct process is much too long, much too expensive, and it should be corrected,” Chief Justice Wagner said from Ottawa. “We will look at our own internal management at CJC to decide whether there are not things we can do without legislative amendments within our own management to improve things.”
Mr. Wagner said he is reaching out to senior judges across the country to garner their views on what changes are needed. Areas include the council’s mission, how its various committees are appointed and the crucial role of the executive director, who wields significant power as complaints gatekeeper.
“Everything is on the table,” Chief Justice Wagner said.
Last year, a former senior Manitoba judge and dozens of lawyers reacted angrily after the executive director, Norman Sabourin, initiated action against a prominent Ontario Superior Court judge who, with the blessing of his superiors, had accepted a six-month law school deanship at Lakehead University in Thunder Bay, Ont. The council later ruled that justice Patrick Smith had committed judicial misconduct but urged no further action.
In a letter to Wagner, who is head of the council, Senator Murray Sinclair said last fall he was “deeply troubled” by the Smith review and urged council to reflect “on its own role and mandate.”
Separately, 36 lawyers in Thunder Bay criticized what they saw as the “outrageous” persecution of the judge, while lawyer Brian Gover, who represents Mr. Smith in current court action against the council, said the legal community had been shocked.
“The CJC is facing a fierce counter-attack such as they have never seen before,” Mr. Gover said at the time.
The review comes amid a parallel effort by the council to update its ethical guidance for judges – something last done more than 20 years ago. The council has asked for public input on a range of issues, such as whether judges should be on social media or whether there should be restrictions on the work they do after leaving the bench.
Chief Justice Wagner, who became chief justice of the Supreme Court of Canada 15 months ago, said he has long wanted to look at how the judicial council and the courts themselves were working. The aim, he said, was to modernize both to ensure they were efficient, relevant and able to meet emerging challenges such as the growth in self-represented litigants.
“It’s a good thing to look at those issues when society has evolved, has changed. Expectations have changed also. I thought it was a good time to look at it. It’s a major work to make sure that the judiciary is still relevant.”
Chief Justice Wagner said he did not favour judges engaging on social media and potentially compromising their status as aloof from social and political debate. At the same time, he said, the courts and other judicial entities, as the Supreme Court does, should use social media to disseminate their messages and decisions
“We need to be relevant,” Chief Justice Wagner said of the ethical guidance update. “This is a parallel exercise and, at the end of the day, it will be successful but we need major reforms for judicial conduct.”
While one of the survey questions touches on the situation Mr. Smith found himself in, Chief Justice Wagner said he could not discuss specific cases that are before the courts but said discussing reforms was important. He noted that his predecessor Beverley McLachlin had asked for legislative changes to enhance the council’s work.
Judges who are subject to a complaint and citizens need to know what to expect and that complaints will be handled expeditiously, the chief justice said, adding the current process is “very heavy.”
“If the judge has to be removed, he has to be removed quickly and without too much cost to society,” Wagner said. “We need reforms. Parliament should find a way to make sure that these matters don’t drag for too long and aren’t too expensive.”
A spokeswoman said the council welcomed the review and had already begun adding “clarity and transparency” to its work.
“We have presented a number of proposals to the Department of Justice that would lead to a more efficient and less costly process,” Johanna Laporte said.
Chief Justice Wagner said he hoped to be able to announce the results of the review within the next several months.
Neither the justice minister nor Ministry of Justice had any comment.