The Canadian Judicial Council wants more flexibility when it comes to deciding how a federally appointed judge should be disciplined for misconduct.
“At the present time, the only true sanction that can be imposed on a judge who engages in misconduct is bleak: recommend their removal,” the council wrote in a position paper released Wednesday.
The council is asking the Liberal government to amend the Judicial Act to give it the formal authority to impose range of remedial measures or sanctions instead, while also retaining the authority to recommend that the federal justice minister remove a judge if necessary.
“We reject the notion that any transgression must be ignored unless it is so grave as to warrant a judge’s removal,” the council wrote.
The ideas for reform come as a panel is in deliberations following a disciplinary hearing for Federal Court Justice Robin Camp, who was a provincial court judge in Calgary when he asked a sex assault complainant why she didn’t keep her knees together.
Public disciplinary hearings that consider whether a judge should be removed from the bench are rare.
The vast majority of the 150 complaints the council receives every year are either dismissed or dealt with behind closed doors.
The council argued that having the authority to use more disciplinary tools — such as issuing a private or public reprimand, forcing a judge to apologize, undergo counselling, coaching or treatment, or imposing a suspension without pay for up to 30 days — would not only boost public confidence in its ability to oversee the conduct of judges, but in the judiciary as a whole.
The council also said that should a judge receive one of these lesser punishments, it could also increase faith in both the judge and the process because it represents a decision that no further action should be taken and that the judge remains fit to stay in the role.
Some of these alternative measures have been used in the past, but Norman Sabourin, the council’s executive director and senior general counsel, said there is merit to having them formally included in the legislation.
“As some matters become more complex, as some matters become sometimes litigious, we think it’s important that these authorities be defined in the legislation, so that the council’s authority to do these things is recognized by Parliament,” Sabourin said.
Sabourin said making them formal would also mean being able to tell the public what happened.
The council is also asking for a change in the way it conducts disciplinary hearings so that it functions more like a court, with a lawyer presenting all the evidence against the judge in question, and that the decision of a judicial discipline committee be final, subject only to a right of appeal.
Justice Minister Jody Wilson-Raybould said the recommendations would be helpful and thanked the council for their leadership on this issue.
“The government is committed to encouraging the participation of all Canadians and justice-sector stakeholders in the development of law, policy and programs,” she said in a statement emailed by her spokeswoman, Valerie Gervais. “We have been consulting with Canadians on what changes, including legislative amendments, may be needed to improve the accountability, transparency, fairness and efficiency of judicial discipline.”Report Typo/Error