How to Complain about a Judge's Conduct

How to Complain about a Judge's Conduct.

The Legal profession as a whole is, in theory, suppose to act honourably, independently and competently.  The profession is, for the most part, self-regulated. There are professional rules of conduct which govern the way in which the profession is suppose to conduct itself, whether it concerns a paralegal, lawyer, justice of the peace or a judge.

It isn’t surprising that so many lay people (non-lawyers) are bewildered by the entire court experience.  The surroundings, the language used, the procedures followed are intimidating to those who go to court, especially for a minor matter, such as a trial in which to fight their ticket.  There has been no attempt by the legal profession or the Government to demystify court proceedings or to make these proceedings less intimidating.  The legalese alone (the legal language used inside the court room) is enough to intimidate and frustrate the participants.

Most individuals that participate in the “justice system” are not there because they choose to be.  The system is known as an “adversarial system” where, inevitably, there are winners and losers.  Those individuals that reluctantly participate in the justice system, come into contact with Judges, Justices of the Peace, Lawyers and/or Paralegals.  Often, participants in the “justice system” walk away, after the final decision is made, feeling: that they haven’t had their expectations met, misunderstood, frustrated, confused and cheated.

If a Judge makes a legal error, then his/her decision can be appealed to a higher court.  If a Judge does not commit a legal error, but you suspect that he/she was influenced, while making the decision, by something other than the evidence and facts presented and the law, there are avenues available to you, to submit a complaint.

In the Canadian Justice System, Judges are appointed by the Federal Government, Provincial Government (10 Provinces) or Territorial Government (3 Territories).  It is important to be able to distinguish between the three, given that if the Judge presiding over your matter(s) is Federally appointed, the complaint will be dealt with by the “Canadian Judicial Council”, if the Judge was Provincially/Territorially appointed, the complaint will be dealt with at that level (i.e.- if your Judge was appointed by the Ontario Provincial Government, the complaint would be dealt with by the “Ontario Judicial Council”).

Judges (Appointed by the Federal Government, through the Governor General, on the recommendation of the Federal Cabinet):

Judges (Appointed by the Federal Government, through the Governor General, on the recommendation of the Federal Cabinet):
The Federal Government appoints Federal Judges.  In order to become a judge, you must have practiced law as a lawyer, full-time for at least ten (10) years.
Appointments “to the Bench” are provided by the Constitution Act, which states that judges are separate from and independent of the other two branches of government (the “legislative” and the “executive”).  The Judges Act is the legislation that dictates how judges are appointed, their salaries and the Canadian Judicial Council’s mandate (the Canadian Judicial Council was established in the year 1971 by the Parliament of Canada).  Once appointed to the bench, a Judge must devote themselves entirely to the position and the judicial duties that are related to this position.  Section 55 of the Judges Act states:
Judicial duties exclusively: 55. No judge shall, either directly or indirectly, for himself or others, engage in any occupation or business other than his or her judicial duties, but every judge shall devote himself or herself exclusively to those judicial duties.
Judges on average earn $ 260,000.00 a year and is debatable if this amount is excessive or unreasonable.
These Federally appointed Judges hear cases in the Superior Courts (includes provincial/territorial superior courts, provincial courts of appeal, the Federal Court, the Federal Court of Appeal, the Tax Court of Canada, the Court Martial Appeal Court of Canada and the highest court in the land, the Supreme Court of Canada).  There are approximately 1,100 Federally appointed Judges that are currently working in Canada, from coast to coast to coast, who can all work until they become seventy-five years of age (75 years old), before they retire. Provincially appointed Judges, for the most part, must retire when they reach seventy years of age (70 years old), depending on the Province/Territory.

Making a complaint about a Federally appointed Judge to the Canadian Judicial Council

In this paragraph, “Council” means the Canadian Judicial Council established in subsection 59 (1) of the Judges Act.

There is a high standard of personal conduct expected of judges, both publicly and while they are performing their profession in the Courts.  If a judge does not meet the high professional standards expected of them, complaints can be lodged against them through the Canadian Judicial Council established in subsection 59 (1) of the Judges Act. If Judicial misconduct has occurred, i.e. racial bias, gender bias, neglect of duty or failure to disclose a conflict of interest with regard to one of parties before them, a formal complaint can be initiated with the Canadian Judicial Council. According to the Canadian Judicial Council to make a complaint (you do not need to be represented by counsel) you simply make your complaint in writing to the:

Canadian Judicial Council

Ottawa, Ontario

K1A 0W8

Telephone Number:             (613) 288-1566

Facsimile Phone Number:    (613) 288-1575

Email Address:                    www.cjc-ccm.gc.ca

The complaint should include the following information:

Your name and address

Name of the judge, court, date and circumstances of the conduct in question

Detailed description of the conduct

Upon receiving the complaint, a member of the Canadian Judicial Council’s Judicial Conduct Committee examines the complaint and determines whether the judge in question should be contacted.  If necessary, an independent counsel may be appointed to make further inquiries.  If more than one perspective is needed, a panel made up of Council members and ordinary judges (puisne judges, not chief justices or associate chief justices) is assembled.

If the matter is very serious, or if the complaint comes from a provincial/territorial Attorney General or the Minister of Justice of Canada, an Inquiry Committee may be appointed to hold a public hearing, after which the matter goes on for full discussion by the full Council (39 members, all judges, chaired by the Chief Justice of Canada).

After considering the report of an Inquiry Committee, the Council may recommend to Parliament (through the office of the Minister of Justice) that the judge be removed from office.  Normally, if misconduct is found, the judge retires or resigns from office.  According to the Canadian Judicial Council, they only have the power to recommend to Parliament that a judge be removed from office and that the Parliament has never had to actually remove a Federally appointed judge.

When the complaint has been reviewed and a decision has been made, the decision will be put in writing by the Council and sent to you.

The Canadian Judicial Council only applies to Federally appointed Judges (Provincial/Territorially appointed Judges have judicial councils in each Province or Territory, where complaints for misconduct can be directed).  Here is a list of the Courts in which Federally appointed Judges perform their duties (of which the Council has authority over):

Canada		Ontario
Supreme Court of Canada		Court of Appeal
Federal Court of Appeal		Superior Court of Justice
Federal Court
Court Martial Appeal Court of Canada
Tax Court of Canada
Newfoundland		Prince Edward Island
Supreme Court, Court of Appeal		Supreme Court, Appeal Division
Supreme Court, Trial Division		Supreme Court, Trial Division
Nova Scotia		New Brunswick
Court of Appeal		Court of Appeal
Supreme Court		Court of Queen’s Bench
Quebec		Manitoba
Court of Appeal		Court of Appeal
Superior Court		Court of Queen’s Bench
Saskatchewan		Alberta
Court of Appeal		Court of Appeal
Court of Queen’s Bench		Court of Queen’s Bench
British Columbia		Yukon
Court of Appeal		Supreme Court
Supreme Court
Northwest Territories		Nunavut
Supreme Court		Court of Justice

The Canadian Judicial Council and the Judges Act

The Canadian Judicial Council (hereafter “C.J.C”) receives its authority to investigate and rule on complaints with regard to Federally appointed Judges, from the ( Judges Act ). The Judges Act in PART II – Section 59. describes the Constitution of this Council, followed by the “Objects of Council” in Section 60, which states “The Objects of the Council are to promote efficiency and uniformity, and to improve the quality of judicial service, in the superior courts” .  It is the next part of the Judges Act which refers to “INQUIRIES CONCERNING JUDGES” beginning in Section 63.

Section 63.(1) Inquiries:

“The Council (C.J.C) shall, at the request of the Minister (Minister of Justice of Canada) of the attorney general of a province, commence an inquiry as to whether a judge of a superior court should be removed from office for any of the reasons set out in paragraphs 65(2) (a) to (d)”.

Section 65 (2) Recommendation to Minister:

“Where, in the opinion of the Council (C.J.C), the judge in respect of whom an inquiry or investigation has been made has become incapacitated or disabled from the due execution of the office of judge by reason of

(a) age or infirmity, 

(b) having been found 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, the Council (C.J.C), in its report to the Minister under subsection (1), may recommend that the judge be removed from office”.

Section 63. (2) Investigations:

“The Council may investigate any complaint or allegation made in respect of a judge of a superior court”.

Section 63. (6) Inquiries may be public or private:

“An inquiry or investigation under this section may be held public or in private, unless the Minister requires that it be held in public”.

Section 65. (1) REPORT AND RECOMMENDATIONS – Report of Council:

“After an inquiry or investigation under section 63 has been completed, the Council shall report its conclusions and submit the record of the inquiry or investigation to the Minister (Minister of Justice of Canada”..

Section 66. (2) EFFECT OF INQUIRY – Leave of absence with salary:

“The Governor in Council (C.J.C) may grant leave of absence to any judge found, pursuant to subsection 65(2), to be incapacitated or disabled, for such period as the Governor in Council, in view of all the circumstances of the case, may consider just or appropriate, and if leave of absence is granted the salary of the judge shall continue to be paid during the period of leave of absence so granted.

Section 66 (3) Annuity to judge who resigns:

“The Governor in Council may grant to any judge to be incapacitated or disabled, if the judge resigns, the annuity that the Governor in Council might have granted the judge if the judge had resigned at the time when the finding was made by the Governor in Council”.

Section 71. REMOVAL BY PARLIAMENT OR GOVERNOR IN COUNCIL- Powers, rights or duties not affected:

“Nothing in, or done or omitted to be done under the authority of, any sections 63 to 70 affects any power, right or duty of the House of Commons, the Senate or the Governor in Council in relation to the removal from office of a judge or any other person in relation to whom an inquiry may be conducted under any of those sections”. This has never happened, but there is always a potential for this to take place.