Sample of Complaints received during 1990-1991
One complaint concerned a judge with a medical condition that prevents him from carrying out the full range of judicial duties, notably from presiding over trials or hearings in chambers.
But his mind is not in the least impaired. This judge can and does deal with matters that do not require oral hearings--for example, reviewing and adjudicating matters when the parties would not be present in any event. The Council concluded that, since this judge contributes to the work of his court, there was not a prima facie case for recommending his removal from office and, therefore, no basis for commencing a formal investigation.
One complaint was that in hearing an appeal the judge termed the relevant legislation "fascist."
This case prompted a hard look by the Committee at its authority to comment on a judge's statements or conduct, as the judge challenged the Council's power "to issue a public reprimand or to disapprove of my conduct in any way other than a recommendation for my removal."
It is quite clear that the plain words of the Judges Act do not give the Council, much less a committee or the chairman of a committee, power to "reprimand" or "admonish" judges. As a broad principle, the Committee does not quarrel with a judge's rights, first, to form an opinion and, second, to voice it forcefully. These rights are inseparable from the principle of judicial independence. Should a judge's comments compromise the proceedings, they constitute an error in law that is ground for appeal to a higher court.
But the Committee affirmed its authority to continue the practice, already well established, of telling complainants and the judges concerned what it thinks of comments or conduct that spark a complaint. This is important for at least two reasons. It can:
• help give complainants a reasonable understanding of the thinking that underlies the Committee's decision; and
• be useful to the judge to know how comments or conduct that give rise to complaints appear in the eyes of fellow judges.
In this case, the Committee did advise the two complainants and the judge that it disapproved of his language.
A comment made by a judge in conversation with a lawyer outside the courtroom was alleged to reveal either racism or a belief that people who have clashed with the justice system in the past are not entitled to as strenuous a defence as others are.
While the judge could not specifically recall making the comment, he acknowledged that it is the kind of thing he might well have said in the circumstances. But he denied categorically that he was motivated by either racism or a dual standard of justice. He said he would have been thinking, rather, of how much effort this young lawyer was devoting to one aboriginal client: "I thought he was getting far too involved in one particular case to the detriment of his practice."
The Committee noted that there is no indication this judge dispenses unequal justice. Nonetheless, it advised the complainant and the judge that it viewed the remark, even if made in a non-judicial capacity, as "ill-advised." It passed on to the complainant the judge's expression of regret.
A lawyer submitted statements from three individuals alleging among other things that the judge, in a public bar and visibly under the influence of alcohol, had discussed cases in which he was involved.
Because of the gravity of the allegations, the Committee engaged counsel (from another province) to make an independent examination of the facts. Counsel concluded that three of the six distinct allegations to be found in the statements could not be substantiated. While there was no evidence that the judge's drinking habits interfere with his work or that he has a reputation for discussing cases out of the courtroom, counsel found that he had in this instance discussed one case out of court with one of the parties and with a court official, and had discussed another with a person who might have had an interest for personal reasons.
Responding to the fact-finding report, the judge acknowledged fault and said he "deeply regrets" his conduct. At the Committee's request, the judge also provided a medical report indicating that he does not have an alcohol problem.
In the expectation that such incidents would not be repeated, the Committee concluded that no purpose would be served by a formal investigation, but it also indicated to the judge that members "disapprove of [your] conduct and regret very much that the incident took place."
Both the victim of an assault and an organization lodged complaints after a judge found there had been provocation and, while not accepting this as a defence against the charge, took it into account in sentencing. He fined the offender, the victim's husband at the time, rather than sentence him to a term of imprisonment. The victim brought on the assault, the judge found, by changing into a tee-shirt on which animals were depicted engaging in sexual acts, with the intention of wearing it to a party in retaliation for her husband's refusal to accompany her to another social event. The judge's "implication that I was advertising promiscuity and threatening adultery is personally offensive and sexist," the victim complained. "If Judge [name]'s attitude is typical of our judges, then it will be a long time before the implicit licence to men, to batter and bruise women, will be removed."
After vigorous debate, the Committee decided not to express disapproval of the judge's decision, as it was more properly dealt with by an appellate court. It pointed out to the complainant that:
Judges are always called upon to make findings of fact, often strictly on issues of credibility. Controversial findings of fact will necessarily require detailed exposition and explanation, and may at times impugn the character of parties . . . . While that may prove difficult for the parties affected, it is nevertheless the judge's duty to make those findings of fact and to explain them.
Indeed, in this case the sentence was appealed and the majority held that the judge had made an error in law by over-emphasizing the provocation. The appeal court substituted a 60-day term of imprisonment for the fine imposed by the judge.
In one case, the judge was alleged to have discriminated against men.
He acknowledged in his response to the complaint that in sentencing a woman to 12 months for embezzlement he had said he would have sentenced a man in the same circumstances to 18 months.
"I would have more accurately expressed myself, if I had said that I have great difficulty in sentencing anyone to prison, but that my difficulty is greater in the case of female persons . . . .
I would be the first to say that, in attributing a different degree of significance to mitigating factors on the basis solely of gender, I display a prejudice. I believe, however, that it is a prejudice that the vast majority of Canadians possess."
This was one of the many cases where the appropriate recourse was to an appeal, but the Chairman of the Judicial Conduct Committee put his disagreement with the judge's opinion on the record.
Another case arose when a judge, hearing an application to vary a bail order so a man awaiting trial for assaulting his wife and others could spend Christmas at home, said "if she's prepared to put up with these beatings, I don't see why I should worry about it."
Responding to the complaint, which came from a social service organization and not from the wife, the judge said:
"I was trying to convey that if she and the children really wanted him back and she had no fear of him, then I felt we should go along with her request. Unfortunately it did not come out in a way that properly conveyed the message, and this I regret."
This explanation was conveyed to the complainant with the Chairman's agreement that the remark was "unfortunate."
A judge meant to compliment a woman as a hard worker when he said at a dinner that she was the kind of person he would have liked as a date when he was young since she never said No. Someone in the audience, not the woman concerned, alleged sexism.
In a response provided to the complainant, the judge acknowledged that the remark was "unfortunate" and "inappropriate," and the Chairman of the Committee agreed.
In another case, a lawyer who happened to be present in the courtroom at the time complained about a "mother-in-law" crack a judge made in an exchange with a Crown attorney.
The judge responded that "I regret my comment and acknowledge it to have been an insensitive and inappropriate attempt at levity." It should not, of course, be assumed that a judge who blurts out inappropriate humour applies it in the performance of judicial duties.
The essence of one complaint was that both trial and appeal judges had accepted the testimony of certain witnesses over the testimony of others. Deciding what weight to attach to what testimony is, of course, one of the fundamental duties of a judge.
In this case, the complainant was told that, in any event, the Council has no mandate to review judicial decisions. The proper recourse, if any, was an appeal to the Supreme Court of Canada.
One complaint was against some judges who work with an organization in counselling both lawyers and other judges, notably about alcohol abuse. They were alleged to have put themselves in the way of conflicts of interest by counselling people who might appear before them.
The judges replied that in the event of a conflict, they would disqualify themselves and turn the case over to another judge, and the Chief Justice reported that he knew of at least one case where this had happened. The judges pointed out that the leaders of the legal profession were aware of their activities and had never expressed concern.
In another case, a judge decided a technical question related to abortion hearings without disclosing his prior association, as a lawyer, with an organization that opposes abortion.
Noting that the decision he was called upon to make was on a narrow legal point, far removed from the substance of the abortion issue, the judge said the association had been so slight and dated back so far that he had completely forgotten it. Had he remembered, he said, he would have disclosed it and proceeded only with the consent of both parties before him. The question raised by the complaint was properly one for an appellate court and, indeed, the decision was appealed. It was overturned in part, although the ultimate effect was unchanged.