Sample of Complaints received during 1991-1992
The complaint was that a judge had presided over cases in the early 1980s concerning two banks which had written off a portion of debts the judge owed to them. It was filed by a provincial attorney general who asked for a review of the judge's conduct but who did not invoke the provision of the Judges Act which requires a formal inquiry as to whether there are grounds for removal.
During a lengthy political career, the judge built up significant debts which he expected to repay when he resumed his career as a private practice lawyer. However, when he was appointed to the bench after his retirement from politics, his income was not sufficient to allow him to pay off the debts.
As a result, he made arrangements with the banks to repay what he could and the financial institutions wrote off the balance.
In June, 1991, the Committee found that there was no misconduct in the way the judge arranged to settle his debts. The amounts paid were similar to what the banks might have expected to obtain had they sued and arrangements between the judge and the banks were standard in banking circles. There was no indication that the banks expected favours from the judge in return. Nor could any wrongdoing be attributed to the judge for sitting on a handful of uncontested matters involving one of the banks with which the judge had financial dealings.
In order to avoid any perception of bias, the Committee said it would have been preferable had the judge not sat on two contested cases involving the other bank. But in both cases his judgments were unexceptionable. Because the allegations received wide public attention, the Committee issued a news release to announce its decision not to recommend a formal investigation.
A judge's actions involving the unauthorized removal of antique doorknobs from one courthouse for installation in his own office in another courthouse was the subject of a complaint by four university law professors in November, 1991. An anonymous letter of complaint was also received by the Council during the same month.
An independent counsel engaged by the Committee determined that the judge, who had an interest in court heritage, removed the doorknobs against the express wishes of the senior judge at the older courthouse. Contrary to rumours, investigation showed the doorknobs were not taken surreptitiously. In fact, they were removed in the sight of at least one courthouse official and were returned by the judge without resistance when it was learned his actions had angered the senior judge.
While the fact-finding process was underway, the judge acknowledged that his conduct had been thoughtless and stupid and provincial authorities decided that there were no grounds to prosecute under the Criminal Code or heritage legislation. The independent counsel's report referred to the judge's behaviour as ``a foolish act by someone who should have known better" but said its adverse impact upon public confidence was diminished by the isolated nature of the incident, prompt restoration of the doorknobs, frank acknowledgement by the judge that he was wrong and his sincere remorse. It said the judge's behaviour was not grounds for removal from office.
The issue before the Judicial Conduct Committee was whether the conduct of the judge might warrant his removal from office, such that the Committee should recommend a formal investigation by the Council under the Judges Act. In line with the test for removal developed by the Inquiry Committee in the Donald Marshall Jr. Reference from the Attorney General for Nova Scotia, the Committee concluded in February, 1992, that "the conduct in question is not so manifestly and profoundly destructive of the impartiality, integrity and independence of the judicial role that public confidence would require the removal" of the judge from office. It therefore did not recommend a formal investigation.
The Committee advised the complainants and the judge that it viewed the conduct in question as thoughtless, and "a stupid thing to do". The Committee also issued a press release because of public interest in the incident.
The complaint file was opened when the chief justice of the court concerned advised the Council of allegations that a judge, in his previous career as a lawyer, had carried on a clandestine affair with the spouse of a client. The chief justice corresponded with the Council on the basis of a complaint to a law society about the judge's conduct just prior to his judicial appointment.
However, little more can be said about the complaint because key facts in the matter were provided in confidence by the law society.
The Committee engaged the services of an independent counsel who concluded that there "appears to be no evidence of sexual impropriety" in the judge's relations with the client's spouse. The Committee decided that no further steps were warranted.
The Attorney General of the province asked for a review by the Council after a Crown prosecutor and a court official made a series of allegations against a judge. The allegations were:
- a comment that Indians lie all the time;
- that the judge was sexist and was disposed to take allegations of sexual offences against women lightly;
- flagrant lack of diligence, including repeated failure to read documentation prior to hearings; and
- out-of-court comments indicating the judge had pre-judged certain cases.
The judge responded that his remarks about Indians had been misunderstood. Many Indians live in the region where the judge presided but he categorically denied saying "Indians lie all the time." He said the conversation took place in general terms.
He said he had discussed with the Crown prosecutor, outside court, the question of witnesses whose testimony did not correspond with statements they made before the trial. This had occurred repeatedly in his court, he said, and he thought the prosecutor needed encouragement to take it in stride. The Committee engaged an independent counsel but by the time his report was completed it was known that the judge would retire from the bench for health reasons before a formal investigation could be launched, if the need for such an investigation was found.
One complainant wrote about sexist remarks allegedly made by a judge at a roast at a legal gathering.
The Chairman agreed the judge's comments were unfortunate but he did not feel a broader inquiry was required. The Council expressed its disapproval to the judge and the Chairman noted that the judge "recognizes and regrets that there has been an indiscretion on his part."
In a complaint related to a sexual assault case, a number of individuals and organizations sought the removal of a judge, mandatory education for all judges on the subject of violence against women, some form of discipline for the judge or the appeal of his decision in the case. The complainants were upset over widely-publicized remarks in a written judgment that "at times no may mean maybe, or wait awhile."
The Chairman explained that if the Crown believed the decision was wrong, it was up to the Crown to file an appeal. And because the complainants were concerned the judge "may be sending inappropriate signals about the issue of sexual assault," the Chairman said he found the judge's words gratuitous and regrettable. However, he said removal of the judge from office for such remarks would be an indication the concept of an independent judiciary was "fragile."
In another complaint it was alleged that a judge's decision equated dedication to the Palestinian
cause with subversion and sought prompt disciplinary action.
The judge involved was asked for comments and a copy of his reply was provided to the complainant. The Chairman read the decision but found no basis for the complainant's conclusion that the judge "equates dedication to the Palestinian cause with subversion."
While presiding over a motion of interim custody and interim support, a judge was accused of making "biased, opinionated remarks" about a complainant's morals and personal conduct regarding a marriage breakdown.
There was no transcript of the proceedings but the judge apologized for certain remarks and stated that he "broke under the pressures of the day and...employed the wrong phraseology." The Chairman said the remarks were "unnecessary and unfortunate" but did not constitute grounds for further consideration by the Council.
Another complainant alleged that a judge's derogatory remarks during the course of a family law hearing were so serious, prejudicial and vicious that they warranted the judge's removal from office.
The Chairman advised the complainant that he felt the comments were "highly unusual and unwise" but because of the exceptional nature of the matter, no further action by the Council was warranted.
The president of a national women's group wanted a judge removed from office because she said the justice displayed feminist leanings during a public speech.
The chairman found no basis for a formal investigation and said he was of the view that the judge's "informative and thoughtful historical analysis will be of interest to all those who care to consider the important issues which she chose to address."
In another case, a very dissatisfied litigant in a support dispute alleged that a judge could not be impartial because he was a client with the company which employed the complainant. He alleged that he was the victim of a "grave injustice" because the judge "blatantly overlooked, disregarded and completely ignored" certain evidence.
He was informed that if the judge erred, an appellate court would be required to correct the error and that if the judge had been in conflict of interest it would have been appropriate for the complainant to raise his concerns at the time of the hearing.
One complainant in a family matter was upset with her ex-husband's support and access to their eight children. She asked that the judge be replaced for a hearing scheduled for a few days later.
The Chairman replied that he had no power to deal with her request and that if she was unhappy with whatever decision the judge made, she could file an appeal.
The mother of a teenaged sexual assault victim alleged that the presiding judge "acted in an unprofessional, insensitive and inappropriate manner" by permitting 50 Grade 12 students, many of whom would be at university with the victim in the fall, to be present when the daughter testified.
The judge was asked for comments and expressed sympathy for the victim and her family but the Chairman found no basis for the allegation of insensitivity.
A journalist's open letter to the Council calling for the removal of a judge who was involved in the handling of an aggravated sexual assault case, elicited about 50 complaints. The key concern was that a judge, writing for the majority, lowered the sentence to five years from nine years for a man who plead guilty to assaulting a seven-year-old girl.
All complainants were sent a copy of the decision pending the decision of the Supreme Court of Canada on the application for leave to appeal filed by the Crown. After the leave application was denied, all complainants were sent a second letter indicating that the Judges Act does not give the Council a mandate to review judicial decisions.