Sample of Complaints received during 1993-1994
In one complaint, a judge's chief justice forwarded to the Council newspaper articles concerning the judge's tardiness in delivering judgments.
The judge admitted he had a number of cases where judgment was delayed for more than three years but said the delays were due to domestic problems which were now behind him. The chief justice subsequently advised that the judge had dealt with some of the outstanding delays, including the case where judgment had been delayed for three years. Subsequent correspondence revealed that the judge reached the point where there were no judgments outstanding past the recommended six-month period.
In another file, a complainant alleged that a judge had unduly delayed rendering judgment.
The record showed that there had been many delays in bringing the matter to trial, but that the judge had not contributed to the delay and in fact had tried to expedite matters on a number of occasions.
A complaint of gender bias against women from approximately 14 individuals and interest groups protested a judge's decision to suspend sentence and impose one day's probation against a man convicted of sexual assault.
Following a successful appeal by the accused the Chairman concluded that the judge's comments were directed to deciding the particular case on the evidence before him. The complainants were informed that there was no evidence in the record of any words or behaviour which could be construed as prejudicial against women.
A second complaint of gender bias against women was from a lawyer who appeared before the judge in chambers on a motion for increased spousal support. A complaint was also filed by the lawyer's client. The complainants alleged that the judge had made a number of negative comments about the attitude of women who receive child support which would lead to an apprehension that such women, when litigants before him, would not receive an unbiased hearing. The judge apologized for his comments but explained that they were made in chambers and that he would not have made them had he known non-lawyers were present in the room. The judge explained that his comments were in the way of a theoretical discussion of recent developments in the law. He also took issue with the lawyer's negative interpretation of the order made, which was favourable to his client. The Chairman concluded that some of the expressions used by the judge were inappropriate and improper but that there was no basis for further investigation by the Council. In a letter to the client-complainant, the judge's sincere apology was noted. A letter to the lawyer-complainant noted that the judge's comments should be taken in the context of the circumstances in which they were made.
In a complaint of gender bias against men, the complainant, who represented himself in custody proceedings, claimed the judge was more lenient with the female litigant and opposing female counsel and alleged the judge demonstrated bias against men.
The judge stated that the complainant had been given ample opportunity to present his case and that he had made his decision based on the merits of the case before him. The Chairman concluded that there was no evidence of judicial misconduct on the part of the judge in question.
In another file concerning gender bias against men, a complainant alleged that judges, in rendering a decision against him, demonstrated bias on the basis of his gender. The complainant, who represented himself, claimed that the judicial system, in attempting to rectify past wrongs against women, now discriminated against men in custody proceedings.
The Chairman found no evidence of judicial misconduct.
In a file involving racial bias, a complainant alleged that the judge discriminated against her because she was black. She claimed that the judge stared at her during the proceedings, interrupted her and refused to award custody to her on that basis.
The judge explained that he had granted custody based on the best interests of the child and that the complainant's race had nothing to do with his decision.
Another file came from complainants who alleged that the judge had made derogatory remarks about Greeks in discussions off the bench at the time the judge was hearing the complainants' case. The complainants, who were of Greek descent, feared the judge's comments revealed a bias against them. A lawyers' association complained about the same remarks.
The Chairman directed that a fact-finding investigation be carried out. The file was closed as discontinued before the investigation began because the judge died.
A complaint of religious bias was filed by a complainant who alleged that a judge in custody proceedings had made negative comments about Islam and the Muslim religion practised by the complainant.
In response, the judge noted that the complainant had raised the issue of his religion. The judge had explained to the child the difficulties in strictly practising the Muslim faith when her mother was non-Muslim. The judge had emphasized the importance of letting the child choose her own religion without undue influence from either parent. The Chairman concluded there was no evidence of judicial misconduct.
Another complaint of religious bias involved a representative of a civil rights group who alleged that the judge was biased against a witness because the witness affirmed, rather than swore the oath. The complainant pointed to a sentence in the judgment as evidence of the bias.
The judge asked that the impugned sentence be read in the context of the whole judgment and stated that in his experience there was no difference in the truthfulness of witnesses who affirm and those who swear an oath. The Chairman concluded that there was no evidence of bias.
In one case, a complainant alleged that a judge demonstrated bias, and therefore conflict of interest, towards the opposing party (the wife) in divorce proceedings because the wife was an employee at the courthouse where the judge sat.
The judge explained that one year earlier he had the file transferred to another district because of a potential conflict of interest should any judge associated with that courthouse hear the matter. The incident complained of involved the judge seeking to clarify why the wife had been cited for contempt of court. The Chairman found no evidence of judicial misconduct.
In another case, the complainant was the alleged victim of a sexual assault. She claimed that the judge and the accused had "socialized" on a number of occasions, that the judge had been counsel for the government agency that the complainant was suing in civil proceedings, and that counsel for the accused was a former law partner of the judge. The complainant alleged that the judge had entered a stay of proceedings because of these relationships.
The judge denied the allegation in a point-by-point rebuttal and noted that the Crown had requested the stay in lieu of an order for the appointment of an outside prosecutor. The Chairman concluded that there was no evidence of misconduct. The complainant was informed that there was no reason why a judge should not hear a case presented by a former law partner after eight and a half years, particularly in a case such as this, where there was complete disclosure and neither party objected.
One complainant, a lawyer, was upset that a mistrial had been declared in a murder trial because the judge, formerly of a trial court, believed he no longer had jurisdiction to hear the case after being appointed to a court of appeal. The complainant was "deeply disturbed" that the accused had not been prosecuted successfully at a second trial because a witness was unwilling to testify a second time. The accused later committed a murder and had pleaded guilty to a charge of first degree murder.
The judge's chief justice was contacted for more information and the complainant was subsequently informed that the Council had no jurisdiction in this "unfortunate matter." The complainant was informed that the judge did not have "continuing jurisdiction to complete the case in question as would have been the case in other Provinces where there is legislation providing for such a problem."
In another file, a complainant writing on behalf of a French language lawyer's group took exception to a letter written by the judge to a lawyer who had requested a French-speaking judge for a court hearing. The judge had told the lawyer that, in order to have a French-speaking judge preside, advance notice was required.
In response to the complaint, the judge said he fully supports and "is most sensitive to the language rights" of French-speaking parties but because there were no French-speaking judges in the region concerned, advance notice was required so that a judge could be brought in from another region. The judge also noted that some time previously, he had personally invited the complainant group to nominate a member to sit on a Bench and Bar Committee to represent French-speaking lawyers in the region. The judge noted that the group had declined to do so because of the small number of members in the region.
Another complainant alleged that a judge had predetermined the outcome of a breach of contract case without hearing the evidence.
After reviewing transcripts, the Chairman concluded that the judge had acted improperly in moving beyond a general inquiry before the trial commenced. The matter was brought to the attention of the judge.
The plaintiff in a negligence suit claimed a judge had repeatedly commented on her physical attractiveness and social life. She stated that she had "found [herself] in the awkward position of feeling that the trial judge was flirting with [her]."
The file was referred to a Panel which concluded that the judge's comments had been both inappropriate and regrettable. In a letter to the judge, the Chairman of the Panel clearly enunciated the Panel's disapproval of the judge's comments. He also stated that "judges are expected to refrain from comments that might be perceived to be patronizing or demeaning or to concern irrelevant matters relating to gender, race, religion or colour." However, the Panel said the comments did not constitute grounds for a formal investigation under s.63(2) of the Judges Act.
Complaints 17 and 18
In another file, the complainant, who said she was a victim of spousal abuse, alleged that the judge referred to her motion to attend the examination for discovery of her husband as "silly," thereby trivializing her concerns. The complainant felt the judge's comments were "totally inappropriate" and did her "a great disservice."
Following receipt of the judge's comments, the Chairman directed that a fact-finding investigation should be carried out. The complaint and investigator's report were referred to a Panel. The Panel found that although the judge's behaviour did not warrant a formal investigation as to whether the judge might be removed from office, his comments were "inappropriate and regrettable."
Another complaint against the same judge was considered by the same Panel. The complainant alleged that the judge had made inappropriate comments and had demonstrated "blatant socio-economic biases."
The judge acknowledged that his conduct was unfortunate and inappropriate and asked that his apology be extended to the complainant. The Panel closed this file on the basis of the judge's apology.
A provincial law society directed the Council's attention to an instance where a judge had heard an ex parte motion brought by the judge's son who was not a lawyer but was acting as an agent for the lawyer of the applicant.
After receipt of initial comments from the judge and chief justice, the matter was referred to a Panel which recommended that a fact-finding investigation should be conducted. The investigator found that the order was obtained to gain access to confidential government records concerning the husband in matrimonial litigation. The investigator concluded that the judge had acted improperly in hearing a submission from his son and in making such an order. It was noted that the judge had never acknowledged that the proceedings in question were irregular. It was suggested the judge reconsider his position on the matter. The judge subsequently acknowledged his mistake and gave an assurance that such conduct would not be repeated. A letter was sent to the judge expressing the Panel's strong disapproval. A copy of the letter was sent to the law society.
A native people's group complained that the judge demonstrated strong bias against a native defendant which resulted, in the complainant's opinion, in the judge admitting Crown evidence which should have been excluded. An appeal court ordered a new trial for failure to admit relevant evidence.
The judge was asked to respond to the complaint but did not. However, in a detailed, unsolicited letter to the Council, a fellow judge suggested "that the complaint should be held to be without foundation." A Panel unanimously concluded that the judge had displayed an insensitivity to cultural and religious differences, was discourteous, sharp and abrasive to defence counsel during his charge to the jury and in his discussions with her upon completion of the charge. The Panel also concluded that the judge had challenged defence counsel during the trial "in a manner that might be described by some as arrogant" and said the record "[was] filled with examples of how a judge should not conduct himself during the course of a high profile trial involving sensitive and cultural issues."
On the Panel's recommendation, a fact-finding investigation was initiated. On being informed of the investigation, the judge wrote to the Council expressing regret for his inappropriate behaviour and noting that he had attended a workshop on cross-cultural problems and was making a concerted effort to acquaint himself with native issues. The Panel concluded that a formal investigation under s.63(2) of the Judges Act was not warranted but a letter was sent to the judge expressing disapproval of his conduct. It was pointed out that while the Panel had concluded a formal investigation was not required, the judge's attempts to correct his behaviour would be less convincing should a similar complaint arise in the future.
The complainant protested an eight-month delay in rendering judgment in a custody trial. The complainant also claimed the judge had been unduly influenced by a men's interest group in reaching his decision.
When asked to respond, the chief justice described a pattern of delayed judgments which resulted in the judge being given a six-week break from court duty and the assignment of less complicated cases to bring his judgments up to date. Because the matter was first considered in September 1992, prior to a change in Council by-laws affecting the complaints procedure, it was considered by the full Judicial Conduct Committee rather than a Panel of the Committee. The Committee recommended a fact-finding investigation which took place in the year under review. The investigator recommended that a medical opinion be obtained. A medical diagnosis showed that the judge suffered from memory problems. The judge subsequently resigned for reasons of disability and the file was closed as "discontinued".
In another file, a complainant cited a delay of more than 10 months in rendering judgment.
Further investigation showed that the complaint concerned was one of several outstanding judgments delayed more than six months. As a result the Chairman of the Committee directed that a fact-finding investigation should be carried out. Although the judge had made a significant contribution to the administration of justice in more than 30 years on the bench, the investigation showed that there had been several delayed judgments during the last 20 years, some for as long as five years. The fact-finder concluded that further investigation under s.63(2) might be warranted. The Chairman referred the investigator's report to a Panel. The Panel concluded that a formal investigation should be initiated on the ground that the judge may have become incapacitated. The judge retired before the Panel's report was considered by the Council, and the file was closed as "discontinued".