Sample of Complaints received during 1997-1998
A respondent in a divorce trial complained about "the lack of professional behaviour, the lack of understanding, empathy and knowledge about spousal abuse, and the unfair and immoral as well as illegal proceeding which occurred in the divorce trial". The complainant sent several letters to the Council and on each occasion was asked to specify instances of alleged inappropriate conduct on the part of the judge. She then alleged that when she appeared in court her lawyer had not been advised of the date of the hearing. She said the judge told her she was wasting her time and that people who had spent real money to hire a lawyer were waiting in the next courtroom. The complainant said the judge agreed to adjourn the proceeding in order to inform her lawyer about the hearing but added that if she did not have anything valid to contribute next time, she would increase the costs for the hearing.
The Reason for Judgment and a transcript of the hearing, provided by the judge, disclosed no misconduct on the judge's part. It appeared that the judge's main concern was to help the complainant find ways to settle her differences in a more reasonable way than returning to the court on issues that, after an 11-day trial, should have been dealt with between the parties.
A judge was alleged to have shown hostility and lack of respect towards four relatives of two boys who were the subjects of a custody and access dispute Of particular concern was the judge's alleged treatment of the maternal grandmother who had made a claim, independent of her daughter, for specified access to the boys. The judge provided a copy of the transcripts which disclosed that he had questioned the maternal grandmother's request for independent access as the evidence showed that there was no difficulty between herself and her daughter with respect to access. It appeared that the complainants were disappointed with the outcome of the case and may not have appreciated the judge's assessment of the petitioner's parenting ability.
The complainants were informed that it is the judge's role to make a determination upon considering the evidence before him and the fact that his views differed from those of the complainants did not mean that he was disrespectful. There was no evidence of misconduct on the part of the judge.
The wife in a support and property trial complained about the "very unnecessary" two-year delay in obtaining the judgment. Her counsel had written numerous letters about the delay, and she was concerned that perhaps the constant reminders might have had a negative bearing on the decision.
In reply to the complaint, the judge offered a sincere apology for the delay, which was relayed to the complainant. She was informed that while the delay in the matter was unacceptable, it did not amount to misconduct requiring further action by the Council.
A complainant made a number of allegations against a judge arising out of an application in Motions Court by the complainant's former husband to rescind arrears of support and to remove the collection of payments from the Family Support Plan. The complainant said the judge took a 15-minute recess to study the materials presented to him and when he returned to court he responded to the complainant's comments about the arrears by saying that he had not read the material and was taking the husband's word only. Other elements of the complaint alleged bias against the complainant because she was a woman, that he had wrongly ordered her to appear, that he criticized the provincial government, that he disliked computers, and that he erred in fixing arrears at nil and ordering the former husband to make future payments by postdated cheques. The judge responded that he had adjourned the court for about half a hour to try to straighten out the accounting between the materials supplied by the parties, rather than send them away to prepare proper material. At the hearing, he made a number of comments about certain alleged inadequacies in the Family Support Plan. Upon being interrupted, he made what he admitted was an unfortunate choice of sarcastic language about reading the material when it should have been obvious that he had read it and straightened out the accounting.
He apologized for his sarcastic remark, which was not intended to offend the parties. He denied that he was biased against women, and stated that he had criticized operation of the plan, not the government, and that his comment about computers related to the fact that they had failed to keep the accounts between the parties accurate. The complainant was advised that even judges sometimes become impatient, and that the Council had no jurisdiction to review the judge's decision.
The complainant had applied for a reduction of his support payments. He asked why his financial difficulties were not taken into consideration when the judge rendered a decision in September, 1996 ordering half of his RRSP and half his rental income to be paid to his ex-wife. The judge finally accepted a year later that he could not pay the support. The complainant alleged that the judge had refused to listen to his story. He also alleged that when the judge was in private practice the judge had acted as his lawyer and they had had disputes about the handling of his case. In the complainant's opinion, the judge's recent decisions about support payments reflected a personal vendetta against him.
The transcript indicated that the parties had full opportunity to present their case and that the judge made his decision on the basis of the evidence presented. The judge confirmed that he practised law for 17 years near the community of the complainant's residence. He did not specifically recall having the complainant as a client, or having disputes with him, but he said that since his appointment to the bench he had always been sensitive to the possibility of any conflict of interest with litigants before the court. The Council advised the complainant that the Court of Appeal must deal with any dissatisfaction with the judge's decision and that if he thought the judge should not have heard his case, he should have brought his concerns to the attention of the judge for disposition.
The complainant alleged that the judge had shown prejudice against her at the settlement conference. She alleged that the judge had made comments about her religion, about the impact of her mother's death and about support payments which were not the subject of the settlement conference. The Council noted that the dispute over access began in the fall of 1991 and that the complainant had been in court over the matter eight times, by which time the parties had established day access between the father and son. The complainant had then denied access for a month prior to the hearing in breach of a court order. It was pointed out that the discussion about religion was probably centred around denial of access at Easter. A number of other judges who had dealt with the matter had commented upon the antagonism and hostility between the complainant and the boy's father.
The tape recording of the settlement conference disclosed that the complainant had misunderstood the judge's role in the proceedings. The judge indicated her role was to tell the parties how she would decide the case if she had been the trial court judge. If the parties did not agree with her views then the case would be set for trial and the trial court judge would not know about any discussion during the settlement conference. Other comments of the judge were relevant to the proceedings. The judge indicated that in retrospect she perhaps did not realize how sensitive the complainant was to her criticism and, to the extent that it had upset her, she apologized. However, the judge said that this did not change her opinion about the case. The complainant was advised that there was no evidence of any misconduct requiring action by the Council.
Six letters of complaint were received regarding statements made in oral reasons for judgment about the nature of a sexual relationship between a man and a girl under the 14-year age of consent. The judge, in reducing a nine-month jail sentence to community service, said the relationship was criminal, but the girl had been a "willing participant".
The judge provided a detailed reply, outlining the context of the case. The only issue before the court was whether the sentence imposed by the trial court should be served in the community pursuant to the new conditional sentence legislation. The judge said that unfortunately he expressed the reasons for judgment poorly and he had used language which invited misinterpretation. The Council advised the complainant that, based on the information before it, there was no basis for further action.
Remarks by Mr. Justice Ian Binnie of the Supreme Court of Canada at a social gathering in Toronto were taken by some as a slur against the gay community, prompting extensive media coverage and a request for an immediate investigation. By the time the complaint was received, Mr. Justice Binnie had already sent a letter of apology to the Dean of the Osgoode Hall Law School, host of the banquet where he had spoken. He explained that as he read from a booklet on fraternity ritual he was reminded of an expression he had read years earlier describing a production of MacBeth as a "faggoty dress-up party". His letter continued: "The expression popped out last Saturday without any reflection on my part about its precise signification. I don't consider the word 'faggoty' to be appropriate, nor is the pejorative attitude that lies behind it acceptable, nor do I subscribe to it. Sometimes, as here, expressions that stick in your mind lose their original edge and significance with the passage of time. Individuals are deserving of equal consideration and respect and I certainly regret the fact that what was intended to poke fun at Phi Delta Phi was taken literally by some of the students."
The Council advised the complainant that the Chairperson of the Judicial Conduct Committee had concluded, considering the context and the apology, that "this single inadvertent, descriptive comment made in a social context, unfortunate as it is, does not demonstrate evidence of misconduct requiring any further action of this Council pursuant to its mandate under the Judges Act." A media release was issued on March 16, 1998.
An unrepresented litigant in a family law case alleged that the judge's decision not to grant an adjournment, and her decision on the merits of the case, were motivated by racism. The judge provided a detailed history of the matter as presented to her on the day set for trial, indicating numerous delays in a custody proceeding of urgency. She said she had reflected on what could have been done differently to have avoided the offense taken and could not think of anything. The only context in which the complainant's race was raised during the trial was evidence presented that the complainant had also made allegations of racism against other court officials whose recommendations he disagreed with.
The evidence showed that the complainant did not accept responsibility for what went wrong in his life but had a pattern of blaming others. The judge said the issue of his race or racism allegations against others played no part in her decision. The complainant was informed that only an appeal court could modify or change the judge's decision. There was no evidence of racial discrimination or other misconduct.
Two complaints concerned the conduct of a judge who presided at a bail hearing of an accused charged with second degree murder of his common law wife's lover and aggravated assault of the common law wife. The deceased's sister complained that the judge made inappropriate remarks and often defended the accused's action. The common law wife referred to comments contained in the transcript, related the circumstances of the tragic event, and indicated why she felt the judge erred in his conclusions.
The judge responded that the complainants had evidently misunderstood the situation when they suggested that he was in any way defending the accused's actions or that he failed to appreciate the violence that had occurred. He noted that considerations in a bail hearing are very different than those at trial and his remarks were directed solely to the question of the accused's detention. He said the events described in the complainants' letters were very different from those disclosed in evidence presented at the hearing and if presented could well have changed his consideration. Nothing he had said was intended to cause any further grief to the complainants. He regretted that his remarks were taken to imply that he was favouring the accused, that he did not appreciate the seriousness of the violence that had occurred, or that he suggested any blame on the second complainant for asserting her civil rights. The Chairperson found that the judge's observations were made for the purpose of giving Crown counsel the opportunity to make specific submissions. The judge's interpretation of the evidence was not open to a finding of misconduct, although it could be reviewed by the Court of Appeal.
An elderly person had willed a large part of his estate to the son of a employee working in the retirement home where he lived prior to his death. Two complainants, representing 13 nephews and nieces of the deceased person, said the judge's validation of the will was unjust and wouldn't have been rendered if he had known the whole story. They said the relatives had been denied their right to inheritance and feared that the retirement home employee would act in the same way to influence other residents.
The complainants were advised that the judge's role is to analyze evidence and apply the law. If one party contends that the judge has erred in his interpretation, it may appeal to a court of appeal. Only legislatures can amend laws. If the complainants believed the law in question was unjust or unclear, they could write the governmental authorities concerned to express their point of view. In this instance, there was no misconduct on the part of the judge.
The lawyer for a plaintiff in a professional negligence action complained of repeated intervention by a judge during the trial. He said the judge had appeared to be acting as a supplementary counsel for the defence. An expert witness had also complained that the judge had tried to upset her and cross-examine her. In another case, the complainant said an appeal court had made observations about the judge's conduct towards lawyers, finding some observations of the judge to be inappropriate.
The transcript of the trial giving rise to the complaint indicated that the hearing had lasted 11 days and that the judge had intervened frequently in proceedings. The judge explained that in such a complicated case, his task was not to remain passive but rather to act in order to be able to render a clear decision. He felt he had to ask for clarifications in order to obtain responses. Because the expert witness had tended not to reply to questions, the judge acknowledged he may have appeared impatient. The transcript indicated that the plaintiff objected frequently and that the judge considered many interjections as baseless or premature, leading to a number of exchanges between lawyers and the judge. The Chairperson advised that the appeal court was the proper forum to decide whether the judge's interventions prevented the plaintiff from presenting his evidence. The judge's conduct did not justify the Council's intervention in terms of its mandate, given the technical nature of the case, difficulties of some witnesses in their testimony, and the judge's attempt to understand the facts necessary to render his decision.
Six complainants wrote, apparently on the basis of media reports, to complain about a judge's charge to the jury in a widely-publicized criminal case. The complainants were sent materials relevant to their complaint pending the decision of the Court of Appeal on the Crown's appeal.
After the Court of Appeal's decision dismissing the appeal, a further letter was sent to the complainants, advising them that there was no evidence of misconduct on the part of the judge, although it was understandable why, on the basis of the media reports, the complainants would want to draw the matter to the Council's attention. Some media reports had distorted the judge's decision and misconstrued the judge's comments.
The complainant, in an eviction proceeding, alleged that the judge did not allow him to enter in evidence affidavits from witnesses as to his character. He alleged the judge went out of his way to insult his character although he had refused to hear evidence on that question. The judge had made a point, in his written decision, of saying that he was a "combative, volatile and somewhat irrational individual". Costs had been awarded against him although he had "won", and he did not feel he could appeal the case. He felt he had been libelled.
The judge indicated that the affidavits dealt with the impact of an incident on other tenants' enjoyment of the premises, which didn't seem to him to be relevant. The judge's finding with respect to the complainant's character was based on the evidence before him, and was necessary to explain the conditions he imposed on the complainant's continuing occupation of his unit. The complainant was advised that the Council has no authority to review whether a judicial decision was right or wrong, or second-guess a judge on admissibility of evidence or credibility of witnesses.
The complainant alleged that her brother, who had been sentenced to 4 1/2 years in prison, had not been given the benefit of a "restorative justice approach". She stated that the judge's comments exceeded the bounds of what was necessary to stress the seriousness of the crimes. Despite the fact that her brother expressed a strong desire to embark on a difficult course of restorative measures the judge did not think anyone should place great reliance on a minimal effort made by her brother, given his past history. The judge had questioned what her brother's own children would think of some of his actions and the complainant saw this as an unfair attack on her brother's relationship with his children. The judge stated that the complainant did not report his comments accurately and her criticisms did not take into account the facts presented before him. He explained that, when there is a reasonable prospect for rehabilitation, this is taken into account in determining the actual sentence. However, in this case, the accused's lengthy record, mature age and the severe impact of his actions on his victims were aggravating factors far more serious than the mitigating factors presented by the complainant.
The accused had an opportunity to describe his rehabilitation efforts but did not do so, and submissions from defence and Crown counsel did not include any "restorative measures". The complainant was advised that the material did not provide evidence of any misconduct on the part of the judge.
The Chinese Canadian National Council (CCNC) complained in a news release, and subsequently in a formal letter to the Canadian Judicial Council, about questions asked by Chief Justice Antonio Lamer in the course of argument of a case before the Supreme Court of Canada. Chief Justice Lamer responded directly to the CCNC, before the complaint was received, offering his apologies "if I have offended the Chinese community", and noting that his questions were directed against the use of stereotypes in establishing credibility.
The complaint was referred to the Chairperson of the Judicial Conduct Committee, who expressed regret that the CCNC felt aggrieved by the statements and said he understood the sensitivities that generated the organization's complaint. His view, supported by outside counsel, was that the remarks could not be characterized as misconduct requiring a recommendation for a formal investigation under the Act. In a letter to the CCNC, the Council said it was apparent from the context that the Chief Justice's remarks were hypothetical in nature. It was clear from a full review of the transcript that Chief Justice Lamer's purpose was to test the propositions being put to the Court by counsel in argument and to explore the dangers of a trial judge taking into account race or racial stereotypes when assessing the credibility of witnesses. The Council noted that the complaint had helped to focus attention on "an important and often misunderstood aspect of the conduct of judicial processes, particularly at the appellate level. Under our legal tradition, often of necessity, hypothetical questions are posed by judges during the course of argument of a case. The purpose of doing so is to illuminate for the Court the full implications of the matters at issue from both a factual and a legal perspective . . . For this reason, exchanges between counsel and judges during the course of legal arguments are often wide-ranging, probing and exploratory in nature. It is in the interests of the administration of justice that the ability of counsel to engage in such unrestricted advocacy, and the ability of judges to engage in frank and wide-ranging discussion with counsel, continue." A media release was issued on January 23, 1998.
A complaint was prompted by a newspaper article based on an interview with a Chief Justice about the courts' interpretation of the Charter. The complainant disagreed with the views reported, arguing that the Chief Justice gave as much or more legal weight to money as to the primacy of the law, and put himself in the position of a legislator. The Chief Justice said that during an interview of more than an hour he had discussed the exercise of the courts' jurisdiction related to the Charter. He explained the choices before the court when a case of discrimination is at issue, indicating that in some circumstances judges must take into account the ability of taxpayers and governments to pay.
Outside counsel reviewed the complaint and agreed with the conclusion that, while the complainant disagreed with the views expressed and had the right to his opinions on the issue, there was no indication of misconduct on the part of the Chief Justice.
A complainant alleged actual or apprehended bias on the part of two Chief Justices, and a conflict of interest on the part of another judge. He said the first Chief Justice, because he chairs a provincial judicial council, should not have heard an appeal against his conviction for making harassing calls to a court employee. Following the dismissal of that appeal, he applied before the second Chief Justice for leave to appeal to the Court of Appeal. That application was dismissed on the ground that no such appeal is available. He made a complaint that the second Chief Justice was in a conflict of interest as he had control over the court employee. An application to the Court of Appeal to review the dismissal of his application for leave to appeal was in turn dismissed on the basis that it was not permitted by the Criminal Code. The complaint against the judge alleged that the judge should not have heard an application involving a lawyer because the judge had been a bencher of the Law Society when the complainant had made a complaint against the lawyer some years earlier. He also alleged the judge should have disqualified herself because her former firm was counsel in an injunction matter.
The complainant was advised that the material he provided disclosed no evidence to support the allegations of a conspiracy, oblique motive or other judicial misconduct on the part of the chief justices or judge. He was informed that the existence of real or apprehended bias or impartiality is a question of law that should have been raised at the opening of his hearings. The Council had no mandate to make determinations in these matters. The file was reviewed by independent counsel who agreed with the conclusion.
An unrepresented litigant in an action taken against his investment brokers wrote asking that the Council change some of the court's decisions. He described the procedures and decisions taken in his case in the last four years. His action had been dismissed by a first judge, and within his appeal a second judge had granted his application to enter an affidavit, ordering that security be paid for appeal costs. He said his difficulties related mainly to the content of his statement of claim and the orders for security for costs. He claimed he had been discriminated against by many judges and wrong had been done to him by the two judges. He alleged a personal relationship between the second judge and the defendant's lawyer. The second judge was asked for comments on his friendship with the lawyer. He said he knew of the lawyer by reputation as he would know of other lawyers appearing in court. He had no personal or social contact with the lawyer, although years earlier at a business lunch the lawyer had introduced him to a journalist who wished to write a series of articles about judges.
The complainant was informed that the Council could not change the decisions and there was no evidence of any misconduct on the part of the judges. Because one of the judges complained against was a Council member, independent counsel reviewed the file and agreed with the disposition.
A complainant alleged a variety of wrongdoing by three judges and a Chief Justice over a series of actions dating back to an inquiry into the complainant's handling of trust funds as the former guardian of his sister's children. The gist of the complaints against the judges related to failure to consider evidence and erroneous statements of the facts and law. The complainant alleged that the Chief Justice did not address his complaint against the Referee who conducted the original inquiry. The complainant asked the Council to "use whatever power [it has] to bring about a formal independent review and investigation or cause this matter to be formally and properly addressed in some other way." As a result of his unsuccessful attempt to reopen his case he alleged "some form of cover-up" or conspiracy to protect a justice official.
The complainant was informed the Council had no jurisdiction with respect to one judge who had died two years previously. An appeal of the decision of the Referee or judge was the only recourse available to the complainant. The allegations of bias, cover-up or conspiracy were found to be unsubstantiated. The material sent by the complainant disclosed no indication of any misconduct that would justify any further action by the Council. Independent counsel reviewed the file and agreed with its disposition.
A complainant alleged that in his reasons for judgment a trial judge exhibited "ethnocentricism, a strong bias against Aboriginal peoples, their rights, their culture, and the legitimacy of their claims, and a distinct lack of cultural sensitivity."
After receiving comments from the judge, the file was referred to a three-person Panel. The Panel dealt with the file after the Supreme Court of Canada declined to entertain an appeal of the appeal court's decision to order a new trial because of an apprehension of bias. The Panel found that in his reasons for judgment the judge invoked unnecessarily disparaging and offensive language on matters of little or no relevance to the determination of the case. While it concluded that there was no malice or false motive involved, and that no investigation pursuant to subsection 63(2) of the Judges Act was warranted, the Panel directed that the file be closed with a letter to the judge expressing its disapproval of some of his language. The Panel advised the complainant that it was conscious of the fundamental importance of judicial independence in judicial decision-making, and that it is fundamental to the rule of law that judges exercise and candidly articulate independent thought in their reasons for judgment. Nevertheless, the Panel also recognized that judicial freedom of expression has inherent constraints arising out of the judicial office itself. Freedom of expression must be balanced with the need for public accountability, ultimately, to preserve public confidence in the judiciary.
A senior official of a provincial government complained about the conduct of a judge who presided over two serious criminal trials where the judge declared mistrials, in one case after four years of proceedings. The complainant alleged that the conduct disclosed a record of significant judicial mismanagement and an apprehension of bias against the Crown, and that it appeared the judge had been in inappropriate contact with the defence counsel during the course of proceedings.
The judge's comments were provided to the complainant, whose response was sent to the judge for further comments. The file was referred to outside counsel. A three-member Panel concluded that in one of the two cases of concern, the judge did in fact have inappropriate ex parte contacts with defence counsel, but the conduct was not serious enough to warrant a recommendation for a formal investigation. The judge was advised of the Panel's disapproval of his conduct, and the complainant was advised accordingly.
A complainant alleged that a Chief Justice should not have removed the trial judge in a case in which the complainant's aboriginal band was a party. He also alleged that the Chief Justice had said during a telephone conference call that he would not put a judge of the Jewish faith on a case involving war crimes, or an aboriginal judge on cases involving aboriginal matters, at least not immediately following the appointment of the judge to the bench. The complainant believed the remarks were discriminatory and an unjustified affront to aboriginal peoples and members of the Jewish faith. The head of a national Jewish organization joined in supporting the complaint in a separate letter of complaint to the Council.
In response, the Chief Justice said he had replaced the trial judge after learning that he was personally acquainted with members of the band that was a party to the court action. He said he did so in order to prevent the trial being spoiled or delayed by motions based on "a reasonable apprehension of bias" on the judge's part, even though the judge's objectivity was not in question. With respect to the telephone conference, the Chief Justice said that, on the basis of his experience with Jewish judges on his court, he "said and intended to say" that he would not ask them to preside "against their wishes" at a war crimes trial or proceeding involving the Holocaust. In the same way, "I would not appoint an aboriginal judge, against his or her wishes, to preside at a trial involving aboriginal rights." A three-member Panel found no evidence of misconduct or any basis for further action. The Chief Justice had replaced the trial judge in good faith and after careful consideration. With respect to the differing versions of what was said during the telephone conference, the Panel accepted the Chief Justice's explanation. The Panel acknowledged that it would be totally unacceptable for a judge "to state he considered a Jewish judge ineligible to preside over a war crimes case, or that he would never assign a Jewish judge to such a case but, as set out in (the Chief Justice's) letter, that is not what he said or meant to say."
The head of an association complained that members of the association were obliged to appear before a judge who, according to news reports, was in serious financial difficulties. He alleged that the judge's financial situation might cause prejudice to the concept of impartiality.
The file was referred to an outside counsel, whose report was considered by a two-member Panel. The Panel concluded that, at the time of the complaint, the financial situation of the judge could be considered alarming and prejudicial to the judicial image. Although the Panel concluded that an inquiry under subsection 63(2) of the Judges Act was not warranted, it expressed disapproval about the judge's financial situation at the time of the complaint and the fact that he took a significant amount of time to start finding ways to regulate his financial difficulties. The Panel said the judge should be vigilant in dealing with his financial situation.
A lawyer, on behalf of a client, complained that the judge had discussed the client's case publicly with several people in the community prior to receiving final submissions and issuing his decision. The matter had been appealed on the basis of an apprehension of bias, but the client also requested that a complaint be filed regarding the conduct of the judge. The lawyer subsequently sent a further complaint about a chambers matter in which the judge was highly critical of the lawyer's client and commented negatively on acceptance of the client as a purchaser of estate property.
The file was held in abeyance pending the decision of the court of appeal, which ordered a new trial on the basis of a reasonable apprehension of bias. The judge subsequently acknowledged that his public comments on the case were "ill-considered, unfortunate and inappropriate" and expressed his sincere regret at the inconvenience that his mistakes had caused. A two-member Panel expressed disapproval with respect to the conduct of the trial, but concluded that there was no basis for further action by the Council. The Panel concluded that there was no evidence of misconduct in relation to the chambers matter.
A lawyer who acted on his own behalf in a civil action alleged that in a motion hearing, the judge rendered a decision without hearing both sides and without fully apprising himself of the nature of the issue before him. The lawyer felt that he had been treated in a disrespectful manner, and ordered out of the court.
The judge admitted that he had been "curt" in dismissing the complainant's position, and extended an apology to the complainant. A two-member Panel advised the complainant that it had expressed its disapproval of the judge's conduct and concluded that there was no basis for further action by the Council.