Sample of Complaints received during 1999-2000
Members of a national parenting organization alleged that the judge's decisions consistently revealed a bias against non-custodial parents and children of divorce. They also alleged that the judge had made clear on many occasions that she was unable to separate her personal agenda from the duties of her appointment, which in the complainants' view was morally wrong and put the administration of justice into disrepute. They stated that the judge's judicial activism should be curbed as it did not reflect the common sense experience of ordinary citizens. In a second letter, one of the complainants complained about the Supreme Court of Canada's decisions in the family law area and stated that the Court "has set an unacceptable tone in its family law decisions." He asked the Council to launch an independent inquiry into the behaviour of all federally appointed judges "on the family law bench."
The complainants were informed that they had provided no evidence of bias on the part of the judge other than their disagreement with her decisions. With respect to the complaint against the Supreme Court of Canada, the concept of judicial impartiality was explained. The complainant was advised that he had provided no evidence of bias. He was also advised that the Council had no mandate to conduct an inquiry as requested in his letter.
The complainant was an unrepresented party on her motion to vary child support. She alleged that the judge was biased against women and against her, yelled at her and belittled and abused her during the hearing, demonstrated unconscionable support of her ex-husband and refused to admit into evidence police reports and ledger sheets that supported her case.
A review of the transcript of the hearing did not support the complainant's version of events. The hearing had taken most of the afternoon, and the complainant and her ex-husband, who was also unrepresented by counsel at the hearing, argued with each other throughout the hearing. The judge had treated the parties in an even-handed manner, seeking to confine them to the relevant issues on the motion. The transcript did not support the allegation that the judge had belittled the complainant or abused her. With respect to the admission of documents into evidence, the complainant was informed that the judge had made a similar ruling on a request by the complainant's ex-husband. If the complainant disagreed with the judge's decision, her only recourse was to appeal the decision. There was no evidence of judicial misconduct.
Complainant A alleged that the judge's judgments were "repeatedly anti-male". In requesting removal of the "feminist judge" from the bench, the complainant expressed approval of an article impugning the judge's ability to "judge impartially" in view of comments the judge made at a conference. Complainant B alleged the judge was an "outspoken feminist and political ideologue". In support of his complaint, this complainant also relied upon another newspaper article criticizing the judge's alleged "impropriety" for "speaking out" on a controversial issue.
Complainant A was advised that his allegation of an anti-male bias had not been substantiated. On the question of impartiality, complainants A and B were advised that while traditionally judges do not speak out about their decisions, judges have often participated in educational conferences and proceedings of learned societies. The judge's comments were hardly enough to establish an inference that the judge would not judge future cases fairly. The complainants were informed that if a party had any apprehensions about a judge's impartiality, the law entitled that party to seek recusal of the judge from the case
The complainant was the sister of a child who was the subject of a Christmas access dispute. She stated that the child's father, who was seeking access over the Christmas period, was abusive towards the child, herself and others. She stated she was shocked when the judge ordered that the child spend part of the Christmas period with the father, notwithstanding the allegations of abuse.
The judge stated that he was as mindful as anyone on the Bench of the terrible consequence of child abuse and domestic violence. He said he had resolved the Christmas access dispute as best he could based on the material before him and the submissions of counsel. The comments of lawyers for the parties, who were present at the hearing, supported the manner in which the judge conducted the hearing and did not bear out the complainant's version of events. The complainant was informed that there was no basis for a finding that the judge had acted improperly.
In a widely publicized complaint, a national women's group alleged that a judge had failed to "impartially apply the law and decide cases in accordance with their legal merit". The group asked the Council to recommend that the judge be removed from office because "by her failure to impartially and objectively interpret the law, in identifying herself solely with the legal perspective of feminists, and in her personal attack on another judge" she had "placed herself in a position incompatible with the due execution of her office". Two other complaints were also received as a result of the publicity given to the main complaint.
The complainant was advised that some of the information in the letter of complaint about the judge's involvement in various groups appeared to be inaccurate and that the judge's language "was well within the ambit of the case and therefore not outside the realm of appropriate judicial conduct." The Chairperson found no evidence of judicial misconduct.
The complainant, a lawyer, was a party in family law proceedings. Many of his allegations related to decisions made by the judge in the course of proceedings. Outside counsel was asked to undertake further inquiries because the complaint referred to four highly unusual incidents: i) that the judge telephoned a lower court judge who then told the complainant, in open court and in front of his clients, that unless he returned to appear in court, a warrant would be issued for his arrest; ii) the complainant's arrest, while arguing a case before an appellate court, as a result of a warrant issued by the judge; iii) the commencement of a custody trial in which the child was unrepresented by counsel and the complainant was the respondent, without having received notice; iv) an apparently extraordinary access order which limited phone calls between child and father, required that all such calls be monitored by the mother or her designate, authorized peace officers to pick up the child and return him if he left the mother's home, and prevented the child from seeing his father for 90 days.
Outside counsel reviewed the copious material provided with the complaint, and conducted interviews with a number of individuals. He reported that: i) the complainant's allegation did not reflect well on his credibility, as no such call or comment took place; ii) the judge had no involvement in the circumstances of the arrest; iii) while the circumstances of the incident were certainly extraordinary, the judge was faced with a perceived crisis situation and responded, as he was entitled to do, in a manner which he thought was in the best interests of the child; iv) in the context of the extraordinary circumstances which the judge was facing, there was nothing in the order which could be characterized as improper judicial conduct. The findings were communicated to the complainant, who was advised that there was no basis for any further action by the Council.
The complainant alleged that the judge who had heard her original motion should not have sat on the panel dealing with her motion for reconsideration.
The complainant was informed that the judge's decision not to recuse himself was a judicial decision. The Council has no authority to review the decision to determine whether it was correct or not. It was explained that it is usual for the original panel that hears a matter to hear an application for reconsideration. Otherwise, litigants could obtain successive hearings before freshly constituted panels which would be tantamount to a second right of argument about a matter that had already been decided.
The complainant alleged that the judge had shown bias in remarks about her brother in the course of family law proceedings regarding interim spousal support. She alleged that in her brother's first appearance, the judge had made a prejudiced comment about truck drivers and their statements of account, as well as an unprofessional remark about her brother's claimed entertainment expenses. She also alleged that the judge had made errors of fact and of credibility. The complainant wanted to know if the Council thought her brother had been treated fairly.
The complainant was advised that any alleged errors regarding findings of fact or credibility constituted grounds of appeal. The Council had no authority to express an opinion on whether the brother had been treated fairly, a question one would test on appeal. The judge indicated that the first appearance had probably occurred during a case conference. The newly introduced family law rules required that no motion could be argued before a case conference had been held. The judge pointed out that the holding of case conferences was a new concept with which the courts were struggling. They involved informal dialogue among judges, counsel and sometimes the parties. In such conferences, the judge's task was to attempt to narrow the issues and explore the possibilities of settlement without offering an opinion upon the outcome of the matter in dispute. The complainant was informed that this often required frank and open discussion, the nature of which was not always easily understood by the inexperienced lay person. The judge apologized if his remark about the entertainment expense caused offence to the complainant. However, he denied having made any prejudiced remark about truck drivers and the juggling of their statements of account. While expressing his regret that the complainant went away with an unfavourable impression of family court, the judge affirmed that he felt no prejudice had been shown or felt towards her brother. The judge believed that both parties had received a full and fair hearing at which they were represented by able counsel. The complainant was provided with a copy of the judge's response to the complaint and advised there was no basis for further action by the Council.
Parents whose daughter had been killed in a car accident involving the accused complained that the judge had favoured the accused, while ignoring the rights of the victim. They objected to the adjournment of the trial date because the accused did not have a lawyer. They also alleged that the repetition of an instruction to the jury constituted leading the jury and caused confusion in their minds.
The complainants were advised that any alleged errors in the judge's instructions to the jury could be reviewed only by way of appeal by the Crown. It was pointed out that lack of legal representation for the accused could potentially deprive him of a fair hearing. The complainants were advised that it is essential under our system of justice that the process of bringing an accused to trial respect the presumption of innocence -- a fundamental principle of the common law - coupled with the right to have a fair and impartial hearing.
The complainant was the mother of the accused at a criminal trial. She alleged that her son did not get a fair trial because the judge did not have control of the proceedings. She also alleged
that the judge wrongly declared a mistrial. She said the judge ordered her not to make eye contact with the alleged victim or her son or give signs of encouragement to him.
The complainant was informed that if the Crown or her son believed the judge erred in declaring a mistrial, the judge's decision was reviewable on appeal. She was informed that every judge controls the proceedings by different means. At the end of the day, the judge's performance must be judged by the rulings and decisions made in the course of the proceedings. The complainant was advised that there was no evidence of misconduct arising from the manner in which the trial was conducted. She was advised that judges make orders necessary to ensure that witnesses give their testimony undistracted by behaviour of those in the body of the courtroom, which was apparently the case here.
The complainant, who was unrepresented on a motion, alleged the judge refused to listen to her submissions and refused her request to have a court reporter present. She stated that when she questioned the judge about "the rule regarding a material change in circumstances", the judge refused to deal with her question appropriately, implying that the volume of her ex-husband's court documents indicated, in itself, a material change in circumstances. She alleged the judge cut her off, ignored and interrupted her. She said her request for legal representation for her son was rejected.
The judge provided a comprehensive response and documents from the court file. He stated that the complainant had been awarded access to the children of the marriage and the father had been awarded custody. The hearing in question -- which occurred more than 15 months prior to the complaint -- was an emergency motion to deal with but one aspect of the husband's application to vary the terms of the complainant's access and was a request that the court make an order requiring the complainant to provide the address and phone number where the complainant and one of the children could be reached over the spring break. The complainant had provided only a vague response to the question. The lawyer for the husband had also requested an address and phone number where the child could be contacted when the complainant exercised access. The complainant had refused to answer and walked out of the court room. The judge stated that he had not denied the complainant the opportunity to file materials. The judge denied he had been rude or abusive. He stated he was firm with the complainant regarding the need to provide the information requested in the best interests of her child. The complainant was advised that she had provided no evidence of misconduct.
The complainant was a party in family law proceedings. The complaint related to a provision in the Divorce Act that prevented the withholding of a religious divorce as a means of coercing the other spouse. The complainant and his wife had not obtained a religious divorce -- a "get" -- under Jewish law. The complainant alleged that the judge denied him the option of observing his religious beliefs by instructing or ordering him to appear before men who were not his religious leaders and who had no standing in the community as religious leaders. He stated that because of his refusal to appear before the religious tribunal as instructed by the judge, he had been denied access to his five children.
The judge provided a copy of his reasons which made it clear that the complainant's access to his children was denied not because he refused to appear before the religious tribunal but rather on the basis of the conduct of the complainant towards his wife and children. He was advised that if he was dissatisfied with the access order, his only recourse was to appeal.
The complainant represented herself in family law proceedings. She alleged that the judge told her she was "off the planet" and should "get into the game" and that "in a game of chess, she was now checkmate". She complained that the judge relied on interim orders that he could not have read and refused to hear her submissions regarding the failure to satisfy outstanding orders.
The judge provided copies of orders indicating the complainant was in breach of several court orders. He said his comments had been directed to explaining to the complainant that, with her application struck and her failure to purge the contempt, her lawsuit had little chance of success. He apologized for using metaphoric language, but said his language was directed at the lawsuit, not the complainant personally. The judge's response was provided to the complainant who was advised there was no evidence of misconduct.
The complainant represented herself at a pre-trial conference. She alleged that the judge yelled at her and she felt abused and traumatized by his conduct. She also alleged that the judge counselled her to accept a settlement proposed by opposing counsel which was much less than the amount she received at trial the following week.
The complainant was advised that the tape of the pre-trial conference did not support her version of events. At no time did the judge yell at her and his conduct throughout the conference was appropriate. He did not counsel her to accept a settlement offer from the other side. No offer to settle was on the table, a fact that was remarked upon by the complainant near the outset of the conference. The complainant was informed that through his comments during the pre-trial conference, the judge was trying to assist the parties by pointing out to her and the opposing lawyer the hurdles to be met in proving their respective cases. In doing so the judge was furthering one of the purposes of a pre-trial conference.
The complainant represented himself on an application in criminal proceedings. He stated that he appeared before the judge in handcuffs, and the judge "knowingly and deliberately" left him in handcuffs throughout the hearing which meant that he could not take notes during the Crown's submissions. He also complained that the judge had allowed the Crown to make its submissions first, which was a violation of his right to procedural fairness.
The complainant was advised that it was not improper for the judge to hear from the Crown on the procedural issue before hearing the complainant's application on its merits. He was also advised that the judge was unaware that the complainant was in handcuffs when the Crown made its initial submissions. When the judge became aware that the complainant wished to have the handcuffs removed, he ordered their removal after making appropriate inquiries of the persons who had custody of the complainant.
In an action for annulment of a contract, the complainant alleged that he had given in to "arm-twisting" and had finally accepted a settlement on the advice of his lawyer. He alleged that he had done so under duress and had therefore been deprived of due process. The complainant submitted that his lawyer had encouraged him to accept the offer in view of the fact that the judge had expressed his dissatisfaction with having to preside over a case of "little import". He alleged that it had become clear to him that a refusal would only serve to irritate the judge and significantly diminish his chances of obtaining damages. The complainant alleged that the judge had abused his powers.
The complainant was advised that the Council had no authority to review an agreement between parties and that a motion for repudiation of the agreement for cause could have been made to the superior court. A review of the file, including the taped court hearing, and the judge's comments showed that the parties appeared to have been satisfied with the settlement, which they had reached upon the advice of their lawyers. The meeting with the two lawyers in the judge's chambers appeared to have been very short and the judge indicated that he would have asked the lawyers if they had previously discussed settlement. To the best of the judge's recollection, the lawyers responded affirmatively and he therefore encouraged them to pursue negotiations. The judge vehemently disagreed however with the complainant's assertion that the judge had "more or less ordered the lawyers to settle the case". The judge affirmed that he never participated in negotiations between parties before him, being very conscious of the danger that pressing parties to settle would present for a judge seized with a matter. The judge stated that he took every necessary precaution in order to assist parties by clearly explaining the process, while at the same time assuring them that a failure to reach agreement would not influence the decision he may be called upon to render.
The complainant alleged that adverse comments made about him during sentencing by the judge were "inflammatory" in nature and not based on any evidence. The complainant stated that it was "unfortunate" that a reporter had been present and had subsequently reported the comments in a local newspaper article. The article quoted the judge as saying: "Either this person has no conscience or he has a personality disorder which requires treatment". The complainant said the fact that he was "unable to secure any kind of employment" and was not able to "face people" in his area was "directly" attributable to the judge's comments.
The complainant was informed that judicial duty often requires a judge to make critical evaluations of the credibility or the past conduct of an accused in the case before the court. Findings of this sort, although perceived as prejudicial by the accused, were an essential part of the trial process in coming to a determination of innocence or guilt as well as in sentencing. The judge must be free to comment adversely on the conduct of the parties when sentencing and when considering factors such as the likelihood of reoffending and the prospects of rehabilitation. The complainant was reminded that the courts are open to the public and that access by the media, although possibly perceived as unfortunate from the accused's point of view, is a necessary conduit for public scrutiny in the interests of maintaining the integrity of the judicial process.
This complainant objected to a judge's dismissal of charges of attempted murder, as described in a newspaper article. She alleged that the streets were unsafe and the laws too "easy". She provided another article which identified "suspects" by their ethnic origin. The complainant also referred to the same group as "Asians" and implied by her comments that they were "criminals". She requested that the Council "bring back Capital Punishment" and take away the judge's "license".
The complainant was informed that the Council could not assist her in examining the "judicial system" in general or in bringing back capital punishment. It was up to the Attorney General of the Province to decide whether to appeal the dismissal or the sentence in the case described in the newspaper article. As the second article referred to "suspects", the complainant was invited to consider the presumption of innocence, one of the most fundamental legal rules, as well as the proposition that guilt by association with a particular ethnic group undermined and thwarted the search for the truth and that, fortunately, the laws of Canada did not condone such an unwarranted presumption.
The complainant, in litigation regarding jointly held property and business interests against the estate of his deceased brother, alleged that the judge had been influenced because he was a "very good friend" of another brother, who had been employed as a court services officer. He also alleged that the judge was responsible for the alleged delay in the processing of his litigation.
The judge categorically denied the allegation of conflict of interest, indicating that the brother in question had been one of a number of court services officers employed by the provincial authorities and had attended all the judges sitting in that particular court house in putting on and removing robes and in maintaining decorum in the courtrooms. All court services officers were assigned by the courts services manager to assist judges on a rotational basis. The officer in question had retired more than a year prior to the litigation involving the complainant. The judge was not aware that he was related to the complainant. The complainant's brother never worked for the judge as alleged, nor was he ever assigned to assist him exclusively. The judge said he did not ask the court services manager to assign the officer to assist him. The complainant was informed that the judge never had any communication with his brother outside the court house and that it had been his consistent practice on the bench to maintain an arm's length relationship with all court house personnel. Finally, the judge advised that the complainant had been represented throughout the proceedings by his lawyer and that the issue of potential or actual bias had never been raised. The judge also noted that the complainant had not filed an appeal from his judgment. The complainant was informed that a review of the litigation processing dates did not, in any way, support his allegation of delay. A review of the court record showed that the judge had delivered his written reasons for judgment on the motion and cross-motion before him only 19 days after the hearing of the motions. The complainant was reminded that the pace of litigation was largely in the hands of the parties and they had not yet passed the record or requested that the action be set down for trial.
The complainant, a former client of the judge, alleged the judge was in a conflict of interest when he signed an order against her.
The judge stated that when he became a judge, many of his files were transferred to the law firm that obtained the order against the complainant. He stated that he had no idea that the ex parte order involved a former client. The law firm had sent a student to duty court, where he was presiding, and had not brought the fact that the file involved a former client to his attention, for which they apologized to the judge when he contacted them about the complaint. Had he known the order involved his former client, he would not have dealt with it. The complainant was advised that a reasonable person informed of all the facts would not conclude that the judge was in a conflict of interest. Most judges, when they recognize that a matter involves a former client, prefer not to deal with it. Conflict exists where a judge has formerly acted for a client in the same matter, which was not the case in this instance. Accordingly, there was no basis for any further action by the Council.
An unsuccessful plaintiff in a suit for damages for negligence alleged that the judge had erred in fact and in law by misapprehending or ignoring the evidence and by reconsidering an issue which had already been decided upon. He further objected to the judge requesting clarification from counsel on the facts and the issues at trial and suggested it was improper of the judge to request written submissions. He objected to the award of costs. The complainant also complained that a delay of "almost nine months" in rendering judgment following the end of the trial, was undue.
The complainant was advised that his only recourse regarding his allegations of error in fact and in law and in the awarding of costs was to appeal. He was also advised that there was nothing untoward about the judge requesting clarification of the issues or of the facts from counsel. Written submissions are routinely requested by judges and can prove especially helpful in difficult matters. The delay of "almost nine months" from the end of trial to the issuing of the judgment was beyond the six months established by the Council as a time frame in which reserved judgments should, generally, be issued. In this case, however, the senior judge of the region had been on top of the matter and it could not be said that the nine months was inordinate, given that the judge had clearly been dealing with a difficult piece of litigation.
A non-custodial father in family law proceedings regarding access and child support complained about the duration of a trial which had been ongoing for six months at the time of the complaint. He said the emotional and financial strain of the situation had impaired his judgment, affected his ability to properly conduct his case, damaged his credibility before the court and ultimately, he believed, unfairly prejudiced his case. He also complained that the judge had improperly reviewed evidence prior to the start of the trial, had involved "biased parties in access arrangements" and had refused to allow him to cross-examine a witness. He said the proceedings had caused a "disruption" of his relationship with his daughter, that his privacy rights under s. 8 of the Charter had been violated and that an order for a further psychiatric assessment was unlawful.
The complainant was informed of his right to appeal alleged errors of fact or of law by the judge. He was advised that all the points he had raised, except the duration of the trial, were matters which could be reviewed only by way of appeal. As for the duration of the trial, he was informed that the parties had an obligation to accommodate the process in order to assist in expediting their case. The complainant was advised that any refusal to participate in what appeared to him to be an "unfair and flawed process" could serve to stall matters or prejudice his and child's rights. It was explained to the complainant that the overriding consideration of the judge must, by law, be the best interests of the child and that deciding what was in the best interests of the child required careful consideration of all matters which may affect the quality of care of the child. The complainant was advised that proper legal representation could help him understand the process and assist in ensuring the protection of his child's rights and of his own rights.
More than 20 letters of complaint were received after a judge wrote a letter to a newspaper criticizing a higher court judge for her judgment, which he considered to be unfairly and personally critical of him. There was extensive media coverage of the letter and of a subsequent interview the judge gave to a reporter for the newspaper that had initially published his letter.
The complaints received over a period of approximately two months, related to the media coverage and to comments made by the judge in two of his judgments. The complaints were referred to a three-member Panel.
The Panel noted that the judge had apologized for his letter and recognized unequivocally that its tone was entirely inappropriate. The Panel concluded that sending the letter was an "impetuous and isolated incident which does not warrant further consideration by the Council." The Panel found comments in the interview were entirely inappropriate. The Panel concluded that some of the comments in each of the two judgments "cross the boundary of even the wide latitude given to judges in expressing their reasons." They were "flippant, unnecessary and unfortunate". However, taking into account his long and distinguished career as a lawyer and judge, the Panel concluded that his inappropriate conduct in this instance would not preclude him from treating all litigants fairly and impartially in future. While determining there was no basis for an investigation pursuant to ss.63(2) of the Judges Act, the Panel expressed strong disapproval of the judge's conduct, which it found to be inappropriate but not malicious or reflecting oblique motive.
An unrepresented party complained of the judge's attitude during the course of a family law hearing. She alleged that the judge had deprived her of the opportunity to present her arguments and made sexist comments by suggesting to her ex-spouse that he give her daughter a gift "because lip-stick is expensive". She also alleged that the judge had demonstrated prejudice against a public institution and against unrepresented parties.
The judge was asked for comments and the complaint was referred to a Panel. The judge was of the opinion that the complainant had cited him out of context. He admitted having made a joke essentially to break the tension and believed he had succeeded. The judge explained that he had made his comments about the public institution because its files were processed so slowly and because its allocation of benefits was fully reimbursed by the amount of its required contributions. He stated he had spoken truthfully and had presided correctly over the hearing. Firstly, the Panel noted that it was not appropriate for a judge to directly enter into negotiations, albeit through an informal exchange, with the complainant's ex-spouse regarding the amount of support payable. The ex-spouse had been legally represented and should not have been drawn into arguing his case on his own behalf. Secondly, the Panel noted that it was particularly regrettable that in the course of this informal exchange the judge had left the impression that he had already decided the case. Furthermore, the Panel noted that following the informal exchange, the judge had cut off the complainant's arguments, thus reinforcing the impression he had pre-judged the matter. The Panel also concluded that the judge's remarks concerning the gift for the daughter were offensive and that his unsolicited humour and criticism of the institution, apparently meant to elicit laughter, were inappropriate. The complainant was advised of the Panel's conclusions and informed that a letter expressing disapproval of the conduct had been sent to the judge.
The head of a court made a complaint concerning a judge from another court. The complainant alleged that the judge, who had presided on appeal, had not only criticized the judgments rendered by the lower court judges, but brought into question the integrity of the judges who had delivered the decisions he was reviewing. The complainant alleged that the judge's comments, made publicly and reported in the media, unjustifiably brought discredit upon the lower court judges with whom he disagreed. It was submitted that the judge had made the presumption that certain lower court judges did not want to apply the law. The complainant alleged that the judge's remarks had undermined public confidence in the judiciary generally. The complaint was referred to a three-member Panel.
The Panel noted the judge's response that although he may have acted from a lack of experience, he had done so in good faith. The Panel reviewed the transcripts of the three hearings in question as well as a letter from one of the lower court judges who had brought to the impugned judge's attention the fact that he considered his conduct to be objectionable. The Panel found some of the judge's comments to be unacceptable and expressed disapproval of them. It concluded that his remarks had presumed bad faith on the part of a certain group of judges, thus creating an apprehension of bias. The Panel held that the judge should have taken account only of the judgment on appeal before him.