Sample of Complaints received during 2001-2002
The complainant, an unrepresented father in family law proceedings, alleged that the judge unfairly dismissed his motion to vary a previous order for custody and access, and exhibited anger towards him. He "felt most likely" that he had been discriminated against because of his race, colour, gender and the fact that he was representing himself.
The complainant was informed that a careful review of the matter had not substantiated his suggestion that the conduct of the judge or the dismissal of his motion were evidence of discrimination. Rather, the judge dismissed his motion because he found that it constituted an attempt to re-litigate the matter which had previously been determined by judicial interim order. The judge advised that neither the fact nor the result of the intervening motion for leave to appeal the same order - which the complainant was again attempting to re-litigate before the judge -- had been disclosed in his motion record. The complainant was further advised that the judge apologized if the complainant perceived that he had been annoyed.
The complainant alleged that the judge's comments against men in the course of a television show served to undermine the public's perception of judicial impartiality. He alleged that the judge "volunteered that fathers are not involved with their children and that they have not been 'good fathers' prior to the divorce". The complainant indicated that he "did not know" how the judge would decide on a particular case dealing with custody issues, but asserted that he would not want the judge to sit on a case involving his children or himself.
The complainant was advised that a review of the videotaped interview revealed that the judge did not use the words as alleged. He was advised that the actual comments had not implicated all fathers and an informed person, viewing the matter realistically and practically and having thought the matter through, would not apprehend a lack of impartiality regarding the judge's future ability to decide custody issues brought on by divorce or separation. The complainant was advised that judges may properly speak out in order to enhance the public understanding of the role of judges. The complainant was reminded that the judge began her comments on a judge's role in custody cases by saying that "the children need both parents". The complainant was informed that it was the prerogative of the party asserting bias in a particular case to request recusal of the judge.
An unrepresented complainant in a family law matter alleged that the judge was biased against men and that she had failed to control the opposing counsel's "character attacks" against him. The complainant alleged that he felt "humiliated, harassed and gagged" in the courtroom. He asked for an investigation.
The complainant was advised that a review of the tape recording of the hearing showed that the judge had given the complainant every opportunity to make his case, had explained the process and had listened patiently to his testimony and arguments. Tapes revealed that the judge had been polite and respectful of all the parties throughout the proceedings and had patiently explained the procedures. He was also advised that the judge appeared to have controlled the proceedings effectively, despite the apparent antagonism between the complainant and the defendant's lawyer.
A complainant in family law proceedings alleged the judge was biased against him on the basis of adverse rulings, demonstrated a "feminist bias" and was biased against men. He disagreed with a number of rulings concerning support and arrears and the judge's refusal to order discoveries.
The complainant was advised that he had provided no basis for his allegation of bias on the part of the judge, other than the judge's adverse decisions. Transcripts of the proceedings revealed that the judge treated both parties in an even-handed manner.
A complainant in divorce proceedings alleged that the judge had made errors of fact and law in his judgment. The complainant said he had been penalized by his insurance company because of the judge's finding that he had damaged his wife's car. He requested a review of the matter. He alleged that the judge was biased and had committed an act of "intentional discrimination" by excluding money received by his wife in calculating the division of matrimonial assets.
The complainant was informed of the mandate of the Council and of his right to appeal. He was advised that his allegations of bias and discrimination implicated the judge's conclusions in his judgment and as such could only be examined by way of appeal. There was no basis for intervention by the Council pursuant to its mandate under the Judges Act.
A complainant who had been present but not involved in family law proceedings alleged that the judge's reasons for judgment demonstrated a bias against men on the basis of his findings regarding support and net family property . He said the judge held a "secret closed door meeting" with counsel for the parties outside the courtroom. He objected that counsel for the husband would not tell him what went on at the meeting. He also alleged that the judge deliberately or knowingly created a situation in which he could meet alone with counsel for the wife by getting on the elevator with the wife and her lawyer. He speculated that the judge must have had a secret meeting with counsel for the wife.
The complainant was advised that it is not improper in a civil case for the trial judge to meet with counsel for the parties in chambers either before or during a trial. A judge may use the opportunity for any number of reasons, including determining whether the parties have agreed upon any facts and whether any issues have been resolved before or during the course of trial. If the judge met with counsel it was not improper and there was no reason why he as a non-party should be told what the judge and counsel discussed. If it was true that the judge ended up on the same elevator as the wife and her lawyer, the complainant's conclusion that they held a "secret meeting" was pure speculation.
The complainant, a party in a family law proceeding, alleged that the judge had a conflict of interest because she had had a professional relationship with the intended expert witness, had been a partner to a lawyer with whom the complainant had dealt "briefly" and because of the nature of the work of the judge's spouse.
The complainant was advised that the decision of the judge to adjourn could have been reviewed only by way of appeal and that the alleged conflict of interest had been properly dealt with. As soon as the judge was informed of the name of the expert who had written the report that the complainant's lawyer was seeking to file, the judge had given the opportunity to the parties to consider whether they wished her to recuse herself in view of the fact that she had had a previous professional relationship with the proposed expert. The complainant was advised that any perceived or actual potential conflict of interest had thereby been properly dealt with and that her allegation was unfounded.
The daughter of the defendant named in a quasi-contract case alleged the judge was in a conflict of interest because he had practised at the same law firm as counsel for the plaintiff. The complainant alleged that the judge should have ensured that someone was present in court to represent her mother and should have ensured that appropriate witnesses were called.
The complainant was advised that the judge had been appointed to the bench 15 years before the trial, and was not in a conflict of interest. She was advised that it was the responsibility of her mother's lawyer, not the judge, to ensure that someone representing her mother was present during the trial. It was also the lawyer's responsibility to ensure that appropriate witnesses were called.
A complainant in proceedings dealing with support and division of family property alleged that the judge was not impartial because she was a friend of the cousin of his ex-wife. He produced a photograph taken between the date of the trial and the date when judgment was rendered showing the judge together at a party with his ex-wife's cousin. He said that he had been told that certain people at the party had discussed his case and that they had referred to the judge as the judge who had presided over his trial.
The judge denied she knew of the relationship between her friend and the complainant's ex-wife or that she had discussed the case with anyone at the party or at all outside the courtroom before rendering a decision. The complainant was advised that he had provided no evidence to show the judge had been involved at the party in any discussions about the case or that the judge knew of the relationship between the cousin and ex-wife before she rendered a decision. The complainant's counsel had not raised bias as a ground of appeal. The reasons for judgment were detailed and judicious and fully canvassed the evidence and the applicable law. The judge's decision had been upheld on appeal.
A complainant in a family law proceeding alleged that the judge was in a conflict of interest because the judge's spouse "was a close friend of the plaintiff and had talked to her frequently during the course of the hearing". Furthermore, the plaintiff's brother, a witness at trial, was a friend of the judge. The complainant demanded that the judgment be "repealed."
Comments were requested from the judge and the complainant was informed of the Council's mandate. The complainant was advised that the evidence showed that the judge's wife did not know the plaintiff at the time of the hearing, having met her some seven months after the judgment was rendered. Nor was there substantiation for the claim that the judge and the plaintiff's brother were friends. There was consequently no basis for intervention by the Council pursuant to its mandate under the Judges Act.
A medical doctor in application for an injunction in judicial review of disciplinary proceedings taken against him disagreed with aspects of the judge's reasons for decision. He also stated that the judge must know the main complainant in the disciplinary proceedings who had filed a complaint of harassment against him, because he had "determined" that they "were both parents of children that attended the same school" which, in his view, raised a reasonable apprehension of bias.
The judge denied she knew or was acquainted with the complainant in disciplinary proceedings or had even heard of the individual. The complainant had provided no evidence to support his allegation. The judge's reasons for judgment dismissing the application for an injunction were detailed and judicious. The complainant was advised that there was no evidence of bias and therefore no basis for further action by the Council. The complainant wrote again to complain about the Council's disposition of his complaint. He was advised that he has provided no basis for re-opening the file.
A complainant alleged that the judge had treated him differently on the basis of race because he had declared him to be the father of a child "without a blood test and without notice" and had ordered him to pay child support, which he could not afford. He alleged that he had been forced onto social assistance as a result and demanded an investigation.
The Council's response to the complainant noted that he had appealed the order, although he had been ultimately unsuccessful. The judge pointed out that the court hearing, which had been brought on by application of the province, had been adjourned on two occasions in order to give the complainant an opportunity to have a blood test done and to consult counsel, which he did not do. The judge advised that it was only on the third hearing before the court that a Declaration of Paternity was made, on the evidence, as well as an order for child support. The complainant was reminded that despite further enforcement proceedings, he still had not paid any child support. He was advised that there was no evidence to show that he had been treated differently on account of his race.
The complainant was the mother of two children for whom the Children's Aid Society had brought an application for Crown wardship, without access. The complainant alleged that the judge granted Crown wardship because she is Metis. She also alleged the judge "had no right to say what he said being Metis I have problems".
Copies of the judge's reasons for decision and a copy of the transcript of the trial did not support the complainant's allegations. The judge had made an order to recognize the complainant's cultural concerns.
A party in a divorce action alleged that he had been prejudiced by the judge's delay in rendering his "final"judgement. He had already appealed the judge's first judgment and was still waiting for the final judgment. He complained that the judge had rejected his demand that the judge recuse himself.
Comments were requested from the judge. The complainant was informed of the Council's mandate and of his right to appeal. He was advised that the six months normally provided by law and recommended by the Council as a guideline for a judgment to be rendered had not passed, taking into account the fact that in its first judgment the court had reserved decision on corollary relief, permitting the parties to verify certain information relating, among other things, to the defendant's locked-in pension.
The applicant in a divorce case complained that the judge had taken too long to deliver judgment and grant her divorce. The length of time was causing her problems because she had intended to remarry. She felt "very frustrated with the justice system that is supposed to be in place to help me and not hinder me". She felt she had been "attacked" because she "self-represented" and because she had "hired a paralegal to do her paperwork".
The complainant was advised that the delivery of a judgment granting a divorce within four months of appearance in court did not constitute undue delay, was well within the established guideline of six months and did not raise the issue of conduct. Although her divorce was uncontested, it was complicated by the fact that she had chosen to proceed with the assistance of a paralegal, whom the judge found, on the evidence, to have represented the complainant contrary to the applicable family law court rules. She was also reminded that during the court hearing she had replied "no" to the judge's question as to whether there was any urgency about granting of her divorce.
A party to various ongoing court actions, appeals, and judicial reviews complained about comments made or cited by four different judges - one of whom was a Council member - in their decisions regarding him as a lay litigant. He alleged that their comments reflected biases towards lay litigants and constituted "personal attacks" against him and all lay litigants. He alleged the comments were "demeaning, humiliating and offensive" to him and were vindictively used to deny him remedies in certain instances. The complainant also complained that the press had repeated these comments and that two of the judges had made comments to the press about lay litigants.
The complainant was advised that the judges' comments were not found to be "gratuitous" nor to constitute "personal attacks" against him or against lay litigants in general. In each case, the comments were linked to the judge's findings on the procedures he initiated and his performance in presenting the merits of his case or the issue of costs. The complainant was advised that court proceedings are public matters and that the outcome of cases is often of interest to the media which report on issues they believe to be of interest to the public. Any litigant should be prepared for the possibility of publicity regarding a court case.
More than five years after judgment was rendered in a boundary dispute, the defendant alleged that the judge had erred in fact and in law and had damaged his reputation in his judgment. He said the judge wanted to "settle a political score" because he and the judge had previously been election candidates at the same time. He demanded that the Council "correct or annul" the judgment.
The complainant was informed of the Council's mandate and that his recourse would have been to exercise his right of appeal in 1996. He was advised that his allegation that the judge had rendered an unfavourable decision to "settle a political score" could not be taken seriously. The fact that he and the judge had both been candidates at the same time, more than 20 years previously, did not suffice to convert his dissatisfaction with the judgment into a question of judicial conduct.
A First Nations leader complained that the use of the words "conquered peoples" in a speech by a chief justice created "an apprehension of bias" in relation to treaty and aboriginal rights issues, as the perception that aboriginal peoples in Canada had been "conquered" was inaccurate. He requested that the Council take immediate action to remove the judge from the bench.
The chief justice noted that it was never the intention to suggest that Canada's indigenous peoples had been conquered and that, read in full, the remarks made that clear. The phrase "conquered peoples" was used in describing British colonial policy generally, and was not intended to suggest that Canada's indigenous peoples had in fact been conquered. The chief justice regretted any misunderstanding that may have arisen. The complainant was advised that there was absolutely no basis for the allegation that the remarks had created an "apprehension of bias".
A complainant, a provincial attorney general, stated that, "mindful of his duties and responsibilities", he was writing in his official capacity to bring a matter to the attention of the Council. He said a judge's vehicle had been stopped by the police due to snow on the rear windshield, contrary to the Highway Traffic Act. The judge had been asked to take a breathalyzer test, but was not charged, the results of the test being under the required amount to lay charges.
In the Council's reply to the complainant, it was noted that the judge confirmed he had not been charged with any offence, given that the results of the breathalyzer had not supported a charge. The judge confirmed that he had been subject to an administrative procedure under the Highway Traffic Act rendering anyone with a level of alcohol in excess of a specified amount liable to prohibition from driving for twenty-four hours. The judge very much regretted the incident and took full responsibility for it, indicating that he appreciated that the police acted fairly and professionally.
A bail hearing of a native accused of second degree murder was the subject of a complaint from members of the victim's family. They objected to the judge's use of the word "thugs" to describe a group of persons, including the deceased, who arrived at the accused's home on the night in question. They believed the judge had made a value judgment that was not based on the evidence. They also objected that the judge had blamed several girls, who were present at the accused's home, for the murder, with "not one derogatory word about the accused in this case".
The judge stated that he used the word "thugs" deliberately, against a background of violence in the community which is often directed against natives and other visible minorities. He used the word to distinguish between those who had been peacefully at the party and those who arrived later. In view of evidence from the accused's mother that she was moving her family out of town in fear of actions by what she took to be the friends of the accused, he concluded that the word "thugs" aptly described the arriving group. The complainants were advised that although the judge's use of the word might be ill-advised, in the context of the evidence before him it did not constitute misconduct requiring further action by the Council.
In 2001-02, one file was closed by a Panel. The complainants and respondents in a property case complained that the judge had made "religious specific remarks" which offended them. They alleged that the judge had used the expression "to incline one's hat" and that he had said to their lawyer: "Sir, I understand that, long ago, your clients spent 40 years in the desert, they don't act quickly." The complainants advised that the judgment had been reversed on appeal and that the Court of Appeal had "taken pains to point out the judge's comments had no relevance to the issues before him and there was no reason for them". The complainants further suggested that the judge had "submitted a written judgment at variance with his oral decision when he learned it was under review by the Appeal Court".
A three-member Panel concluded that the allegation with regard to the suggested "doctoring" of the written reasons for judgment had not been sustained and reminded the complainant that allegations of error in reasons for judgment could be reviewed only by way of appeal. The Panel had accepted the judge's explanation with regard to his expression "to incline one's hat" that it conveyed, and was intended to convey, recognition of unspoken agreement. As for the comment "I understand that, long ago, your clients spent 40 years in the desert, they don't act quickly", the Panel was of the opinion that this comment was inappropriate and should not have been made. The Panel sent a letter to the judge expressing its disapproval regarding this comment.