Sample of Complaints received during 2010-2011
On occasion, individuals will write to complain that a judge did not have the knowledge needed to deal with the case before the Court or that the judge did not prepare himself or herself for the case. This is what one complainant said about a judge. The complainant hired a lawyer to prepare her complaint. The allegation was that the judge did not read important documents prior to appearing in Court. Also, the complainant said that the judge showed a certain level of ignorance and evasiveness about the application and that he was "in a state of confusion." The complainant believed that this showed incompetence or a lack of diligence on the part of the judge. The complainant was also upset because the judge did not allow her to record the proceeding.
The judge was asked to give comments and to provide the transcript of the case. All the available material was reviewed. The allegation that the judge was not prepared was based only on speculation. In fact, the material showed that the judge was sufficiently prepared for this type of case.
Parties in court cases are often deeply involved in the issues. They sometimes do a lot of research about every point and are well prepared to argue their position. In turn, they sometimes expect the judge to know every aspect of the case. When a judge limits the time for making submissions or rules that certain evidence cannot be admitted, parties can feel that they did not get a chance to fully explain their position. However, judges must be very active in controlling proceedings to ensure that the court's time is well spent. In this case, the judge acted in accordance with that principle.
With regard to the judge not allowing the complainant to record the proceedings, the judge explained that the matter was being recorded already and that the complainants could request the transcript if they so chose. The normal practice, in most courts, is that private recording of the proceedings is not allowed.
While the complainant in this case hired a lawyer to make her complaint, it must be noted that all complaints are reviewed carefully and thoroughly, no matter how they are presented. In fact, the Council even accepts anonymous complaints and reviews all allegations against judges in accordance with the Complaints Procedures.
One of the goals of the complaints process is to make sure judges learn from any mistakes and are able to change any behaviour that is not in keeping with the high expectations we have for all judges. When a complaint is made, a judge will sometimes note that there was a problem with their conduct and they must do better in future.
This was the case when a complainant said that the judge used inappropriate language and humour in case conferences about custody and care of children. The complainant said that the judge treated him and his children with very little respect. Also, during one case conference, the judge kept the complainant on the phone without any valid reason, despite knowing that the complainant was taking the call outdoors in very cold winter weather. More importantly, the complainant was troubled by the judge's attempts at humour when questioning the children.
A full review of the material and transcript was made. The judge said that he now saw that he had acted improperly. He said that while the purpose of the telephone conference call was to ensure a full discussion on very important issues, he should have tried to better accommodate the complainant.
The judge also acknowledged that he should not have used humour. He said that his intent was to try and make things easier for the children, his comments in fact offended some people in the courtroom and made things more difficult for the children.
The judge offered a full apology to the complainant and his children. He decided not to hear future matters in that specific case. The judge also agreed to take advantage of a training course that allows judges to improve their communication skills in the courtroom.
Council noted that this was a serious matter but that the judge's conduct in this one isolated case would not prevent him from performing his duties in the future. Given the judge's commitment to learn from this incident and his full apology to the complainant and his children, the file was closed.
Some complaints are very serious in nature, but are not supported with any evidence or demonstration of fact. These types of complaints can be difficult for Council to review. An example of such a complaint was submitted to Council this year which included serious allegations of bias and conflict of interest on the part of a judge.
In a divorce case, the complainant said that several judges, lawyers, police and other officials, demonstrated bias in favour of her ex-husband. She said her husband was involved in known criminal activity and had influence over all these individuals.
The complainant said that one judge was "politically motivated" and that he manipulated the facts as part of a "criminal conspiracy" that involved her ex-husband's associates.
Although the allegations are very serious, Council found that they were based entirely on suppositions and vague theories of conspiracy. Since there was not a single piece of evidence to support the allegations of a "criminal conspiracy" involving many judges and public officials, that part of the complaint was rejected.
This same complaint included an allegation that one judge, several years prior to appointment, was a lawyer in the same firm that now represented her ex-husband in business dealings. On this point, Council noted that any allegation of a conflict of interest must be raised before the court. In the absence of any bad faith, this is not judicial misconduct. The complaint was therefore rejected.
Many complaints received by the Council prove to be about the decisions made by the judge, and not about any issue of inappropriate conduct as such. When someone believes a judge's decision is wrong in law, the remedy is to bring the issue before the court, usually in an appeal.
In a case involving a property dispute, an affidavit presented by the lawyer was rejected by the judge. The lawyer complained to the Council that the judge humiliated her in court by rejecting an affidavit and saying that the lawyer's Notice of Appeal was "not good." The complainant also suggested that the judge showed bias against her in favour of the opposing male lawyer and that the judge was "intimidating, rude and harsh" toward her.
The judge was asked to comment and to provide the recording of the proceedings. The judge noted that the complainant was not well prepared to present her motion and that her court documents were not well drafted. The judge also said that the complainant became agitated as she struggled to properly present her case. The judge did say that the appeal document was "not good" but also encouraged the lawyer to focus her arguments on relevant facts. Council found that the judge acted within her discretion in ensuring that the matters before the court proceed efficiently. The judge disagreed that she was rude or harsh. The recording of the proceedings supported the judge's position. In fact, the transcript showed that the judge was firm but patient at all times and encouraged the complainant to focus on the relevant issues.
The complaint that the judge showed gender bias in favouring male counsel was found to be completely without merit. The complainant had in the past made similar complaints against other judges. Not one of these complaints was valid. The allegations were dismissed.
From time to time, Council receives complaints about the amount of time it takes a judge to make a decision or give reasons for their decision.
In this case, the judge took nine months to give his judgement. The complaint was that the delay was unreasonable and that it undermined confidence and trust in the judicial process. According to the complaint, the delay could be an indication that the judge had difficulty remembering the facts of the case.
In his response to this complaint, the judge explained that this was a very difficult case with a high volume of documents submitted as evidence. One particular issue of the case required some ongoing analysis.
The judge noted that it is important to release decisions early whenever possible, but that some cases need more time to ensure that the decision is as correct and fair as possible. The judge's Chief Justice also commented this case, saying that this was one of the hardest working judges in the Court and that this particular case with an exception to his usual punctual decisions.
In reviewing the case, Council noted that Ethical Principles for Judges say that judgments should ideally be delivered within six months, but that some matters are more complex and may require more time to resolve.
After looking at all the aspects of the case, this was found to be such an exceptional complex matter. The fact that this long delay was unusual for this judge, and that there was a large volume of evidence, supported the judge's view. A full explanation was provided to the complainant and the file was closed.
Some complaints are complex and not easily resolved. In some cases, the member of the Judicial Conduct Committee who reviews the file will send it to a Panel of three or five judges. This allows for a more complete review.
A complainant wrote to say that a judge used his status as a judge to influence officials to act against the complainant. The complaint involved a personal matter between the judge, the complainant and the complainant's ex-wife. The judge had become engaged to the complainant's ex-wife. On two occasions, the judge accompanied his fiancee when she went to the police to complain about her ex-husband. She said her ex-husband was threatening her and she asked that criminal charges be filed against him. During the police interviews, the judge made some inappropriate jokes.
The complainant also said that the judge tried to influence court proceedings about child custody between the complainant and his ex-wife.
Five judges reviewed the matter. Because of the seriousness of the allegations, a lawyer was asked to interview several people, including the complainant, his ex-wife, the police officers, the judge and several others.
The Panel found that there was no evidence that the judge attempted to influence court proceedings. However, the Panel was concerned that the judge was present when his fiancée went to complain to the police. An outside person could think that the judge was there to seek a certain outcome. Humorous comments can be misinterpreted. The Panel was of the view that any comments made during such a meeting, whether spoken seriously or in humour, can be easily misinterpreted. In that regard, the Panel said that judges should avoid such situations.
However, the Panel noted that the judge wanted to provide emotional support to his fiancée, and that he never intended to influence in any way the police officers.
This complaint took much time to complete. This was because of the need to get all the relevant information from many different individuals. While Council tries to complete all matters within six months, there are usually 5 or 6 cases every year that can take more time. In all instances, every effort is made to complete the review of complaints as soon as possible.