Possibilities for Further Reform of the Federal Judicial Discipline Process

List of Questions for Discussion

This section reproduces the list of questions raised for discussion under each section in Part 3.

3.1 Who May Complain and Screening Out of Complaints

  • Should the fact that anyone may complain to the CJC be clearly set out in the Judges Act?
  • Should the grounds for screening out of complaints be set out in the Judges Act?
  • Should paragraph (c) of these grounds be retained in its existing form?

3.2 Anonymous Complaints

  • Should anonymous complaints continue to be accepted?
  • Should the approach to anonymous complaints be set out in the Judges Act?

3.3 Role of Complainants

  • Does the current process strike the right balance in terms of the role of complainants?
  • Could current practices and procedures related to keeping complainants informed be improved? How?
  • Should current practices and procedures related to keeping complainants informed be incorporated into the Judges Act?

3.4 Complaints from Attorneys General

  • Should s. 63(1) of the Judges Act be amended so that the right of AGs to oblige the CJC to hold an inquiry into a complaint made by them is triggered only if the CJC dismisses the complaint?
  • Should each provincial and territorial AG be limited to being able to require an inquiry into the conduct of superior court judges of their own jurisdiction and the judges of the Supreme Court of Canada?

3.5 Involvement by Lay Persons, Lawyers and Puisne Judges in the Discipline Process

Lay persons

  • Should every review panel and inquiry committee include a lay person, defined as someone who is neither a lawyer nor a judge?
  • If lay persons serve on review panels and/or inquiry committees, who should designate them? The CJC? The Minister of Justice?
  • Should the role of lay persons be set out in the Judges Act?

Lawyers

  • Should one of the members of every review panel be required to be a lawyer? Or is having a lay (non-lawyer) member sufficient?
  • Should lawyers continue to sit on inquiry committees? How many should sit on each committee?
  • Who should designate the lawyer members of review panels and/or inquiry committees?
  • Should any requirement that lawyers sit on review panels be set out in the Judges Act? Should the current Judges Act provision regarding the participation of lawyers on inquiry committees be changed?

Puisne judges

  • Should one of the judicial members of every inquiry committee be required to be a puisne judge?
  • Should puisne judges be represented on the CJC’s Judicial Conduct Committee?
  • If puisne judges are required to be represented on review panels, inquiry committees and/or the Conduct Committee:
    • Who should select them? The CJC? The Canadian Superior Court Judges’ Association?
    • Should the role of puisne judges in this regard be set out in the Judges Act?

3.6 Role of Review Panels

  • Should review panels be expressly required to issue reasons for recommending against an inquiry, as well as for recommending in favour of one?
  • Should the composition, role and responsibilities of review panels be set out in the Judges Act?

3.7 Inquiry Committees

Inquiry scope

  • Should an inquiry committee be precluded from considering a complaint that has not been investigated by the CJC?
  • Would a review panel’s reasons and statement of issues, together with the original complaint, be sufficient to constrain the scope of an inquiry while providing the necessary flexibility? Or should there exist a mechanism for fixing more precisely the scope of an inquiry?
  • If the latter:
    • What actor should determine the scope of an inquiry committee’s inquiry? The review panel? The Chair of the Conduct Committee?
    • How would an inquiry’s scope be broadened should this become necessary? For example, would the inquiry committee itself seek that the scope of its inquiry be broadened by making a request of the body responsible for fixing the scope of its inquiry? Would there have to be a hearing at which judge’s counsel could make submissions?

Publication bans and in camera hearings

  • Should the Judges Act include a requirement for inquiry committees to provide reasons before going in camera or issuing a publication ban?
  • Should the Judges Act expressly state what factors an inquiry committee should weigh when considering requests for publication bans or going in camera?
  • Should a provision requiring notice to interested parties an the media, like the one currently found in the Handbook, be incorporated into the Judges Act?

Rules of procedure for inquiries

  • Should the Judges Act provide for, or require the CJC to establish, procedures and practice guidelines for inquiry committee hearings?
  • Should the CJC be required to consult on the contents of, and changes to, these guidelines? If so, who should be consulted?
  • Should the CJC be required to provide notice on any changes to these guidelines? If so, who should be notified?

3.8 Presenting Counsel and Committee Counsel

  • How should the broader public interest best be represented during inquiry committee proceedings? Through presenting counsel? Is that possible if presenting counsel is subject to the direction of the inquiry committee?
  • Should every inquiry involve presenting counsel? How should the role of presenting counsel be defined?
  • Should every inquiry committee be authorized to retain committee counsel? How should that role be defined?
  • If the roles of presenting counsel and committee counsel are expressly provided for and defined, should this be done in the Judges Act, or in the CJC’s By-laws?

3.9 Council of the Whole

  • Should Council of the Whole remain as a stage of the discipline process?
  • If so:
    • How should its purpose be defined or clarified?
    • Would a smaller body be able to discharge the same or similar functions more easily or efficiently?
    • Are the Council of the Whole’s powers adequate? Should it have the power to have a new inquiry committee inquire into a particular matter where appropriate in light of the requirements of procedural fairness?
    • Should Council of the Whole’s powers be consolidated in a single provision and incorporated into the Judges Act?
    • What procedures should be adopted by Council of the Whole? Should the judge have the ability to make an oral statement or written submissions only? Should this be left for the CJC By-laws to specify or be incorporated into the Judges Act?

3.10 Range of Sanctions for Misconduct and Grounds for Removal from Office

Range of sanctions for misconduct

  • Should the range of sanctions for misconduct short of removal be expanded? If so:
    • What sanctions should be available? Expressions of concern? Courses of continuing education or counselling? Suspension without pay? Others?
    • Should the range of sanctions be set out in the Judges Act, or should the CJC be empowered to impose sanctions short of removal with the specific sanctions left for the CJC to specify by way of By-laws?

Grounds for removal from office

  • Should the Marshall test be incorporated into the Judges Act, with the CJC expressly charged with applying it.?

3.11 Role of the Minister of Justice

  • Should the Minister’s role in receiving the CJC’s report and recommendation be clarified in the Judges Act? If so, in what terms?

3.12 Judicial Review

  • Should judicial reviews be expedited by having them proceed directly to the FCA? Directly to the Supreme Court with leave?
    • Should judicial reviews of the Council of the Whole proceed directly to the Supreme Court with leave, with other judicial reviews proceeding directly to the FCA?
  • Should judicial reviews by judges facing inquiries be expressly precluded until Council of the Whole has reported? What would this entail for the Council of the Whole stage?
  • Should timeframes for hearing and determination of judicial reviews be established? At the FCA? At the Supreme Court?
  • If the two-counsel model is reinstated, should presenting counsel be precluded from applying for judicial review?

3.13 Legal Fees

  • Should a judge be required to repay the costs of bringing a judicial review application if the reviewing court finds that the application is frivolous or vexatious?
  • Should a reviewing court also be empowered to impose costs payable by the judge even if the application was not found to be frivolous or vexatious?
    • If so, should the reviewing court be expressly required to consider factors such as the need to deter unnecessary litigation, and the importance of not deterring judges facing inquiries from raising legitimate matters on judicial review?
  • Should a judge be initially required to pay his or her own legal fees on judicial review, with the reviewing court empowered to award the judge all or part of those costs should it deem it appropriate in the circumstances?
    • If so, should full cost recovery by the judge be the rule unless the application was found by the reviewing court to be frivolous or vexatious?
  • If the range of non-consensual sanctions for misconduct is expanded, should the policy of paying a judge’s legal fees exclude judicial review applications brought after it has been determined that a complaint is not serious enough to warrant removal from office?

3.14 Timeframes

  • Should timeframes be established in respect of certain stages of the process, such as review by the Chair of the Conduct Committee, review by a review panel, completion of the inquiry committee’s report once hearings have concluded, and/or review by Council of the Whole?
  • How should they be established? In the Judges Act? In a regulation? In the CJC’s By-laws?

3.15 A Public Process: Striking a Balance between Confidentiality, Transparency and Accountability

  • What information should be provided about complaints in the pre-inquiry stages of the discipline process?
    • What factors should be considered in deciding what information to provide and when?
    • Should this be set out in the Judges Act? In a regulation/By-law? In a policy instrument?
  • What if any additional information should the CJC provide about the judicial discipline process?
  • Should the information the CJC is required to provide about the process be set out in the Judges Act? In a regulation? In the CJC’s By-laws?
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