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Conduct of Judges.
Where to Complain . . . Although Complaining is Futile

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Conduct of Judges

The information below has been reproduced with the permission of the Click here Canadian Judicial Council.

Every year Canada's federally appointed judges make hundreds of thousands of decisions on matters that range from procedural questions to the most basic interests of those appearing before them.

Judges can make mistakes. When one side or the other in a legal dispute thinks that the judge has come to the wrong decision, our system of justice allows that person to appeal the decision to a higher court. Appeal courts can reverse or vary decisions of other judges. The fact that an appeal court has overturned a judge's decision does not mean that the judge's conduct was improper.

Whether judges are correct or incorrect in their decisions, a high standard of personal conduct is expected of them. When someone believes that a judge's behaviour is of serious concern, or that a judge is not fit to be on the bench, here too our system of justice provides for a remedy. In this case a complaint may be made to the Canadian Judicial Council.

An important difference
The distinction between decisions and conduct is fundamental. When a judge's decision is questioned an appeal to a higher court is the appropriate remedy -

When a judge's conduct is questioned a review of the conduct by the Canadian Judicial Council is the appropriate remedy.

The complaints process

It is open to you to make a written complaint if you believe that a judge's conduct is improper, on or off the bench, including conduct toward anyone involved in a case before that judge.
There are no required forms. You need not be represented by a lawyer. There are no prescribed deadlines. There is no cost to you.

The Council examines every complaint seriously, conscientiously, and as promptly as possible.

The process is open and accessible to everyone, whatever their knowledge of the legal system, skill, status, position or financial resources. The Council takes care to be fair to everyone involved. Given that judges sometimes have to make unpopular decisions, the Council tries to establish whether complaints about judges are well-founded.

Council by-laws provide for a complaint to be reviewed first by the Chairperson or a Vice-Chairperson of the Judicial Conduct Committee. He or she may forward a copy of the complaint to the judge in question and to the judge's chief justice, requesting their comments. The matter may also be referred to a Panel of Council members for consideration. Further inquiries may be made by an independent lawyer.

If the complaint is considered sufficiently serious, a Panel may recommend that the Council formally investigate it. Ultimately, the Council may recommend to the Minister of Justice that a judge be removed from the bench by Parliament. By law, a judge can be removed by reason of:

(a) age or infirmity,
(b) having been guilty of misconduct,
(c) having failed in the due execution of that office, or
(d) having been placed by his conduct or otherwise, in a position incompatible with the  due execution of that office. (Judges Act, s. 65)

     

Judicial independence:
Fundamental to justice under law

Canadians expect the judges in their courts to act impartially: that is, to make decisions on the basis of law and the facts before them, free of outside threats or pressures of any kind.

We have confidence that judges will act without bias because we are assured of their independence.

Guarantees of judicial independence are embedded in Canada's own Constitution Act of 1867, in language borrowed from legislation adopted three centuries ago by the Parliament of the United Kingdom:
That judges shall hold office during good behaviour, and be removable only by the Governor General on Address of the Senate and House of Commons.
Basically this means both the House of Commons and Senate have to pass a motion to remove the judge. It has never happened.
Canada's Parliament has also set in place a process to assess alleged breaches of good behaviour by federally appointed judges.

Under the Judges Act that role has been played since 1971 by the Canadian Judicial Council.

You may make a complaint in writing to

The Canadian Judicial Council
Place de Ville Bl
112 Kent Streetl, Suite 450l
Ottawa, Ontario
K1A 0W8


The Canadian Judicial Council receives many complaints each year that it cannot deal with.

    Note that the Council cannot:
  • overturn or change the decision of a judge
  • grant appeals or address demands for new trials;
  • compensate individuals;
  • look into general complaints about the courts or the judiciary as a whole;
  • investigate complaints about unnamed judges; or
  • investigate complaints about court employees or lawyers.
 

The Council's only power is to recommend to Parliament that a judge be removed from office.

Parliament has never had to face such a situation, although sometimes judges retire or resign before the matter gets that far. Where appropriate, the Council may express disapproval of a judge's conduct where the matter is not serious enough to recommend that the judge be removed.


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