As Supreme Court Justice Faces Complaint, Bill Would Change Handling of Allegations

Supreme Court of Canada Justice Russell Brown looks on during his welcoming ceremony at the Supreme Court in Ottawa on Oct. 6, 2015. The Canadian Press/Adrian Wyld

A new law working its way through Parliament could soon change the process for handling allegations against judges—even as a SupremeCourt justice remains on leave while a complaint against him is reviewed.

Justice Minister David Lametti said that if it passes, Bill C-9 would amend the Judges Act to create a new process for the Canadian Judicial Council to review misconduct allegations that are not serious enough to warrant a judge’s removal.

“Bill C-9 will strengthen the process for dealing with complaints against federally appointed judges and gives the Canadian Judicial Council new tools to deal with misconduct cases,” said Diana Ebadi, Lametti’s press secretary, in a written statement.

“Its purpose is to improve transparency and accountability, and ensure greater confidence in the justice system.”

The bill, which is currently being considered by the Senate, would also clarify the circumstances under which a judge can be removed, and change the way the council reports its recommendations to the minister.

The judicial council announced Monday it is reviewing a complaint about the alleged conduct of Supreme Court Justice Russell Brown, but it did not disclose the nature of the complaint.

Chief Justice Richard Wagner put Brown on leave at the beginning of February pending a review.

The Canadian Judicial Council has authority over federally appointed judges and it receives, reviews and deals with complaints. It works at arm’s length from the executive and legislative branches of government.

“It is a relatively complex process and it’s a multistage process,” said Trevor Farrow, a professor at Osgoode Hall Law School.

Anyone can make a complaint, but it must be done in writing and sent to the judicial council.

The council’s executive director reviews complaints and any relevant information to determine if the complaint warrants further consideration.

Complaints that are deemed trivial, vexatious, made for an improper purpose or without substance won’t be looked at further.

Complaints that don’t involve conduct, and “any other complaints that are not in the public interest and the due administration of justice“ are also not considered by the council.

If the complaint does warrant further consideration, it moves to an additional stage of review.

“That involves (other) judges and that certainly involves the council taking a longer look at the at the complaint,” said Farrow.

The judge facing the complaint may be required to undergo additional training or make an apology.

Decisions can also be challenged along the way, creating delays in finding a resolution.

But if the review panel determines additional scrutiny is needed, a full inquiry will take place and recommend to the minister of justice whether a judge should be removed.

That won’t be the case under the new regime.

If Bill C-9 passes, it would remove the justice minister from the process and impose mandatory sanctions on judges when a complaint of misconduct is found to be justified. That could include counselling, continuing education and reprimands.

“We want judges to be able to make decisions in very complicated cases, difficult cases, without worrying about the recourse by the parties, by government,” said Farrow.

“They need independence in order to make fair and free decisions and they also need to be independent, not just in the decision-making process, but in the sanctioning process.”

Wagner told the Canadian Bar Association last month that the prospective law would handle complaints “more effectively and efficiently.”

Any regime dealing with judicial complaints must strike a balance between protecting the privacy and independence of judges and being transparent with the public, said Farrow.

“One of the concerns about the current process is that there is not enough transparency, and it’s hard for the public to trust it if they can’t see it,” he said.

“At the core of all of this is trust in the judicial process as part of a core value of our society.”

Bill C-9 would also require the judicial council to publicly report on the number of complaints it receives and how they were resolved.

Lametti’s office said he is looking forward to testifying about the proposed law at an upcoming committee meeting and urged his Senate colleagues to work on getting it passed.

The bill has support from all parties.