The Canadian Judicial Council was created in 1971 by the Parliament of Canada following many years of discussion about the need to coordinate professional development and judicial conduct matters for judges, in a way that would respect the judiciary as an independent branch of government. The review of complaints had previously usually been coordinated by Canada's Department of Justice, with the occasional involvement of local Canadian Chief Justices.
The Canadian Judicial Council was granted power under the Judges Act to investigate complaints made by members of the public or the Attorney General about the conduct of federally appointed judges. After its review and investigation of a complaint, the Canadian Judicial Council can make recommendations to Parliament through the Minister of Justice that a judge be removed from office.
Canada is one of the very few countries where a complaint can be made against the Canadian Chief Justice of Canada in the same way as any other judge. The Chief Justice of Canada is not involved in the review of complaints.
In its 40-year history, the Canadian Judicial Council has only ordered 11 public inquiries and only twice recommended that a judge be removed from the bench. In the 145 years since Confederation, only five superior court judges have been recommended for removal from the bench. All but one resigned before being removed.
The Canadian Judicial Council has declined to recommend removal even in cases where there was a finding of inappropriate conduct. In 2008, a Canadian Judicial Council inquiry panel recommended removing Ontario Superior Court Justice Theodore Matlow from the bench, but a majority of the full Canadian Judicial Council overruled the removal recommendation despite agreeing there was misconduct. Rocco Galati criticized the difficulty of removing judges, saying that "it's easier to get a constitutional amendment than to remove a judge."
After a full panel of the Canadian Judicial Council ignored its committee recommendation and recommended that Quebec judge Michel Girouard should remain on the bench, federal Justice Minister Jody Wilson-Raybould and Quebec Justice Minister Stéphanie Vallée ordered the Canadian Judicial Council to reconsider its decision.
The Canadian Judicial Council has said that misconduct should not guarantee the judge's removal, and the gravity of the misconduct must be determined. Osgoode Hall Law School professor Trevor Farrow said that the rarity of removals reflects the high value that is placed on independence for judges in Canada.
The Canadian Judicial Council is composed only of judges. Galati criticized the makeup of the Canadian Judicial Council, pointing out that judges are the only truly self-regulating profession in Canada, and has urged public participation in the process. Osgoode Hall Law School professor Allan Hutchison argued that the Canadian Judicial Council should include members of the public, and criticized the hypocrisy of judges calling for natural justice in other professions. University of Calgary Faculty of Law professor and Canadian Association for Legal Ethics president Alice Wooley said including laypersons in the Canadian Judicial Council would ensure that the process is less insular and more transparent.
In September 2003, the Canadian Justice Review Board, a non-governmental advocacy group and "coalition of citizens," expressed concern that the Canadian Judicial Council is too secretive. Wooley criticized the Canadian Judicial Council for not clearly articulating what constituted misconduct worthy of sanctions. |
