Last Updated: 19th April 2009, 3:34am
Who judges the judges? We have about 1,000 federally appointed Superior Court judges. They earn a good salary and have unsurpassed job security. Unless they retire early they are almost guaranteed a job until age 75.
That's a good thing because we want judges to be independent. We want them to dispense justice without fear or favour to any party, including the government.
But what do we do when a judge's conduct comes under fire? Here's a sample of judicial conduct that has been the subject of complaints.
In 2007 British Columbia Supreme Court Judge Peter Leask repeatedly used foul language in open court in an exchange with the prosecutor. There were two references to a four-letter word beginning with "f", a four-letter word beginning with "s" and a seven-letter word beginning with "g".
Yves Alain, a Quebec Superior Court Justice, was convicted of impaired driving in 2007.
In 2005, Ontario Superior Court Justice Ted Matlow acted as a legal advisor to a neighbourhood group and used "intemperate" language in criticizing a development project.
Justice Mary F. Southin of the British Columbia Court of Appeal was the subject of a complaint for smoking in her office in 2003.
In the late 1990s, Ontario Superior Court Justice Paul Cosgrove presided over a criminal trial and made more than 100 erroneous rulings. He allowed the trial to turn into a "three-ring circus" and abused his contempt powers.
In 1998, Mr. Justice Frank Barakett of the Superior Court of Quebec made comments derogatory to Aboriginal culture.
In 1995, during a sentencing proceeding, Quebec Superior Court Judge Jean Bienvenue made sexist comments and minimized the suffering of Holocaust victims.
Before being appointed a judge, then mayor of Sudbury, Leo Landreville, received a large gift from a company which had business dealings with the city. The gift was discovered after his appointment to the bench.
Another judge sentenced an elderly aboriginal woman to jail on a contempt charge. She was in fragile health and died shortly after the sentencing.
Of all these cases only Cosgrove, Landreville and Bienvenue resigned after their conduct was deemed serious enough to justify termination and be referred to Parliament. The others remain as judges.
The Canadian Judicial Council consists of 39 judges. These are the cream of the cream, chief justices and associate chief justices. They ultimately decide whether a Superior Court judge's conduct should be brought to Parliament for a vote on dismissal.
The number of complaints made against judges has increased from 145 in 1998-99 to 189 in 2007-08. There have been about 3,000 complaints since 1971. Remarkably, only seven complaints have resulted in public hearings and only four judges were deemed worthy of being brought before Parliament.
The reason so few complaints lead to a public hearing is in part due to the fact that most complaints are misguided.
There is no point in filing a complaint over the specifics of a decision. Judges are allowed to make mistakes. They are allowed to render erroneous decisions. They sometimes misapprehend the law. Sometimes they don't get the facts right. No judge has perfect insight into whether witnesses are lying or telling the truth.
The general rule is a judge's decision should be appealed and cannot lead to dismissal, whereas only a judge's conduct may lead to dismissal. Conduct that can bring the judiciary into disrepute or lead to an irrevocable loss of public confidence in the judge's abilities may lead to dismissal.
Serious judicial incompetence certainly brings the judiciary into disrepute and can lead to a loss of confidence in a judge's abilities yet the CJC has never ruled that judicial incompetence can lead to dismissal. While that may one day take place, it is very close to disciplining a judge for an erroneous decision and that is a door judges don't want to open.
The real issue for me is who should judge our judges.
While I agree with the CJC decisions I've read, I am uncomfortable in any situation where members of a group judge other members of the group. We are naturally skeptical about any self-regulating or self-investigating body.
It isn't enough for the CJC to consult with outside sources. It's time for some non judicial members to sit with the CJC.
Commentary by the Ottawa Mens Centre
Wow, way to go Alan,
Nice to see a journalist tell it the way it really is except this writer would make a few
more direct statements.
The present system encourages corruption and flagrant abuse of power.
Its a very sick system that makes Canada less than a third world justice system,
its even worse because it pretends to be legitimate when it is not.