Taxpayers have been dishing out millions of dollars to cover the
legal fees of federal judges under investigation who are
fighting the disciplinary process.
Judges facing complaints from the public get unlimited access to
financial and legal resources. Some draw out public inquiries
for years, by fighting all the way to the Supreme Court of
Canada — at taxpayers’ expense.
The latest inquiry, into federally appointed Manitoba Associate
Chief Justice Lori Douglas, who resigned in November after
facing scrutiny over naked photos of her that were posted
online, wound up in Federal Court. It has already cost taxpayers
almost $4.5 million, according to official figures obtained by
Between 2011 and April this year, taxpayers were billed $1.5
million for Douglas’ legal fees through the Office of the
Commissioner for Federal Judicial Affairs, and nearly $3 million
for the Canadian Judicial Council’s expenses in the inquiry. The
costs will continue into the current financial year.
Last week, the Star highlighted that fact that
more than 99 per cent of complaints against federal judges are
dealt with in secret
by the council, which is made up
exclusively of judges.
Established to investigate complaints against the country’s
1,200 federally appointed judges, the council conducts
closed-door investigations into about 200 complaints every year,
never revealing publicly the judge’s name or province, details
of the allegations, or the results of the investigation.
The most serious complaints are dealt with via a public inquiry,
where the council has the power to recommend that Parliament
remove a judge from office.
Since 1990, only 11 judges have faced a public inquiry —
representing fewer than 0.5 per cent of all complaints.
But in recent years, the sums the council has spent defending
its inquiry process in court have started to outstrip the cost
of reviewing complaints, said Norman Sabourin, the council’s
Sabourin says he has raised concerns with the justice minister
about the lack of rules governing expenses paid for federal
judges under investigation.
“A legitimate question to be asked is whether [significant]
amounts of money should be paid to a judge, without any
parameters,” Sabourin said.
“Judges certainly are entitled to get their legal fees publicly
funded, but there have to be parameters. They can’t go running
to Federal Court at every single stage of the process.”
Judges remain on paid leave during investigations. Even if they
are stripped of office, they have the option of retiring or
resigning to keep their pension — an option all those targeted
for an inquiry so far have exercised.
Ontario Superior Court Justice Theodore (Ted) Matlow, who faced
an inquiry in 2008 over his involvement in a citizens’ campaign
opposed to a Toronto condo complex, estimated the total cost of
his inquiry as up to $5 million. Matlow told the Star it would
be “reasonable” to assume most public inquiries cost about $4
Toronto constitutional lawyer Rocco Galati has called the
disciplinary system “a royal waste of public funds.”
Every step of the process is set up in the judges’ favour — they
are judged exclusively by their peers and have unlimited access
to public funds to defend themselves, Galati said.
“A judge who should or would be removed can simply stall the
process on full salary by bringing judicial reviews and
stretching it out to a point where they can, at their own
convenience, resign,” he said.
In contrast to almost all other disciplinary settings, including
regulatory bodies that oversee provincial judges, justices of
the peace and other professions, no rules govern the amount of
money a federal judge can spend on legal defence, and no other
disciplinary system funds appeals of its own decisions, Sabourin
Federal judges have a limit on the hourly fee that can be
charged by their lawyers, but there’s no limit on the number of
hours charged, he said. “Here, there are no parameters.”
Complaint proceedings into Ontario Justice Paul Cosgrove’s
“pervasive” misconduct during a 1999 murder trial, where he
wrongly declared that the OPP and Crown attorneys had committed
more than 150 violations of the accused person’s charter rights,
were drawn out for five years while he challenged the inquiry
all the way to the Supreme Court of Canada. He lost in 2009.
Cosgrove was paid his $260,000 annual salary during the
investigative process and court proceedings. He chose to resign
two days after the council recommended Parliament remove him
Similarly, the ongoing inquiry involving Quebec Superior Court
Justice Michel Deziel, over allegations of illegal political
financing before his appointment to the bench, has been drawn
out by two applications filed to Federal Court. The inquiry
began in April and both of Deziel’s applications were dismissed
by courts for being “frivolous and premature,” Sabourin said.
“All the work that’s gone through has been funded, and my
question is, should there not be a public policy about what
should or should not be funded?”
The council has been holding informal discussions with the
commissioner’s office and Minister of Justice Peter MacKay about
changing the legislation, but Sabourin said “reform is not in
“The CJC is not accountable for the funds, but if a judge to the
tune of $1.5 million challenges everything we do, we have to
respond,” he said.
The Office of the Commissioner for Federal Judicial Affairs
could not provide a figure for the total cost of the 11 public
inquiries involving federal judges since 1990; spokesperson Marc
Giroux said the information was “not readily available.” He
would not respond to questions about the council’s concerns.
MacKay asked for a review of the council’s investigative process
earlier this year. A representative from the minister’s office
responded that, “We look forward to the results of that review
with a view to ensuring that taxpayers’ dollars are well spent.”
Last month, the Star revealed that
Ontario taxpayers are picking up the legal bills of justices of
disciplined for offences including sexual
harassment, falling asleep in court and demonstrating a
“pervasive” lack of understanding of basic law.
Similarly, federal judges’ legal fees are always paid,
regardless of whether they are removed from office or not.
This is different from the current practice governing provincial
judges at disciplinary hearings held in Ontario.
Compensating the legal fees of provincial judges is up to the
discretion of the Ontario Judicial Council. Since 2002, four
Ontario judges have been found guilty of judicial misconduct —
and not one has had his or her legal fees paid.
The Lori Douglas inquiry
The Canadian Judicial Council was created in 1971 to investigate
complaints into federal judges. It is now spending more public
money defending its processes than reviewing complaints.
The latest public inquiry, into Manitoba Associate Chief Justice
Lori Douglas, who came under scrutiny after nude photos of her
were posted online, cost the council nearly $3 million,
communications director Johanna Laporte said.
Between 2011 and April this year, the council incurred costs for
independent counsel, the non-judicial members of the inquiry
committee, legal advisors, a lawyer to assist with judicial
review applications and other costs relating to translation,
court reporting, transcription services and security services,
Independent counsel for the Douglas inquiry during the 2013-14
financial year cost $294,000 alone, according to the Public
Accounts of Canada. The role of independent counsel is to
present all the evidence, in favour and against the judge, in
the public interest.
Douglas’ legal fees cost taxpayers $1.5 million, through the
Office of the Commissioner for Federal Judicial Affairs.