Do we need public oversight to the conduct of Judges?

Public

2016-10-05 Dr Z. Essak, MD - Vancouver, BC

Before we reach a crisis with the Judiciary in Canada is it time for public oversight to the conduct of Judges?

Recently, we have seen the case in Alberta where justice has been delayed and could possibly be derailed because a Judge was not up to date with applicable laws.

We have also seen a case of inappropriate remarks by a Judge, on keeping legs together, raising questions as to him continuing as a Judge.

These are not isolated cases. The Canadian Judicial Council receives many complaints annually, 159 in 2014 and 173 in 2015, on the conduct of Judges from across the country. How do they deal with them?

Will the Federal Government introduce legislation to add public oversight to the Canadian Judicial Council and committee responsible for dealing with complaints on the conduct of Judges?

To preserve confidence in our judicial system, Judges, because of their authority to rule on matters that directly affect the lives of individuals must aspire to a higher level of ethical conduct than all other professions.

Judges are human too and should they fall short in meeting the standard there must be in place a means to ensure they are required to reflect on their conduct, follow remedial recommendations, and in some cases no longer continue to serve as Judges.

Currently and historically, the Canadian Judicial Council (CJC) has the responsibility to deal with any and all complaints on the conduct of Judges. This is not for complaints on the ruling of Judges which must be handled through judicial appeal procedures.

There is no public oversight to how the CJC deals with complaints on the conduct of Judges. The CJC committee is composed of other Judges.

How does it work? I had occasion to find out.

The Judge, Honorable Mr. Justice Grauer, in a civil case where I was not a plaintiff or a defendant or called as a witness, in his written BC Supreme Court Judgment released in Vancouver on March 8, 2013 included what he himself described as an "irresistible" inference that I had not been the sole author of a specific email posted to a listserv, that I had received assistance in crafting it.

He was wrong, I alone conceived and authored the email. No one assisted me in crafting it. His inference was not based on fact, it was conjecture and could serve to discredit my efforts and misrepresent actions of others.

He should not have made an inference without the facts no matter how irresistible it was to him. Having done so he introduced statements in his written Judgment that may be considered libelous to someone not even involved in the case or called to the trial as a witness.

In December 2013, I submitted a complaint to the Canadian Judicial Council on this conduct of the Judge.

The response of the CJC dated January 30, 2014 included, "The mandate of the Council in matters of judicial conduct is to determine whether a recommendation should be made to the Minister of Justice, after a formal investigation, that a judge be removed from office by Parliament."

I followed up with the CJC on this narrow view of the mandate of the Council not being what I expected when reading the material provided on their web site, that the CJC has the authority to consider all complaints related to the conduct of a Judge and determine appropriate recommendations and actions to be taken not simply whether or not they warrant removal of a Judge.

I was not suggesting the conduct of the Judge warranted him being removed from serving as a Judge, but I had expected the CJC would fairly assess the complaint and provide recommendations to address the concerns raised.

Recommendations of the CJC might include some required reflection by the Judge and possibly remedial measures and, if appropriate, restitution measures such as an addendum to the written Judgment for historical reference.

In exercising the broader view of the mandate, the CJC would provide assurance to all Canadians that any reprehensible conduct by a Judge would be investigated, the Judge called to task and corrective actions taken as needed.

The followup response from the CJC dated April 2, 2014 simply referred me to the Judges Act, subsection 60(1) that: "The objects of the Council are to promote efficiency and uniformity, and to improve the quality of judicial service, in superior courts."

My concerns were not addressed by the CJC. It is also not clear if the Judge named in a complaint is made aware of the complaint, whether or not it may warrant removal, and if so the response of the Judge.

Judges reviewing complaints on the conduct of other Judges with no public oversight may not be working.

Do we need public oversight of the CJC on the conduct of Judges? How many complaints are received annually? How are they dealt with? Do those who file the complaints find the process and results satisfactory? How many don't file complaints at all expecting the process and outcome to be futile?

When I first put these questions to the Federal Government and opposition parties in May 2014, then Conservative Minister of Justice, the Honourable Peter MacKay responded that the Government couldn't do anything, they had to avoid any political interference with the judiciary or such perception.

In June 2016 the same questions about the CJC handling of complaints were put to the new Liberal Minister of Justice, the Honourable Jody Wilson-Raybould and Federal opposition parties.

Almost four months later, I am still waiting to receive a response from the Minister of Justice, the Honourable Jody Wilson-Raybould, as to the priority the Liberal Government will place on this, especially at a time of needing to add many new Judges would it not be appropriate to also add public oversight to the conduct of Judges?

This is not about political interference with the judiciary.

This is about ensuring a judiciary deserving of public confidence in the conduct of Judges.

Is it time, do we need public oversight to the conduct of Judges?

A simple way may be to ensure an independent public presence, not a lawyer or a judge, on the CJC and committee reviewing the complaints on the conduct of Judges.

More may need to be done.

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I decided to share the specifics of my complaint since the details are already part of the public record through my complaint filed with the CJC and subsequent correspondence with Federal Ministers of Justice and opposition members of parliament.

I have given the Canadian Judicial Council plenty of opportunity to address the complaint I filed along with making the former Federal Conservative Minister of Justice, the current Federal Liberal Minister of Justice, and opposition parties aware of the question, do we need public oversight to the conduct of Judges?

Furthermore, I expressed concern to the CJC that the conduct of the Judge in my complaint, having already made "irresistible" inferences about me, raised concerns of potential for bias making it difficult for me to proceed with bringing forward, to a hearing with him presiding, a very important related concern on the potential for abuse of Rule 7-5 of the Courts by lawyers for the defendants serving only to inconvenience and impose legal costs on individuals not involved with the case and not to obtain crucial evidence or, for that matter, any material evidence that was brought to trial through their use of Rule 7-5.

Leading up to the trial of the civil case in 2012, at the court hearing of the request for court orders under Rule 7-5, with Master Tokarek presiding, the court asked a lawyer for the defendants, Mr Abbas Sabur, "Why on earth would he (Dr. Essak) disclose the membership of DocLounge?" The court also asked Mr. Abbas Sabur if he would try to invoke Rule 7-5 on the mother of a party simply because they might have spoken with each other? No court order was granted.

Subsequently, lawyers (Shapray, Cramer, Sabur) and the defendants abandoned efforts to examine me and refused to reimburse me legal fees incurred in responding to their request under Rule 7-5. Rule 7-5 does include provision for reimbursement of legal fees but requires a Judge to issue a court order.

Potential abuse of Rule 7-5 can occur to anyone not even involved in a civil case and a court order for reimbursement of legal fees may serve as a precedence to deter inappropriate use of Rule 7-5.

Asking a Judge to rule on a matter that might set an important precedence could not be undertaken lightly by me when I already had concerns about the conduct of the Judge.

See doclounge survey, Have you ever filed a complaint on the conduct of a Judge?

Weblinks:

"Judges need public oversight" (guest editorial from Ottawa Citizen)

"The public should help oversee judges" Postmedia network

Prof. A.Wayne MacKay - Judicial Ethics: Exploring Misconduct and Accountability for Judges

The CJC website includes links to Annual Reports for 2013, 2014 and 2015 that include some information on complaints received by the CJC.

http://www.cjc-ccm.gc.ca/english/news_en.asp?selMenu=news_publications_e...

Samples of complaints are provided in the 2013 and 2014 Annual Reports. The 2015 Annual report does not include samples of complaints and in the opening says,

We have heard you and want to do better. We can, and will, make better use of Council’s website to meet the information needs of those who visit.

The New Annual Report will now focus squarely on financial and caseload reporting with a brief section that presents Highlights of Council’s work

...

Number of complaints opened = 173

... Readers are encouraged to visit the new Summary of Complaints section on the website (under construction) for more detailed information on the types of complaints received and they were treated.

No link is provided and there is no easily identifiable link on the CJC website for the Summary of Complaints.

CJC 2015 Annual Report,
http://www.cjc-ccm.gc.ca/cmslib/ar14-15/en.html

http://www.cjc-ccm.gc.ca/english/news_en.asp?selMenu=news_currentrelease...