Sample of Complaints received during 1992-1993
One complainant was upset over delays of five and six months in motions for summary judgment. The complainant said repeated requests had been made to the judge to speed up the process and argued that judicial inaction was responsible for his "rights and remedies to have been grossly compromised."
The judge apologized, citing a heavy workload as the reason for the delay. The judge was not aware of the complainant's requests for a hastening of the judgment process but said that, had he been told of the requests, the judgments would have been filed sooner. The Chairman said the delay was not grave enough to warrant further consideration by the Council.
In another file, a complainant involved in a real estate action complained that a judge was too slow delivering reasons for an oral judgment. The complainant needed the reasons, which were eventually delivered more than a year later, to exercise his option to appeal the judge's decision. The complainant sought an explanation and compensation for the delay.
The judge said it was regrettable that he had not released his reasons more quickly. He cited a heavy workload for the delay, adding that he had no indication from the parties involved that there was any urgency for obtaining the reasons. In reply to the complainant, the Chairman said it was regrettable that the judge's reasons for judgment were unduly delayed but pointed out that lawyers should be aware that, if their clients are put at a disadvantage by reasons of having not received reasons for judgment, it should be brought to the attention of the judge through the court registry. That did not happen in this case. The Chairman said there was no basis for further review and also noted that the Council has no mandate to provide compensation.
One complainant alleged that a judge displayed a bias against victims of sexual assault in the "insensitive and intrusive" manner he used to question her. The woman alleged the judge did not want to hear all of the evidence involved in her case by demanding yes or no answers and said the judge repeatedly interrupted her.
The judge denied any bias but noted that as a result of the complaint he had discussed the issue with the Crown Counsel on the case and was told that the judge sometimes gave the impression that he was biased. The judge apologized to the complainant and vowed to change his conduct.
In a second file, a number of complainants claimed a judge had demonstrated a bias against women by imposing a "mind-boggling light" sentence upon conviction of a person accused of sexual assault.
The Chairman explained the principle of judicial discretion with respect to sentencing and noted that if the sentence was too light it was a matter for the Crown to appeal.
In a child custody matter, a complainant accused a judge of being biased in favour of women after custody of his daughter was awarded to his estranged wife. The complainant did not take issue with the judge's decision but said the judge had "one set of rules for women and one for men." The complainant also took issue with being lumped in with fathers who do not take an interest in their daughters or who abuse women and children.
The complainant was informed that there was no evidence to support his allegation of bias against men. He was also informed that if he felt there was an error in the judge's custody decision, it was a matter for a court of appeal to decide.
One complainant alleged that a judge was in conflict of interest in adjudicating a case in which the municipal police force had been involved because the judge had once been a police commissioner.
The complainant was informed that there was no reasonable apprehension of bias and therefore no basis for any investigation.
In another case a complainant alleged that the judge was in conflict of interest because he had been an acquaintance of her family for a number of years and because she had consulted him regarding her case on several occasions.
The judge denied the allegations, noting that he had known the complainant superficially for a number of years but had never discussed the matter with her, except to advise her to speak to her lawyer when she questioned him about the length of time it was taking for the case to be set for trial. The Chairman said the complaint was "totally unfounded" adding that the judge's reply fully responded to the allegations.
One complainant alleged that a judge had rendered his decision without reading transcripts from an examination for discovery which earlier had been entered into evidence.
The judge acknowledged that the allegation was true and apologized. He noted however, that having read the transcripts as a result of the Chairman's request for his comments, he had concluded that the contents would not have changed his decision. In closing the file the Chairman expressed his disapproval of the judge's conduct.
A landed immigrant from Jamaica who had pleaded guilty to importing narcotics, said a judge had abused the judicial process by unfairly changing his mind about the disposition of her case and in the process, had caused her mental anguish. The complainant said the judge had proposed as a sentence that she voluntarily leave the country with her children rather than be separated from them during a period of incarceration and then had changed his mind and imposed a sentence of five years imprisonment. In his comments to the Chairman, the judge said he had been discussing with counsel the possibilities for an innovative sentence which would alleviate or avoid separation of the complainant from her children. After careful thought and bearing in mind general deterrence considerations, he had ordered a term of imprisonment followed by deportation.
Francophone plaintiffs in proceedings in Quebec complained that the reasons for judgment were given in English. It was explained to them that a judge can decide which of the official languages he or she will use when both are used in the proceedings. In this case, the defence had made its submissions in English. The complainants were reminded that the judgment would be translated free-of-charge should they so desire. They had been so informed earlier, when the judgment was rendered.
One complaint alledged that a judge had delayed his judgment in a case heard in 1989. The complainant said assurance was given in July, 1991 that a judgment on the case would be handed down within six weeks. But three months later, there was no decision and "the silence is overwhelming," stated the complainant. The complainant said the old adage "justice delayed is justice denied," could be applied to the case and complained that delayed judgment may have placed the entire proceedings in jeopardy due to a possible contravention of the Charter of Rights and Freedoms, "that is, the right to have a trial within a reasonable time."
Although the judgment was released soon after the Chairman requested comment from the judge and his chief justice, the complaint was referred to the full Committee for consideration in light of the fact that in 1985 the Council passed a resolution concerning delays in issuing reserved judgments. That resolution stated that "it is the view of the Council that judgments should be rendered within six months after hearings, except in special circumstances, and that all Chief Justices and Chief Judges should circulate the reserved judgment list to their judges."
Investigation by the Committee determined that the judge had four other reserved judgments which had passed the six-month period recommended in the 1985 resolution. The Committee advised the judge and chief justice that this was an extremely serious matter that could merit a full investigation if left unresolved. The judge retired but delivered the outstanding judgments before the expiration of the period allowed under the applicable legislation to complete reserved judgments.
In reply to the complainant, the Committee said the judge should have rendered a decision within six months as stated in the Council's resolution. "It was unfortunate that these suggestions were not followed in this case."
A member of the Bar complained that a judge had displayed "an apparent attitude and conduct" problem in his dealings with counsel, both in court and in chambers. The complaint dealt with two incidents. In the first case, the complainant alleged that the judge had "tied into" both him and a female counterpart over rules of court in relation to the process of exchanging pre-trial briefs. Subsequently, the complainant said he had another "run in" with the judge in his Chambers, which caused the complainant hurriedly to break off his meeting with the judge. The judge "appears not to really understand the process or understand his function in it,'' wrote the complainant.
The Committee said the judge's behaviour in court and in chambers showed a lack of respect for counsel. It informed the complainant that it appeared the judge had offended some members of the Bar and that this was "most regrettable." However, the complainant was informed that although the judge's behaviour was regrettable, it did not constitute misconduct sufficient to warrant a formal investigation.
This complaint file was opened when a complainant objected to statements made in a judge's reasons for judgment, concurred in by two other judges, in a domestic violence case before a provincial court of appeal. The judgment characterized the domestic violence which was the subject of the appeal as being inappropriate for proceeding to trial in the first place. The judgment contained criticism of the government's policies with respect to "zero tolerance" for domestic violence.
The complainant alleged that although legislation and regulations were in place, the judge "intends to nullify this policy, not due to any rule of law within his jurisdiction but because of his own personal opinions and upbringing." The complainant further stated that the judge's interpretations of his own citations appeared to be "incorrect and dangerous.'' If the judge's interpretations were correct, "any law, policy or regulation of any duly elected legislative body would be subject to review and nullification by any trial judge."
After examining the complaint, the Committee informed the complainant that the issue was a matter for appeal to a higher court.
The judge was the subject of a complaint from a law professor who was upset over comments the judge made during a lunch-time conversation at a conference. The professor was concerned that the judge "gave the impression that he thought he was unconstrained by ethical and humanitarian considerations" and generally did not take his judicial responsibilities seriously.
The complainant alleged that the judge had said he was not interested in the subject matter of the conference, never thinks about the consequences of his decisions to the individual participants and the only reason he was a judge was "for the pay cheque." The complainant also claimed the judge had said courses designed to make judges aware of gender bias are "propaganda."
In reply, the Committee expressed its regrets to the complainant that she had found the judge's remarks unsettling and noted that as a result of the complaint, the judge would perhaps be more sensitive about how his remarks might affect others.
A provincial attorney general filed a complaint about a judge for comments which allegedly were sexist and racist in nature. The complaint was filed at a time when the provincial government concerned was issuing directives and guidelines to eliminate sexist and racist comments of this nature.
The Committee directed further fact-finding by independent counsel after it became apparent that the judge in question did not appreciate the inappropriateness of his conduct. Counsel reported that the judge had been making similar comments for many years and did not consider them inappropriate or improper. Counsel said the judge did not exhibit malicious intent when he made the comments and noted that the judge indicated that he regretted making the statements and was prepared to avoid similar comments in the future.
In a letter to the Council the judge recognized his comments were offensive to some people. "I erred in my actions...this experience has chastened and educated me. I am ready, willing and able to avoid such comments in the future."
A three-member Panel was established to consider the counsel's findings. It agreed with counsel's recommendations that removal from office was not warranted. In a letter to the judge, the Panel said the judge appeared to have viewed his comments as "harmless banter which was intended to make people feel at ease with a judge or in the formality of the courtroom." However, the Panel also told the judge the general pattern of his conduct was "improper and simply unacceptable" for a person holding judicial office.
During the year one file was referred by a Panel of the Judicial Conduct Committee to the full Council. A chief justice alleged that there was reason to believe that a member of his Court had become "incapacitated or disabled from the due execution of the office of judge by reason of age or infirmity." After receiving comments on the allegation from the judge in question, the Chairman of the Judicial Conduct Committee referred the matter to a three-member Panel of the Committee. The Panel reported to the Council that there were sufficient grounds to warrant an investigation by the Council pursuant to subsection 63(2) of the Judges Act.
After considering the report of the Panel and the judge's written submissions, the Council concluded that there should be a formal investigation. The Council designated three of its members to be members of the Inquiry Committee. At year's end the Council was awaiting an indication as to whether or not the Minister of Justice of Canada would exercise his powers pursuant to subsection 63(3) of the Act and appoint one or more members of the Bar to the Inquiry Committee. This is the first time in the history of the Council that an Inquiry Committee has been established to consider an allegation that a judge may be "incapacitated or disabled from the due execution of the office of judge by reason of age or infirmity".