Canadian Judicial Council concludes its inquiry into the conduct of Justice Matlow

Ottawa, 3 December 2008 – After conducting a public inquiry, the Canadian Judicial Council has completed its review of the conduct of the Honourable P. Theodore Matlow.  In a report to the Minister of Justice, the Council recommends that Justice Matlow not be removed from office.  The Council’s report contains two sets of reasons, with the majority of members holding the view that while Justice Matlow has been guilty of misconduct, the test for recommending his removal from office has not been met.  

An overview of the majority and minority reasons contained in the report follow and the full report is available on the Council’s website.

In accordance with Canada’s Constitution, a judge may only be removed from office through a joint resolution of Parliament.  The Council’s mandate, under the Judges Act, is to make a recommendation to the Minister of Justice in that regard.

The Canadian Judicial Council is composed of the chief justices and associate chief justices of Canada’s superior courts.  Information about the Council can be found on its website at www.cjc-ccm.gc.ca.

Contact
Norman Sabourin, Executive Director and Senior General Counsel
(613) 288-1566 ext. 301

Overview of Report to the Minister of Justice

The Canadian Judicial Council has presented a report to the Minister of Justice in which it recommends, after conducting a public inquiry, that the Honourable Ted Matlow should not be removed from office.   

The report contains two sets of reasons: one prepared by 17 of the 21 members who reviewed this matter; and another set of reasons prepared by 4 members.

Majority Reasons

• A review of all the circumstances leads to the conclusion that Justice Matlow has been guilty of judicial misconduct in certain respects and, through his inappropriate and unacceptable actions, Justice Matlow placed himself in a position incompatible with the due execution of the office of judge.  However, the test for recommending removal from office has not been met.
• The mandate of the CJC, in reviewing the recommendations of an Inquiry Committee, is to come to its own conclusions about whether a recommendation should be made that a judge be removed from office.  The CJC is not bound to defer to the conclusions of the Inquiry Committee.
• The Ethical Principles are not a code of conduct.  However, they reflect many of the principles underlying various international instruments about the independence of the judiciary.  The Principles serve as a useful touchstone of generally accepted ethical standards in the judicial community.  They guide judges in how they should act on and off the Bench.
• Judges are not prohibited at all times from speaking out about a controversial matter.  The question is one of context.  Some of Justice Matlow’s conduct and speech in this case did fall within the permissible range of activities for any citizen, including a judge, and do not constitute misconduct.  However, there are limits to a judge’s ability to publicly comment on a contentious issue.  A judge’s freedom of expression is subject to scrutiny by judicial councils.
• Judges have the right, in their private capacity, to contest, as do other Canadians, decisions that affect their interests.  However, there are limits to what a judge can do.  A judge is not entitled to use the prestige of judicial office to advance his or her private interests.  Nor should a judge use intemperate language where others would likely know, or could be expected to know, that he or she is a judge.  And judges are not entitled to act as legal advisors for individuals opposing government action.
• A judge’s decision to recuse or not from a given case includes a subjective element.  With regard to the SOS Application, Justice Matlow’s failure to recuse himself may demonstrate seriously flawed judgement.  However, it was a discretionary judicial decision.
• It was not inappropriate for Justice Matlow to attempt to renew interest in the Thelma Road issue in October 2005.  However, it was inappropriate for him to continue pursuing the issue by emailing and delivering documents relating to that issue on 4 and 5 October 2005.  This is because he knew, at the time, that he would shortly be sitting on a case involving a disputed planning matter that was very similar in nature to the Thelma Road matter and was before the same municipal government.
• Justice Matlow has served on the Bench for 27 years.  No evidence was provided of any improper or inappropriate behaviour on his part on or off the Bench until the events giving rise to this matter. 
• Justice Matlow’s apology to the CJC was sincere, as was his declaration that he will avoid any improper conduct in future. 
• While this is not a case that warrants removal, Justice Matlow must accept responsibility for his improper conduct and, therefore, he is directed (1) to make written apologies to those who were affected by his conduct; (2) to attend a seminar on judicial ethics; and (3) to seek advice before participating in any public debate in future. 

Minority Reasons

• The recommendations of the Inquiry Committee should stand.  Justice Matlow’s conduct warrants a recommendation for removal.
• The judge in this matter used his status as a Justice of the Superior Court to seek the intervention of municipal and provincial politicians in a matter that was the subject of controversy.  He pursued this course of action over more than two years.  He failed to act with restraint, in keeping with the duty of any judge.
• The fact that a judge is “unaware” that a certain course of action is a breach of ethics should not mean that there is no breach.  An intentional breach of ethics may be a more serious matter, but judges are expected to be cognizant of, and sensitive to, their ethical obligations in all matters.  This is especially so for judges who have long years of service.
• Judges are free to decide whether or not to recuse from a given case; however, neither the duty to take steps to avoid sitting or the duty to disclose information to others in certain circumstances, engages the judge’s discretion to recuse or not to recuse in a given case.  These are independent ethical obligations that exist before the judge commences to hear a case.  Those duties are calculated to ensure judicial impartiality and the appearance of same.
• Whether or not a judge appears to be impartial in a given case should be measured by an objective standard.  It is the test judges should apply in deciding whether to sit on a case, whether to inform counsel or judicial colleagues of the facts that might give rise to a conflict, and whether they should recuse themselves.
• One of the purposes of upholding judicial ethical principles is to avoid circumstances that would require a judge to recuse from a given case.
• The judge’s apology to the CJC in this case was inadequate and of limited value in considering what recommendation should be made to the Minister of Justice.
• The public perspective is very important in deciding whether or not a judge should be removed from office.  In this case, public confidence in the impartiality, integrity and independence of the judicial role has been seriously undermined.  The judge’s conduct warrants a recommendation for removal.

Complaints and Inquiries process:

When someone believes that a judge’s personal conduct (on or off the bench) is in question, a complaint may be made to the Canadian Judicial Council. The Council examines only issues of conduct and does not review a judge’s decision in law.

The complaints process is simple: the complaint must be in writing, and it must concern the conduct of a federally appointed judge. No special forms are necessary. No legal counsel is required. No fees are charged. To the extent possible, the Council reviews anonymous complaints in the same way as complaints that are signed.

When a complaint is made, the question before the Council is ultimately whether or not a judge’s conduct prevents that judge from discharging his duties as a judge. In such a case, the Council must decide whether or not to recommend that a judge be removed from office.

A complaint is first reviewed by a member of the Judicial Conduct Committee. A complaint can be dismissed when it is clearly frivolous or does not fall within the mandate of the Council. In roughly half of cases, the complaint is studied in more detail and the judge in question, as well as judge’s chief justice, are sent a copy of the complaint and asked for their comments. The complaint is often resolved at this stage, with an appropriate letter of explanation to the complainant.

If the complaint cannot be resolved at that stage, the file can be referred to a Panel of up to five judges for further review. When a Panel concludes that the complaint has merit but is not serious enough to move to the next stage (a formal hearing by an Inquiry Committee) then the Panel may close the file with an expression of concern, or may recommend counselling or other remedial measures.

When the complaint may be serious enough to warrant the judge’s removal, the Panel can recommend that the Council establish an Inquiry Committee. After completing its investigation, an Inquiry Committee reports its findings to the Canadian Judicial Council. The Council then decides whether or not to recommend to the Minister of Justice of Canada that the judge be removed from office. In accordance with the provision of Canada’s Constitution, a judge may be removed from office only after a joint resolution by Parliament.