Public Confidence in Canadian Justice: A Rough WeekNSRLP
Last week the Canadian Judicial Council (CJC) handed down its decision in the investigation of Justice Michel Déziel of the Quebec Superior Court. This case illustrates the extent to which the current CJC process works to protect judges, rather than to hold them accountable to the Canadian public.
Justice Déziel has admitted that he handed over more than $30,000 from a private business to a municipal political party during a 1997 campaign, even though he knew that corporate donations were illegal. M. Déziel – as he then was – laundered the money by breaking the amount into cheques of $750 in order to evade the rules on corporate donations to political parties.
Despite the (uncontested) fact that this action was illegal, and that Justice Déziel (then a lawyer in practice) “knew full well” that it was illegal, the CJC Inquiry Committee established to hear the Déziel case wrote in a news release that the judge’s past action, “when considered against a number of factors, did not undermine public confidence in his abilities to discharge the duties of his judicial office.”
The CJC Inquiry Committee applied the so-called Marshall test, asking:
“Is the conduct alleged so manifestly and profoundly destructive of the concept of impartiality, integrity and independence of the judicial role, that public confidence would be sufficiently undermined to render the judge incapable of executing the judicial office?”
A majority of the Panel – 16 justices – concluded that it was not.
What is the problem here?
The Marshall test – describing “conduct … manifestly and profoundly destructive of… impartiality, integrity and independence” (my italics) sets a pretty high bar, which we could argue about.
However, even if we are willing to accept the Marshall test as it is presently framed, it does not address the huge flaws in the CJC’s investigation and recommendation process, issues that I have written about before.
- The highly legalistic and fundamentally adversarial approach taken by the Review Panels and, in particular, the Inquiry Committees, in reaching a decision. Past Inquiry Committee processes are awash in debates over procedural legal issues, and over the years have created a mountain of costly and time-consuming precedent. This approach perpetuates a focus on technical legal arguments instead of an examination of the merits of the complaint from the perspective of a member of the public.
I suppose we should not be surprised that when a judge is the “accused”, they bring every legal tool at their disposal to bear on ensuring that the process is favorable to their interests. However in the process, both the significance and the impact of the behavior being complained about is often lost in the technicalities.
- A crucial actor in the CJC processes is the “Independent Counsel” (IC). The job of the IC is to “assist the committee in carrying out its responsibilities by gathering, marshalling and presenting the case against the judge before the committee.” There has been conflict over the role of the IC before, and in particular questions over the meaning of “independent”.
In the Déziel case, the dissent (discussed below) presents a case study of the problems of adversarialism in the CJC process in its critique of the IC’s role. The dissent sets out in devastating detail how the IC in Déziel, rather than acting as an “independent” advisory voice, assumed the characteristics of defence counsel for the judge, making arguments about character and mitigating factors.
- Each Inquiry Committee tasked with investigating the possible removal of a judge for misconduct (as well as each Review Panel that considers lesser disciplinary action and reprimands for ugly judicial behavior) is composed solely of judges. There are no lay members. In other words, the Bench is marking its own homework here – and almost always decides that it has done a perfectly fine job.
Forgive my cynicism, but perhaps this is reflected in the CJC scorecard. Of 176 Panel Reviews conducted from 2011-2014, just 2 upheld the complaint against the judge. And of 11 Inquiry Committees since 1971, only 2 have recommended removal of a judge for misconduct (although several judges have chosen to resign before the Committee’s final decision).
Whether or not the frequency with which judges against whom complaints are brought are exonerated has anything to do with their being judged by their peers, it seems reasonable to speculate that both public confidence in the judiciary, and the credence of the assertion of judicial accountability, are damaged by this scorecard.
Which brings us back to Justice Déziel
A three-judge minority – in a dissent written by Chief Justice Derek Green of the Supreme Court of Newfoundland & Labrador – believed that Justice Déziel should be removed from judicial office.
CJ Green uses the word “integrity” a total of 180 times in his opinion, describing it as:
“…the central judicial quality, more important than wisdom, learning, experience, diligence or intelligence. Without integrity, no other judicial qualities are even significant …(I)ntegrity describes what you do when no one is looking.” (paras 29- 30)
CJ Green also quotes from a judgment by Gonthier J. (in Re Therrien) that describes judicial integrity as “something far above what is demanded of their fellow citizens” (para 111). It is critical to public trust in the legal system. He concludes:
“There is thus a direct connection between public confidence in the judicial system and the image of the integrity of the judge.” (para 27)
The dissent in Déziel clearly articulates the problem of adversarial and legalistic defences when considering matters of public trust.
We need a new approach to matters of public trust
In contrast, the majority opinion in Déziel presents a diluted and insubstantial description of integrity that amounts to a collective helpless shrug. It states that:
“…integrity is a quality that is difficult or impossible to conclusively prove in positive terms.” (para 57)
What does this mean for the lovely prose of the Marshall test? If this really is the way the CJC sees its role, might one be excused from wondering why we have a complaints process at all?
CJ Green reframes the question that the CJC should ask when it investigates complaints against judges from a technical and legalistic one, to one of context and impact. Instead of adopting “an analytical approach which resembled…the analysis of a sentencing judge” (para 70(c)), CJ Green argues for an approach that focuses on the central question of integrity and looks at the significance and impact of the questionable behaviour, rather than burnishing the judge’s character or advancing defences for his choices.
If the increasing numbers of individuals who experience the courts without counsel, through no fault of their own, see the judges who hear their cases as lacking any accountability, there will inevitably be a crisis of public confidence in the justice system. It is no longer enough to say “too bad” – we have to fix this. That starts with fixing the CJC process.