Public Confidence in Canadian Justice: A Rough Week

Public Confidence in Canadian Justice: A Rough Week

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.

These include:

  • 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.

 

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Comments (18)

  • Larry E Doucet Reply

    I’m not going to read what it’s says however from a wrongfully convicted Canadian citizen there should be more than that judge making dicisions
    that how poor people get wrongfully convicted like me,harrase,bullied and yes torture by the RCMP the whole just justice system and our politicians no this but they don’t care about the poor I was kick out off my own house for the wrongdoing of other especially the RCMP and our courts I don’t want revenge but it’s money first and justice after there should me a few people nominated to oversee these trials that are held in secrecy ,I find it’s a democracy if you got money if not it’s a dictatorship money first justice after.

    December 8, 2015 at 5:25 pm
  • sudokutea Reply

    Moral Exemplar
    In Australia, the model litigant obligation can be traced back at least as far as the comments of Griffiths CJ in Melbourne Steamship Co Ltd v Moorehead: 1 The point is a purely technical point of pleading, and I cannot refrain from expressing my surprise that it should be taken on behalf of the Crown. It used to be regarded as AXIOMATIC that the Crown never takes technical points, even in civil proceedings, and a fortiori not in criminal proceedings.

    In AUSTRALIA the “MODEL ROLE LITIGANT” is the LAW for a Government Party to Litigation.
    As it is defined, the party CANNOT make overly technical arguments.

    In Canada, Judges, when it comes to judging YOU AND ME, do not measure us with the same ruler.
    Now when it comes to judging the judges … er where is that GOLDEN RULER?

    December 8, 2015 at 5:56 pm
  • sandra olson Reply

    this review system is the same in the medical field, and with lawyers generally. self regulation has no history of honesty. I have had judges , yelling at me, calling me names, insulting my integrity. disregarding my entire point, refusing to allow me to even make a point. etc etc, the judicial counsel when I contacted them, did the same. then reminded me the judge could do what he or she felt like. this is a real problem and why people look at honesty in the judicial system as simply a lie.

    December 8, 2015 at 6:46 pm
  • Dom Bautista Reply

    Quis custodiet ipsos custodes?

    December 8, 2015 at 7:23 pm
    • Larry E Doucet Reply

      During the Second World War the Nazis control everthing now history repeats itself the lawyers control everthing,I guess our government don’t really care and they call this a democracy,it’s one for the big shot in Ottawa,and the laws that are drafter without the people consent,in other word they do whatever they please.

      December 10, 2015 at 12:13 am
  • Donald Best Reply

    “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?”

    I have to agree with that statement. In 2011 I complained to the CJC that a Superior Court of Ontario justice had unnecessarily and recklessly released into the public domain some 100,000 pages of unredacted documents from my lawyer’s legal files; containing Identity Information as defined in the Criminal Code and other private information for dozens of persons totally unconnected with me or my civil case. This unredacted information included names (including children’s names) addresses, dates of birth, drivers license numbers, passport copies and numbers, banking information including account numbers, computer network passwords and medical records: including medical records for my lawyer’s dying mother confined in a mental institution.

    The Canadian Judicial Council decision was that “any unnecessary publication of identity information is regrettable. However, (the reviewing CJC judge) does not accept the inference that any such publication constitutes judicial misconduct.”

    “Regrettable”

    Here we are four years later and all of that information is still in the public domain, with the resulting identity thefts still happening.

    Apparently, the sections of the Criminal Code making reckless distribution of Identity Information an indictable offence do not apply to judges.

    Well, as long as Canadians now know what the standard is… thanks to the CJC.

    December 8, 2015 at 10:56 pm
    • Larry E Doucet Reply

      I was charge twice with taking shrubs of my driveway after I had it surveyed and one RCMP officer came over to my house and told me to get out of my house and not to return shaking his book at me and asking me what color I wanted I got charge for that,I was in court in Annapolis Royal for two days all kept in cecrecy these people responsible lied two days and showing pictures to the judge he didn’t care either,they wanted me to give them my small pension I needed to let ve on,this is only a tip of the iceberg the RCMP that told me to get out of my house said it was a lie under oath,I do don’t supeny him. If they don’t get nothing for lying in court what the sense,and further more we got these yellow striped police officers looking at the primeminester and giving our horses to the queen,if you want to do something go after judge Pierre Muise whom was named Supreme Court judge dye immediately after my trial and Lyid Lombard crown prosecuter and also the Crimnal Lawyers who contradicted all the complaints I made to the RCMP complInt board,what a communist system,but one thing if it’s makes good news on there side good,they even control the press and the media,they control everthing just like the SS and like they say history repeats itself if you want to do so me thing right do it.

      RCMP

      December 9, 2015 at 12:45 am
  • Karin Litzcke Reply

    To begin with I should say that I am not a fan of the “heads should roll” school of institutional management. I hope no one ever holds my teens, twenties, or even thirties up to me, so I don’t like the idea of scalping others on the basis of what was done years ago. In my opinion, if the guy has been a decent judge for n years, I could live with him continuing to serve.

    On the other hand, since it’s not rocket science to sample public confidence, the biggest hit to public confidence likely comes from the fact that CJC is not doing so. Of course, the dragon of shaky public confidence has now gotten so big that everyone fears to disturb it. Ask the little question about Déziel, and the public is likely to answer with a tsunami of “well I don’t have a problem with him, but let me tell you about this other judge.”

    Most systems don’t ask the question because they don’t want to hear the answer. But the longer you ignore a problem, the bigger it gets. (see: There’s no such thing as a Dragon, by Jack Kent).

    Conversely, once you start, the repair work is usually easier than you imagine. The public is not stupid and not unreasonable, and because it has a vested interest in the solution, can be relied upon – I believe – to respond productively if the real issue of public confidence – as opposed to window dressing – is being addressed.

    December 9, 2015 at 9:00 pm
  • sudokutea Reply

    My goodness I thought Australia would never happen in Ontario – but “BETTER JUSTICE TOGETHER” tries with a Bill to Protect Freedom of Expression, the Protection of Public Participation Act
    In a strategic lawsuit, commonly known as a SLAPP (Strategic Litigation Against Public Participation), a person or company uses the threat of a lengthy and expensive lawsuit as a way to intimidate an opponent, discouraging others from speaking out. Of course NO CROWN or Government body would EVER intimidate anyone…. read more hear
    https://madmimi.com/p/2c88a6
    Further reading will show you THE AG suggests intimidation of an opponent is unfair and undemocratic!
    Of course her Crown Attorney has informed me she is not a ‘person’ who can be charged criminally…???

    December 9, 2015 at 10:40 pm
    • Larry E Doucet Reply

      Our Canadian justice system is badly flawed because it only works where there a lot of money involved and is designed for the very rich this is what you called communism for the poor that are wrongly convicted,and if the judge is not held accountable in passing sentences where he know that the poor is wrongfully convicted simply because he or she got no money this is a crime by the judge and everbody involved in the justice system.
      Of course they trying or are they want the judged to be immune from prosecution because the laws are made mostly by lawyers and drafted by lawyers to enrich their pockets this is why its communism and a one man judge should be abolish immediately and have a few jurors in our court room at all times or at least three people appointed at all times in our courthouses at all times to prevent the judges and all involved from wrongfully convicting innocent people like in my case which I will not explain at this time it’s a disgrace by the members af all people that were involved.

      January 2, 2016 at 1:08 pm
  • sandra olson Reply

    yes, the public is reasonable. it is reasonable to assume that our judicial system is accessable to all. it is not,
    it is reasonable for the public to trust in the honesty, and humanity of the judicial system and its servants. but they apparently have none. if anyone is interested in the repair work, the damage must stop, and the persons who continue the damage must be removed. if you have a position of trust, and violate that. it is the same as betraying the person who stands before you, over and over again. until the damage is stopped,, the blood will continue to flow. accountability is what makes us grow up. maybe it is now the judicial systems time to grow up

    December 10, 2015 at 12:21 am
  • Karin Litzcke Reply

    I think it’s also important to say that there is much that the judicial system does that does inspire confidence. It is almost because of the often stellar performance of judges that we have high expectations of judicial self-governance and handling of SRLs, perhaps. Whatever my frustrations and critiques, I would have a few nominees for a list of decisions (most not involving SRLs mind you) that make me say “THIS is what I think justice looks like.” I think if judges did open a two-way dialogue with the public, what they hear would not all be bad, and they might hear unexpected things about what is important to us. I suspect meeting the public’s expectations is well within judicial capacity (and yes, budgets), and that is what makes it frustrating when things keep happening that erode confidence or access.

    December 11, 2015 at 3:27 am
    • sandra olson Reply

      i cannot speak for everyone however for myself, I had high expectations of the judicial system because of our charter. and the fact that we have been told repeatedly that we have the right to access justice like EVERY OTHER PERSON. not just every other lawyer. and it seems to me, that if we only see the face of justice occasionally. then justice does not exist. it either is here for us all, or it is useless. the way the courts handled me, and a good many other self represented litigants is to get rid of us asap. never mind our rights to question and examine evidence that stands against us. why, with a good summary judgement, we will never have to go there. ridicule us, mock us for believing in honesty and transparency in our evidence laws, trust in the judges to insist on the whole process of honesty and transparency. all betrayed by our current sitting of judges. if you only get justice right now and again, you have no business in the job. self regulation in the judicial arena does not work. it does not work anywhere.

      December 11, 2015 at 7:39 pm
      • sudokutea Reply

        Join me – I am putting the system on trial. Criminal Prosecution of the Attorney General of Ontario. I am unrepresented. This is a private prosecution. Google: No one is above the law Ontario Attorney General

        December 13, 2015 at 10:47 pm
    • Larry E Doucet Reply

      I like to know where did Cansdians citizens voted for a one man judge what the reason for a one man judge I know for a fact they do there dare of crooked work as a lawyer but they never get caught like making people sign documents when they got alzimers dementia,name it the do it I see it and powers of attorneys people that don’t no what there signing.this is why you need more than one person present all all trials especially the poor like me whom was kick out of my own home by the lies of the RCMP and forcing me to go to out without a lawyer didn’t they have a field day they about a dozen on there side lying for two days and an experience judge and crown prosecuter never said nothing all held in secrecy just because they wanted the money of my little pension I say in the range of 10,000$ here where I live the going rate for being sober up and not found guilty was 7,000$ and now I heard from this last one 10,000$dollars who get to keep this money is it in brown envelopes like the rest of our politicians We Need More That The Judge In OUR COURTROOMS so innocent poor people won’t be convicted because of the wrong doing of other,most of them are the RCMP they don’t get punish for lying under oat he’s they don’t get charge for anything not even murder,I could have easily been exacuted by the RCMP breaking in my house four times,for what I know they taught. That I might have an unlock gun out of my gun case I’m not a murderer I called the RCMP for help quite a few times who would they help the crooks what on earth are we paying all this money to a bunch of subhuman people,that all they care is about money and using the taxpayer money to find innocent people guilty,our politicians know this but they don’t care ther getting well paid and waiting for that big fat pension to kick in,that all they care about,o and there life’s are not in danger the working poor life’s are just as a dirty jobs as theirs.DO SOMETHING

      December 11, 2015 at 8:01 pm
  • Why Robin Camp Must Be Removed from the Bench – NSRLP Reply

    […] had admitted to committing election fraud was exonerated and permitted to remain on the Bench: see https://representingyourselfcanada.com/2015/12/08/public-confidence-in-canadian-justice-a-rough-week), Chief Justice Derek Green of Newfoundland and Labrador wrote in his […]

    September 19, 2016 at 5:24 pm
  • sandra olson Reply

    no one is above the law?, please go to my youtube site, i have posted a letter i got from the attorney general of canada’s office,. or so it is claimed. i cannot verify this, as there is no name nor position posted on the letter,, no one wants to take responsibility for it. just punch in sandra olson dna errors fraud, i should come right up. i did try to sue the attorney generals of BC, the courts wiped the floor with me. and then barred me from access to the courts ever again,. i have had my constitutional rights to justice stripped from me for saying the attorney general was not doing the job correctly. the slander i have endured from them is also legendary. no end to it. no one in these government offices wants to take responsibility for their actions. soooo in comes the courts to rid them of us peskly opinionated members of the public., watch your back

    September 19, 2016 at 7:13 pm
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    […] had admitted to committing election fraud was exonerated and permitted to remain on the Bench: see https://representingyourselfcanada.com/2015/12/08/public-confidence-in-canadian-justice-a-rough-week), Chief Justice Derek Green of Newfoundland and Labrador in a remarkable dissent wrote about […]

    September 20, 2016 at 11:30 am

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