This week’s guest blogger is Chris Budgell, who has had considerable experience as an SRL before numerous justice agencies. Chris was once described by the late journalist Christie Blatchford as, “a self-appointed citizen watchdog of the judicial council”.
On May 21st a Federal Court justice delivered a decision in the case Smith v. Canada (Attorney General), 2020 FC 629. There was considerable media commentary, including this article by the Globe and Mail’s Sean Fine. (I also recommend this article on slaw.ca.) But so far none of this commentary does justice to the significance of this case.
The decision states that the Canadian Judicial Council (CJC) acted abusively in triggering its disciplinary processes against Justice Patrick Smith of Ontario’s Superior Court of Justice without having received a complaint, and despite the lengths to which Justice Smith had gone to secure approval – from the court’s chief justice and the federal Minister of Justice – to take on a temporary assignment acting in a limited role as Dean of the Laskin Law School at Lakehead University.
The real significance of this won’t be apparent to most Canadians, including I suspect most SRLs, because there has been little public awareness of what the CJC is.
What is the CJC?
“The Three Judges”, by Daumier
The Canadian Judicial Council is a unique entity, created by Parliament in 1971 with an extensive addition to the Judges Act. The Judges Act governs the courts whose judges are appointed by the federal government (in practice, the Prime Minister has the final say). Those are the two “superior” courts in each province and territory (one “trial level” court and one appeal court) and five courts (including the Supreme Court of Canada) that have national jurisdiction, and usually sit in Ottawa. Scroll down here to see all these courts listed. This is the list of the membership of the Canadian Judicial Council.
Prior to the 1971 legislation, there was evidently little interest in what should be done if it became apparent that a judge was, or might have become, unfit for office. But then the superior court judges across Canada began to develop such an interest, a development largely driven by Wilbur Roy Jackett. The book Chief Justice W.R. Jacket: By the Law of the Land, by Richard Pound, includes a chapter on the creation of the Canadian Judicial Council. It’s a very interesting story. Jackett later became the first Chief Justice of the Federal Court – the Court that issued this recent judgment condemning the conduct of the CJC. It’s interesting to ask what W.R. Jackett would have made of the current situation.
The CJC wasn’t granted the power to remove judges in the 1971 legislation. Parliament absolved itself of most of the responsibility for dealing with judicial conduct issues, but ultimately retained the authority and responsibility for removing a judge. After even the most lengthy and drawn out processes at the CJC, all the Council can do is forward its final recommendation to the government (that is, the Justice Minister). The Judges Act does not prevent the government from putting before Parliament a motion to remove a judge even without hearing from the CJC. Nor does it prevent any citizen from submitting a complaint to the Justice Minister or any member of Parliament. But if you do so, they’ll simply direct you to the CJC.
A dismal record
So since 1971 the CJC has been receiving public complaints about individual judges. Those who are familiar with the record know that it is not an encouraging one. Since the beginning of this century there have been some spectacular demonstrations of just how dysfunctional the CJC’s processes are – two good examples are the case of Associate Chief Justice Lori Douglas, who eventually give up the fight and agreed to retire, and the debacle of the Justice Robin Camp inquiry, which eventually led to his resignation, after a protracted battle.
Going back to the recent Smith case, Federal Court Justice Zinn’s 184-paragraph decision may signal the end of the CJC as the entity with the exclusive mandate to receive and dispose of complaints about the conduct of federally appointed judges. Parliament has the option to create an entity fully independent from both the judiciary and the executive branch to receive complaints and decide how to respond to them (including, of course, steps that would likely involve members of the judiciary). In my opinion, this is the right solution. It always has been.
Fundamental problems with the CJC have always been evident. Judges judging judges doesn’t work. And the Smith judgement itself is another instance of a judge judging judges (for a rather amusing take on that see Ezra Levant’s rant, not someone I usually quote with approval, here). However it is worth noting that the Federal Court did not accept the CJC’s argument that its members – federally appointed chief and associate chief justices – are acting “judicially” in conducting disciplinary processes at the CJC and hence beyond criticism.
The CJC has always been an opaque entity. There has been talk about being transparent and engaging the public, but little evidence of this in practice. The CJC’s website has gone through more than one redesign since I first engaged the Council in 2010, and each new iteration seems to provide less information, and in a manner that makes it increasingly hard to find what one is looking for.
Public voices?
In 2015, following years of discussion about giving the public a voice in the disciplinary process, the Council, on its own, decided that one “layperson” would be added to the membership of what they call their “Review Panels”, one of the steps in the process of deciding whether or not the Council will recommend to parliament that a judge should be removed. That caught my attention. I had more than enough experience to understand that the Council wasn’t the least bit interested in giving the public a voice in its processes.
Omar Ha-Redeye’s article on slaw.ca includes this link to another review panel decision. As with the first such panel decision, this one identifies, on the final page, all the members of the panel, including the person intended to be a voice for the public – who is a former federal public servant (as described by this Lawyer’s Daily’s article). It’s hard to believe that the CJC is interested in truly outside voices, or any dissenting opinions, and there has never been a dissent in any of these Review Panel decisions. So why bother with a multi-member panel at all?
In this news release the chair of the CJC has said that the CJC understands that “vital legislative changes” it has urged on the government “are imminent”. What changes? Does anyone other than Justice Minister Lametti, or whoever he’s designated to negotiate with the CJC, know? Do any of the Opposition members know? Any Senators? Certainly we the public have had no warning of what these changes might be. I doubt that anything is in fact imminent. I certainly hope not. Let’s see some transparency first – from the government and from the judiciary. My own MP as well as other MPs and Senators have heard from me about these issues. They are all easily reached by email. I urge everyone to do the same.
my experience with the CJC has proven how insular, and self serving they are. It was a waste of my precious time. I imagine everyone else who wrote to this organization went through the same, As to legal organizations generally, I cannot say any of them are different. insular and self serving is really it. We allowed this organization to run the organization of our courts, This should never have happened.
Procedural fairness is the key.
I went to trial against 2 lawyers, their pal the OCL and the same judge that heard my motion the week before and adjourned it to himself. They couldn’t beat me in trial, I was just too professional and child-focused. I nailed the cross-examination and the women in the room were like wow Matlock on the break. I had no clue what was coming.
The judge made an order after trial that was open to interpretation and then 2 months later he emailed his reasons for judgement holding me in contempt for something that I didn’t do, by calling it a material change. Meanwhile, I did nothing and had the evidence, yet I was never provided my right to be heard.
It didn’t matter. Rules don’t matter and our children suffer while they all get paid. It’s a business, stay strong.
I figured out how to do my own appeal too, it’s hard with highly complex thinking involved. I’m going with procedural fairness I guess, but this really sucks so bad.
How can someone prepare, or defend a case that’s issues changed after the trial was over? Apparently I have the right to be heard, uh helloooo Canadian Judicial Council? They are great at leaving evidence though.
The CJC opened and closed my file 3x and based on my data, they have hundreds of complaints each month and it’s on a 3 month loop. No one is reading our complaints, I’ve tested it just to make sure that my evidence of them breaking their mandate is collected. “Always collect an audit trail” my dad says. He’s right. Good luck and stay well my fellow abused self-reps.
Thank you for your hard work and sharing. The only travesty is if we behave angrily and unreasonably. More people know so carry on. It will work.
The cjc has stated to me that judges have the right to accept or reject any evidence up to and including their own transcripts. They can even call evidence themselves to refute the transcript of trial. Of course with this power the cjc and judges can refute anything as no evidence is better than their opinion. Of course see our charter of rights, fundamental justice and arbitrary justice. Broken.
Some years ago I too was an avid SRL, ultimately filing a Summary Judgment at my local BC Ministry of Justice, indicating a local Judge had explicitly erred in her assessment of the rules of law by dismissing my claims (did not like this SRL’s poking at their privilege.) Understandably, judges can not be sued! BUT then WHO is responsible? In a Supreme Court setting – with only the Supreme Court Judge and his fellow Defense Counsel , sitting lower, at my eye level, I spent an hour plus being told I was wasting the Court’s Time.
– Having purchased the transcript of the session, it reads like a PLAY!
In any seriously considered DEMOCRACY….(where?) … the above scenario would be considered a most outrageous and blatant example of COLLUSION!
Where I consider the USA to be a primarily > POLICE run STATE, I suggest our Canada is primarily a quietly, but solidly run LEGAL SYSTEM run ‘quasi Democracy’.
After my informative/telling court session, my view is: At the base of all societies runs its legal system in which most are hands on police based …..And IF/WHEN it is corrupt? > every other Department within that structure will be so as well!
Since Legal Systems purvey naturally throughout al our systems (SURVIVAL OF THE FITTEST) > other then Religious stipulations, most our present day systems are run as such.
However, I have been suffering “the slings and arrows of outrageous fortune” Online these daze :(> …
There is a whole new ‘BIG BROTHER’ a foot, and it is the Wild-West of catch-as-catch-can ONLINE!
BUYER BE WARE!
Ultimately life continues to be about : Survival of the Fittest!
Keep up the good work!!
We should not be seeking to get on Judicial Council. That is pointless. It would be one against a gang so we would be out numbered and serve no purpose. We should demand to be told when any judge before whom we appear and any lawyer against whom we appeared is seeking to become judge or in the case of judges if they seek any other or higher office so we can make submissions about the crooked ones and stop them from getting appointed. Currently the law society alone has a say in appointment of judges. Go figure
Judge’s get really mad at us for proving our case in court so I am offended when told the problem is our inability to do that. Many lawyers do horribly-but usually the court props up their cases for them. No one is listening to us let alone hearing us. Until we become a properly functional organisational force the CJC will not regard us as parties with rights. There is a way they have to (MUST) hear a complaint.
You are right rules do not matter nor does the law. Many decisions make no sense. A panel of three (not one, not two) “judges’ said since the Labour Board (OLRB) decision is reasonable it does not breach my employment contract.. How ridiculous! The decisions is contingent upon the contract not the other way around. The decision breached 10 clauses of my contract and counting. One clause stops them from getting off the ground but they just trampled that and got going anyways. When I convinced the court they had the wrong timeline (scared the bejesus out of all of them and stunned them) they just supplanted other September incidents in their October 6 to Novemeber 2, 2016 “critical” and “crucial” timeline (they even said OLRB gave no date but they made them 24 to 26). So by magic the 3 judges decided to make up a new timeline so that July, August and September are months that fall between October and November. They even ruled (literally) that I should suffer harshest punishment-termination for not joining in the theft from my employer or allow others to take it as they liked though I am responsible for the funds. The decision is an embarrassment (to them)-not one paragraph is a fact. At appropriate time It will be public .
I’m sorry to hear this and I would also love to know how to get our stories to the public. Did you have any luck? We should be pushing towards a new type of discrimination (the legally unrepresented)
Cjc claim that judges have the right to weigh evidence up to and including official transcript of trial. There is no better evidence than the transcript of trial. It is a judges duty to accept the transcript of trial as highest form of evidence otherwise our system of appeal is broken as well as charter of rights and fundamental justice as justice is completely arbitrary. Completely broken.
Five days after this post was published here, the Globe & Mail published an opinion piece written by Patrick Smith’s counsel. The link is here – https://www.theglobeandmail.com/opinion/article-judges-need-access-to-justice-too-or-we-risk-public-confidence-in/. Had they already read what was posted here? I think that is likely.
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It would appear that those lawyers have some information the public does not have. But they don’t suggest any solution to the problem presented by the CJC. All they suggest is that “parliament should decline” to implement the changes to the Judges Act that the CJC is apparently seeking.
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I note in the next paragraph this statement: “. . . the pattern of the council’s conduct . . . raises the question of whether its abusive decision making . . . was . . . the product of a problematic culture at the council.”. That’s what is called a rhetorical question.
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The culture at the CJC cannot be fixed. The solution of course won’t include defunding the CJC. Our parliamentarians won’t entertain that idea. But the funding of the new agency that I’m proposing ought to be substantially, if not entirely, balanced by reducing the funds that the CJC receives.
Trevor agree with your comment. However, what happens if one does not receive a “recorded verbatim” transcript? in other words a “word for word transcript”. Let’s be honest here, the judiciary are part of the transcript production process. Some judiciary cannot refrain from “editing” the court transcript before the court transcript is released to the public. How can “integrity of the record” be achieved when this occurs? Editing of a court transcript by a member of the judiciary is “unconscionable” and totally preempts one’s ability to bring forward a proper appeal of a legal matter. Judiciary need to be removed from the “transcript production process”. Independence of the judiciary does not result when court transcripts are edited. The editing implies that the judiciary have taken a side in the legal matter.
We’ve had three people here already comment about transcripts.
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Besides being a witness in a labour arbitration regarding my own employment dismissal grievance, where, in keeping with the convention, no recording was made, I’ve been an SRL in two hearings before Provincial Court judges, several before B.C. Supreme Court judges and two before B.C. Court of Appeal judges, and to this day I still don’t know what the rules say, what one should expect, about recordings and transcripts. This is an important topic and I think it could be fully explained without resorting to any legalese. There should be, I suggest, a basic set of rules / protocols that apply to all adjudicative forums.
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My own experience includes getting a transcript on only one occasion – when I was appealing in the B.C. Supreme Court a decision of a Provincial Court judge. I recall paying a private firm to make the transcription from the audio recording held by the court. I don’t recall if a copy of the audio recording was released to me, or if the court itself sent the recording to the firm. Given what I had heard from other SRL’s about transcripts I wondered about that firm.
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Have I missed it? Is there a comprehensive explanation somewhere?
Chris, when the legal system has taken advantage of a self-represented litigant, one lives and learns.
Unfortunately by not focusing on the accuracy of your transcripts, you may have missed something significant.
As a self-represented litigant, it is next to impossible to get a copy of the audio recording to compare to the issued transcript.l.
I can only speak for Ontario but The Court Reporting industry is not a regulated industry here and there should be a significant movement afoot to have court reporters regulated as court reporters fulfill a very significant function and like with any other profession, professional ethics and professional integrity are important components of the court reporters functions.
The court reporter in attendance at your court hearing may not be the court reporter that transcribes your transcript. One should compare their notes of the court appearance to the words within the certified transcript and where differences are noted, one should follow up.
Judiciary need to be called out on this. If you or I did this, we would be guilty of a crime. Why is this ok for a member of the judiciary to do.
this? It blows me away that in family law setting , where the best interest of a child is at stake, that In a family law setting, where the best inter judiciary could actually do this, but they do.
This is the biggest concern that I have with the CJC. As you say, how can judges judge other judges? Would the CJC actually come down hard on a “recorded verbatim” issue within a court transcript or would they instead target the blame on the court reporter instead of targeting the blame on the member of the judiciary.
To those that don’t realize this, this is a huge “public interest” issue.
I admit that I didn’t do the full research on this issue that was warranted at the time.
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My understanding was and remains that the person sitting in front of the bench simply ensures that everything is recorded on an electronic medium. That would have been an analogue recording on tape until they switched to digital recording – on what physical medium I’m not sure. But my recollection was that on the one occasion that I got a transcript, the audio recording was provided to the outside firm – the entity I paid – on a CD. Maybe they even gave me that CD to deliver to the firm. I don’t recall now.
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What happens after that? Someone employed by the firm creates a transcript. Is it then sent back to the court so the judge can review it? That would suggest that the judge might be able to request deletions or other changes. I didn’t make notes when I was going through this process. Maybe my understanding is not correct. Years ago I heard from other people that transcripts were being altered. I kind of doubted that at the time. If so I would guess the judiciary has since put a stop to it.
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I don’t know anything about these technologies like Zoom. Would that not make it possible for any participant to record everything said by everyone?
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I don’t want to spend too much time talking about this issue here, as I think there’s a lot more to be said and understood about the CJC, which cannot simply drift along in its current state for much longer. Everyone should be aware of the Michel Girouard case and what will happen if he reaches the ten year mark since his appointment, still suspended with pay. Then he’ll be able to retire with a pension for life. That will be on September 30.
Very well articulated, Ari. Justice must not only be done but also appear to be done. Further given the current technology, justice must be recorded properly in public courts so as to sound and read to be done…by any fifth-grader. Judges ought to be free to review the record, but never secretly to alter, only to annotate and append their interpretations publicly. Anything less might seem like turning off a body-cam when something nefarious is going down.
The Supreme Court of Canada has handed down a decision that has assisted me now in acquiring a deeper understanding of the powerful forces that are fighting access to justice. I would encourage everyone who reads this to do some research. I’ve just found the website of the International Chamber of Commerce, based in Paris – iccwbo.org/about-us. The entry on Wikipedia may also be useful. The SCC judgment – http://www.canlii.org/en/ca/scc/doc/2020/2020scc16/2020scc16.html – is one the media seems to be saying has given a little bit of justice to Uber drivers in Canada, but their fight is far from over.
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Few of us are going to try to read and understand all of that, but I suggest taking note of the fact that one of the eighteen parties listed as interveners is Arbitration Place. These arbitrators – http://www.arbitrationplace.com/arbitrators – include the former Chief Justice of Canada and three other former SCC judges. Why are these people intervening in this case? I’ve just found this factum – http://www.scc-csc.ca/WebDocuments-DocumentsWeb/38534/FM070_Intervener_Arbitration-Place.pdf – that may offer an answer.
I want to note something only indirectly connected to the Canadian Judicial Council issues. I’ve spoken before, including on the NSRLP, about the issue of judges engaging with select (i.e. privileged) communities, most notably giving speeches at functions the public never hears about.
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I commented about that here last November 14 in this discussion: https://representingyourselfcanada.com/using-twitter-to-open-the-a2j-discussion/.
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Another opportunity presented itself a couple of days ago with this post on slaw.ca: http://www.slaw.ca/2020/07/26/balancing-transparency-and-independence-in-the-judiciary/. I think my comment was as clear and succinct a statement as one could make about this issue. I was a bit surprised when it elicited a reply from the author of the post, more surprised by his claim that I confirmed his position, and surprised again to note that he then immediately closed down the ability to submit any more comments. The site’s administrator told me that indeed these authors / contributors have the ability to do that, but I’d never noticed that happening before. I suspect that the fear was not just that I’d have something more to say, but that someone else in the slaw.ca community might express agreement with me.
As this blog post was about the CJC I want to note first that the CJC is in the news again with a remarkable story unfolding about the University of Toronto’s law school and a certain “sitting judge”. Also, next week Justice Michel Girouard, effectively suspended for the last seven or eight years with full pay, will qualify to retire with a pension for life (reported by one CBC article to be $155K p/a). I recommend monitoring the media to see how these stories play out.
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But I have something else to suggest. With my impaired hearing I don’t try to listen to any audio, including podcasts. I’d like to encourage anyone who reads this to listen to the podcast found here – https://www.lawsociety.bc.ca/our-initiatives/rule-of-law-and-lawyer-independence/rule-of-law-matters-podcast/ . I’ve just now found this and I’m going to read the transcript also linked to there.
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On many occasions I have concluded that certain actions appeared to be responses to emails that I’ve sent. On finding that podcast I checked my emails and found one entitled, “The problem with the claims of judicial independence and the rule of law”, that I sent to Jon Festinger on August 24. That’s the only email I’ve ever sent to him. So I think there is a reasonable likelihood that this podcast is a response to my email. I note that both he and Craig Ferris have something to say about engaging the public in a dialogue. So I’m looking for how they’ve enabled the public to contribute to this dialogue.
I just want to add to that prior post, that on the LSBC website there is now an Episode 2 added to the Rule of Law podcasts – https://www.lawsociety.bc.ca/our-initiatives/rule-of-law-and-lawyer-independence/rule-of-law-matters-podcast/ .
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I still see a link there to the transcript for Episode 1 but not one for Episode 2. However, I’ve found it here – https://www.lawsociety.bc.ca/our-initiatives/rule-of-law-and-lawyer-independence/rule-of-law-matters-podcast/what-is-the-rule-of-law-vs-rule-by-law/ .
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I want to encourage as many people as possible to read and listen to both of those podcasts. They reinforce my view that the Canadian legal establishment has a very serious problem with the notion of the rule of law and that the attention that has been increasingly given to it reflects a growing desperation and a concerted attempt to use it as a marketing tool. Coincidently I have just rediscovered a copy of a very insightful chapter included in a book published in 2018 – https://www.academia.edu/34848921/The_Rule_of_Law_as_a_Marketing_Tool_The_International_Criminal_Court_and_the_Brand_of_Global_Justice?email_work_card=view-paper . I cannot recommend it too highly. The author is focusing primarily on the International Criminal Court, but I think her criticism has far wider application.
Any complaint process that involves judges examining other judges would clearly be a questionable one.
It’s highly suspicious that the entire complaint process is automated and that the CJC simply close files without logic, law, or reasoning.
Who holds the CJC accountable? Who holds anyone accountable for that matter?
Canada’s judges don’t even have formal interviews, they’re just lawyers with 10+ years of experience.
The justice system is broken because no one is accountable. If the system has no proper complaint processes, then we are forced to take the law into our own, more capable hands.
An update on the CJC’s situation. September 30, the date on which Michel Girouard became eligible to retire with a pension, passed without any comment from the Canadian media. My guess is that they will comment on this case next when the SCC decides on his lawyers’ application for leave. Leave denied will be the signal for David Lametti to ask parliament to vote on a motion to have him removed from the bench. Maybe some MPs or senators would like to take the opportunity to say something about the process – eight years with Justice Girouard on full salary while enjoying effectively a vacation – that has set a record for CJC proceedings. But it’s unlikely that they’ll be presented with the opportunity because he will almost certainly invoke his right to retire first.
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Meanwhile the CJC is faced with another challenge that has unprecedented features in the complaint(s) about a judge – identified as Justice David E. Spiro of the Tax Court of Canada – who allegedly persuaded the Dean of Law at the U. of T. to “rescind” an offer of employment made to Valentina Azarova. There has been plenty of commentary, including on Twitter and by voices outside of Canada. But of the Canadian mainstream media only the Globe and Mail and the Toronto Star have reported on the story so far.
The Canadian Judicial Council is corrupt. I have waited over 6 months and have heard not a peep, except the empty promise to investigate Justice Ward Branch within 3 to 6 months. No forward movement to date. Look at my complaint if you want, as it will shock you. Thanks, (PS: I posted on your comment because it seems this thread for new comments is not active).
Should you eventually receive a reply to your complaint I hope you’ll share it with the public. You might never receive a reply. A review of the Judges Act – https://laws-lois.justice.gc.ca/eng/acts/j-1/ – and the Complaints Procedures – https://cjc-ccm.ca/sites/default/files/documents/2019/CJC-CCM-Procedures-2015_0.pdf – reveals that the CJC is not obliged to do anything with a complaint, except when an Attorney General asks for an inquiry. In the Act (Part II) notice the preference for “may” over “shall” or “must”. Look at the contrast between sections 63(1) and 63(2). (1) uses “shall”. (2) uses “may”, and may means “may, or may not”. So they are not legally obliged to do anything with a complaint except those coming from “the Minister or the attorney general of a province”. This is an example of how our governments construct statutes for which they make claims that don’t stand up when one simply reads the words. And all MPs and senators share in the blame. It demonstrates the chronic incompetence and disregard for the public interest of our elected and appointed legislators.
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In the Procedures (written by the CJC itself) look carefully at sections 4 and 5. What is the Executive Director obliged to do if he or she determines that a matter does not warrant consideration? Nothing whatsoever. Not even reply to the complainant. The last correspondence on official letterhead I received was this stupid reply – http://www.uncharted.ca/images/users/ssigurdur/201503_pub_reply_cjc_jcc_vice_chair.pdf – from Council member Robert Pidgeon. “Sorry for the delays.” I wrote to him because Norman Sabourin was ignoring me. And he continued to do so.
It is a year since this post was published. There has been a very recent development that I have reason to believe was prompted by an email I addressed to one of the CJC’s members and cc’d to the former member most recently identified as the “interim” or “acting” Executive Director.
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That response was announced in this Department of Justice news release – https://www.newswire.ca/news-releases/government-of-canada-introduces-legislation-to-foster-greater-confidence-in-the-judicial-system-876746703.html – to which the CJC itself responded here – https://cjc-ccm.ca/en/news/canadian-judicial-council-responds-proposed-government-reforms-judicial-discipline-process.
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I then sent an email, sharing my previous email, to Senator Gold and the other senate leaders and the Speaker. I would urge anyone reading this who has some interest and especially anyone who has some experience in deciphering statutory language to review the language presented in Bill S-5, found here – https://parl.ca/DocumentViewer/en/43-2/bill/S-5/first-reading. I haven’t thoroughly reviewed it myself yet, but I see problems, including what I take to be evidence that this was prepared in haste. I don’t think they began drafting it after I sent my email. Rather I think what they did was use something that had been sitting on the drafting board for a very long time. Perhaps it is also not a coincidence that petition e-3014 – https://petitions.ourcommons.ca/en/Petition/Details?Petition=e-3014 – will likely be presented to the House of Commons before the summer recess scheduled to begin in about three weeks.