In a commentary in The Lawyers Weekly, Prof. Jacob Ziegel argues that the Canadian Judicial Council’s inquiry procedures are unacceptably cumbersome ("There are better ways to investigate judicial conduct," Nov. 2, 2012). The full commentary is republished below.
There are better ways to investigate judicial conduct
Jacob Ziegel
In May, an inquiry committee established by the Canadian Judicial Council began hearings on allegations by Alex Chapman that, in 2003, while she was still a practising lawyer, now Manitoba Court of Queen’s Bench (Family Division) Associate Chief Justice Lori Douglas and her husband, Jack King, had sexually harassed him.
Among other allegations, Chapman said King had invited him to have sex with his wife and directed him to a website where King had posted sexually explicit photos of her — photos the judge says were posted without her knowledge or consent. Both King and the judge vigorously deny that she knew of, or participated, in King’s behaviour toward Chapman.
King was a key witness at the hearing and was rigorously cross-examined by George Macintosh, the inquiry committee’s counsel. Sheila Block, counsel for Justice Douglas, strenuously objected that the cross-examination was unfair and biased, and was more designed to compromise the judge than to ascertain the true facts.
On July 27, the inquiry committee rejected Block’s objections and insisted that counsel was only doing his job.
On Aug. 20 the inquiry committee released a 21-page single-spaced opinion reiterating its earlier position and insisting that the role of a public inquiry is inherently different from a regular trial, where the judge basically remains passive and listens to the evidence and arguments adduced by the parties. In a public inquiry, the opinion argued, the role of the commissioner or inquiry committee, and its counsel, is to ascertain the facts and to play an active role in realizing this goal. They are not just passive listeners.
Block remained unconvinced. On the same day as the committee released its written opinion, she filed an application in the Federal Court to quash the inquiry on the grounds that the inquiry committee appeared to be biased. Ominously, Guy Pratte, the distinguished Ottawa litigator the judicial counsel hired to be the committee’s independent counsel, also filed his own application in the Federal Court to restrain Macintosh and the committee’s questioning of witnesses on the grounds that it posed a “risk of an appearance of bias.” A week later Pratte resigned, without stating publicly why.
Both applications have disturbing implications for Canada’s judicial system and, more particularly, for the credibility and integrity of the Canadian Judicial Council’s procedures for examining complaints about judicial conduct.
No less disturbing are the following likely future scenarios.
The inquiry committee in the hearing has five members, three of whom are provincial chief justices in their respective provinces (Alberta, Newfoundland and Prince Edward Island); the other two members of the committee are practising members of the Canadian bar. The hearing before the Federal Court will be conducted by a single judge, who will therefore be sitting in judgment on the conduct of three judges ranking much higher in seniority to the hearing judge.
The anomalies do not stop there. Whichever way the hearing judge decides, almost certainly there will be an appeal to the Federal Court of Appeal and, if leave is granted, from its decision to the Supreme Court of Canada. As a result, it could be at least two years before we learn whether the inquiry can continue or whether a new inquiry committee will have to be struck by the Canadian Judicial Council, assuming the council still decides to proceed.
Meanwhile, Justice Douglas has had to recuse herself as a sitting judge while still, quite legitimately, drawing her full salary and other emoluments but not knowing whether or when she will be allowed to resume her judicial career. It is also safe to assume that millions of dollars will have been spent on the inquiry and related judicial proceedings with likely modest results under even the most favourable circumstances.
The overriding lesson of the saga is that the Canadian Judicial Council’s inquiry procedures are unacceptably cumbersome and expensive. We have much to learn from the far more efficient and effective British system for handling complaints about judicial conduct. In England, an independent office was established in 2006 with its own modest staff to receive complaints about judicial conduct at all court levels for England and Wales. Since then the office has been handling more than 1,000 complaints a year. Very few have required an independent inquiry. So far there have been no public inquiries.
Yet another, no less important, lesson is that the need for an after-the-event inquiry about the appropriateness of Justice Douglas’ appointment might never have arisen if Canada had a truly objective, professionally conducted and merit-based system for the appointment of federal judges. Chapman’s allegations about the misconduct by King and his wife would have been fully investigated at that time and, either accepted or rejected but not left in a twilight zone, as appears to have happened. The public inquiry may have provided great fodder for the media but it has done little to enhance Canada’s judicial image elsewhere.
Jacob Ziegel is a professor of law, emeritus, at the University of Toronto.
