Squaring judicial independence with the need for accountability for judges who go seriously astray has never been easy.
Section 99 of the Constitution Act states that superior court judges may only be removed on a joint address to the Senate and House of Commons.
Fortunately, it has been invoked only once in the case of Justice Leo Landreville of the Ontario High Court.
He resigned in 1967 before the process was complete.
Bill Kaplan’s account of the proceedings, Bad Judgment, remains my favourite of all of his books with its combination of literary flair and scholarly rigour.
The mere threat of removal, however, can lead to a resignation, as happened in 2008 in the case of justice Paul Cosgrove of the Ontario Superior Court.
In the former British North American colonies and elsewhere in the empire, judges were generally appointed at pleasure.
The guarantees of the Act of Settlement 1701 — good behaviour appointments and removal only on a joint address to Parliament — didn’t apply to the colonies.
John McLaren’s recent book Dewigged, Bothered, & Bewildered: British Colonial Judges on Trial, 1800-1900, provides a fascinating account of how the colonial office exercised its disciplinary authority over judges who were appointed at pleasure.
There were two routes to removal. A colonial governor could suspend a judge for cause subject to review by the imperial authorities and appeal to the Privy Council.
Alternatively, a colonial assembly might petition the council directly. It then exercised an original jurisdiction to rule on the case.
McLaren only briefly examines those judges who got into trouble for incompetence or character defects. Rather, he’s interested in those who became overly involved in colonial politics or “whose views on law and justice became a political embarrassment.”
In those parts of the empire dependent on slave or indentured labour, for example, judges with any ethical sense could easily fall into this category.
In the white settler colonies, other issues arose that often centred on inappropriate political activity. The cases of two early 19th-century Ontario judges, Robert Thorpe and John Willis, are illustrative.
Both had valid critiques to make of the local government but did so in an intemperate and self-aggrandizing way.
“I expected that the avarice and imbecility of our [Upper Canadian] government would be highly injurious, but it has far surpassed my fears,” Thorpe reported disdainfully to the colonial office.
The only trouble was that the pre-responsible government constitution didn’t impose many restraints on the executive. When push came to shove, the judge was more likely to lose his job than the governor.
Thus, when Thorpe successfully ran for a seat in the legislative assembly in 1807 (which wasn’t forbidden at the time) and made clear his intention to act as de facto leader of the opposition, it didn’t take long for the governor to remove him with London’s blessing.
Willis also supported a group of reformers who wished to expose the overly cosy relationship between the judiciary and executive.
His concerns weren’t unfounded, but it was his intransigence over the issue of what was a quorum in the Court of King’s Bench that sealed his fate. He was adamant that the court’s statute required a three-judge quorum, whereas a practice had developed of two judges sitting in certain matters.
The latter position was at least arguable on the wording of the statute, and Willis’ stance meant that many past decisions were possibly invalid.
The governor couldn’t tolerate the entire judicial system coming under a cloud and removed Willis in 1828. His appeal to the Privy Council was unsuccessful.
But the firings of Thorpe and Willis weren’t the end of their careers. Thorpe went to Sierra Leone and Willis to New South Wales, but both had the dubious distinction of being removed from office a second time when they again ran afoul of the local governor.
They didn’t get a third chance.
Willis’ case at least had one salutary result. In 1834, the assembly passed an act providing for good behaviour appointments in the future with a joint address procedure for removal and an ultimate appeal to the Privy Council. It was the direct ancestor of today’s s. 99.
Philip Girard is a legal historian and professor at Dalhousie University’s Schulich School of Law who’s currently teaching at Osgoode Hall Law School. He’s also associate editor at the Osgoode Society for Canadian Legal History. His e-mail address is [email protected].
