Judicial discipline needs more public input

Alberta Judge Robin Camp’s upcoming hearing concerning misconduct allegations will likely shine a spotlight on the judicial discipline system this fall, as the federal government looks to reform the process.

While Justice Canada has announced a consultation to examine how the process can be changed to deal with delays and significant costs that observers say have damaged the public’s confidence in the system, legal scholars say there is a pressing need to go beyond the reforms being discussed.

The changes discussed in the consultation paper consider giving the public more of a role in the process, but legal scholar Adam Dodek says the reforms need to make laypersons full members of the Canadian Judicial Council, which is responsible for overseeing the judicial discipline process.

 “They’re looking at much more tinkering than serious wholesale reform,” says Dodek, who is vice president of the Canadian Association for Legal Ethics — a nonprofit that submitted comments in the consultation.

In 2014, the CJC issued a paper discussing a number of potential reforms. The CJC then adopted changes after a consultation period, which included attempts to cut out duplication in the process and to include a member of the public on one of its panels. Justice Canada’s new consultation paper was released this summer, recognizing more needs to be done.

Dodek says the Canadian Association for Legal Ethics would like to see a “much broader reform of the Canadian Judicial Council and the discipline process than is currently envisioned in the consultation document, which we see as overly narrow.”

In its submission, CALE proposed four key recommendations that it urged the federal government to consider in any reforms.

The first of these was that the CJC should look at the way other self-regulating professions, such as lawyers, conduct disciplinary proceedings.

The other key recommendations included that members of the public, or laypersons, should be full members of the CJC and that they should be involved in all steps of the judicial discipline process.
Review panels must have one layperson, but the other committees in the process do not include members of the public.

“Ultimately, this is about public confidence in the administration of justice and representatives of the public are best positioned to speak for the public,” Dodek says.

Osgoode professor Allan Hutchinson says judges may be reticent to allow members of the public on to the CJC because of fears they will lose their independence, but they do not need to be.

“It doesn’t wave ’bye to independence because the judges can no longer exclusively discipline themselves,” he says.

“It shows a more mature system, which involves judges, of course, but allows other responsible parties to ensure they’re maintaining the standards they set for themselves.”

Hutchinson says opening up the process and making it more transparent would go a long way toward ensuring the public’s confidence in the system.

“Justice needs not only to be done but seen to be done. . . . If they want to continue to maintain the respect of Canadian society, they need to show that it’s not a closed shop they’re operating,” he says.

Observers say long, drawn-out inquiries into judicial conduct over the last decade have highlighted problems in the process.

“The main problems have been that they have been allowed to be bogged down in procedural issues and judicial reviews and that most of these inquiries go on for a number of years,” Dodek says.

“And that’s really in nobody’s best interest.”

Dodek says the process can be cumbersome for judges who are living under a cloud of allegations and hope to clear their name. Delays also do little to cement the public’s confidence in such a system, he says.

Camp’s disciplinary hearings will begin in September and will concern allegations he made inappropriate comments during a sexual assault case in 2014.

Legal observers say his trial will likely highlight the process as others have.

“Every hearing that comes up exposes different problems in the process,” Dodek says.

“They all tend to expose the problem of how long and cumbersome these inquiries have become, but different problems arise in different challenges. I’m sure the Camp inquiry will raise different challenges.”