Canadian Judicial Council

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One of the cornerstones of any liberal democracy is a judiciary that is independent, fair, and free from bias. Unfortunately, judges are human beings and therefore vulnerable to having the same prejudices many of us have.

An ideal government will name judges that can separate their own preconceptions from what is fundamentally right and legal in rendering their decisions. Unfortunately, this is not what happened in the case of former Alberta judge Robin Camp, and it is clearly not what happened in the case of Judge Eliana Marengo.

Her story is one that shows the dangers of aggressive Quebec Islamaphobia and racism masquerading as legal secularism.

In February 2015, Rania El-Alloul went to court to get her car back after it had been seized by the SAAQ. The issue was a simple one, but Judge Marengo turned a molehill into a mountain by refusing to hear El-Alloul’s case unless she took off her headscarf, inappropriately comparing the hijab to hats and sunglasses which are not permitted in court.

El-Alloul was not wearing a headscarf. She was wearing a hijab mandated by her faith, which she politely told the judge. Judge Marengo in a recording of the proceedings said that the court is a secular space, mentioning that there is no cross on the wall of the courtroom. She then reprimanded El-Alloul, refusing to hear her case because she was “not suitably dressed” as per the regulations of the Court of Quebec.

As there is no record of Judge Marengo denying others their day in court due to them wearing visible crosses, clergy collars, or a kipa, it is most likely she refused El-Alloul because she is Muslim.

Judge Marengo gave El-Alloul two options, she could take off her “headscarf” or request a postponement and consult a lawyer. El-Alloul refused to remove it and thus far, her case has yet to be heard.

When the story broke, numerous complaints were made to the Quebec Conseil de la Magistrature (“the Council”), the organization responsible for disciplining provincially appointed judges in Quebec. The complaints came not just from El-Alloul herself, but from many others unrelated to the case who felt the judge’s conduct was inappropriate of her high office.

Prime Justin Trudeau expressed his disapproval of Marengo on Twitter, saying:

In February 2016, the Council decided to form a committee to investigate Judge Marengo’s conduct. Marengo, for her part, tried to block the investigation into her conduct by challenging the legitimacy of the Council itself. She claimed that the refusal to hear El-Alloul amounted to a judicial decision that must be addressed in an appeal and that to investigate her via the Council would be a violation of judicial independence.

Fortunately, the Superior Court of Quebec sided with Council the following year. Marengo appealed the decision but the Quebec Court of Appeal agreed with the Superior Court.

An investigation into Judge Marengo’s conduct is now underway or will be soon.

How exactly does the Quebec Conseil de la Magistrature work?

It’s a lot like the Canadian Judicial Council responsible for investigating federal judges.

In addition to administrative duties and a general responsibility to improve the justice system in the province, the Quebec Conseil de la Magistrature is responsible for investigating the conduct of judges sitting on the Court of Quebec, the Professions Tribunal, and the Human Rights Tribunal. It has 16 members consisting of eleven judges, one justice of the peace, two lawyers, and two members of the general public.

They generally conduct investigations in response to complaints filed with them. Complaints to the Quebec Council can be filed online via their website.

Like their federal counterpart, the Conseil cannot overturn judicial decisions or verdicts as those have to go through the appeals process. All the Quebec Council can do is reprimand a judge or in the worst cases, recommend to the government that the judge be removed from the bench. In their investigations, the Council must consider the Judicial Code of Ethics, a set of rules governing the behavior of judges in Quebec.

Judge Marengo will likely be investigated with regards to whether her conduct violated articles two and eight of the Judicial Code of Ethics which have been used to reprimand the racist behavior of judges in the past. They read as follows:

  • 2. The judge should perform the duties of his office with integrity, dignity and honour.
  • 8. In public, the judge should act in a reserved, serene and courteous manner.”

Judge Eliana Marengo’s behavior towards Rania El-Alloul was unacceptable. Not only did it deny an innocent woman her day in court, but it is also against the values of diversity and freedom from discrimination Quebec supposedly embraces.

Here’s hoping the Council agrees.

* Featured image of the Palais de Justice in Montreal by Jeangagnon via Wikimedia Commons

CultureLaw

On November 29, 2016, the Canadian Judicial Council (CJC) made the recommendation women across Canada were hoping for. They recommended that Justice Robin Camp, the Alberta judge who acquitted a rapist in 2015 after making comments to the victim during the trial such as “Why couldn’t you just keep your knees together?” be removed from office. In their inquiry report, the CJC found that Camp had made comments that suggested an aversion to laws enacted to protect the vulnerable and promote equality, and that the damage he’d done to people’s faith in our judicial system could not be fixed by sensitivity training and promises to reform after the fact.

This article, however, is not about Robin Camp. There is no disputing that Camp’s conduct during this trial revealed him to be wholly unfit to be a judge in a society where gender equality is constitutionally guaranteed and that a recommendation for removal from the bench is him getting off light in the eyes of many victims of sexual assault.

This article is about the judiciary, the Canadian Judicial Council, and the process by which Canadians hold federal judges accountable for their behavior on the bench.

Removing a Judge

One of the tenets of democracy is the existence of an independent judiciary. For the judicial system to work it must act independently of the influences of the executive and legislative branches of government, as embodied in Canada by the Prime Minister and his cabinet and the House of Commons and Senate.

The way our founders attempted to ensure this independence was by putting rules in our constitution that require that judges be appointed not elected, and once appointed, they get to keep their position “on good behavior” until the age of retirement.

Before the creation of the Canadian Judicial Council in 1971, the only way to get a federally appointed judge removed from the bench was to have the government recommend his removal to the House of Commons and Senate. That all changed in the late sixties with the Leo Landreville scandal.

Leo Landreville was a former Sudbury mayor who’d been appointed to the Supreme Court of Ontario. While he was mayor, he got involved in some shady stock dealings that came to light while he was a judge and led to criminal charges including corruption. The ensuing scandal prompted Lester B. Pearson to recommend his removal from the bench to Parliament in 1967, and was one of the events to spark the creation of the CJC.

The Canadian Judicial Council

The Canadian Judicial Council was created with the goal of promoting efficiency, uniformity, and accountability in Canada’s Judicial System. It consists of thirty-nine members and is led by the Chief Justice of Canada’s Supreme Court, currently the Right Honourable Beverly McLachlin. The Council meets twice a year and while their primary responsibility is to set policies and create tools that allow the judicial system to work better, it has the added task of investigating complaints against judges.

The Council can only investigate complaints against federally appointed judges. They cannot investigate or overturn a judge’s decision in a case. To get a judge’s decision overturned, you have to go through the appeals courts. What the CJC can do is investigate a judge’s conduct, but to get them to do that, you have to follow the complaint process.

As per the Judges Act, the CJC must start an inquiry of a federal judge upon request by the federal justice minister or the attorney general of a given province. The Council can also choose to investigate any other complaints or allegations made against a judge. In the case of Robin Camp, for example, the complaint was initially made by four law professors.

Unlike many other government applications, a complaint to the CJC does not require specific forms, there is no application fee and no deadline. All you do is submit a complaint in writing about a named federally-appointed judge about their conduct and not their decision(s) via snail mail.

The Canadian Judicial Council then reviews the complaint and where necessary, conducts an inquiry and releases a report. In the report they can recommend that the judge remain on the bench, be removed from the bench, be granted paid leave, or if the judge resigns before the age of mandatory retirement, the Council can recommend they continue to get an annuity.

If the Council recommends the judge’s removal, the Federal government can then go to the House of Commons and Senate within fifteen days of the removal recommendation and publicly remove the person from office. Federal judges can only be removed for the following reasons:

  • Age or infirmity
  • Having been guilty of misconduct
  • Having failed in the due execution of that office
  • Having been placed, by his or her conduct or otherwise, in a position incompatible with the due execution of that office

Justice Camp was recommended for removal from the bench for misconduct and the fact that it happened during a rape trial amplified the magnitude of his actions. Rape trials are widely and justifiably believed to be tainted by bias and prejudice so the appearance of impartiality and fairness in the presiding judge is extremely important.

A judge who seems to favor one side over the other from the get-go damages society’s faith in the fairness of our judicial system, and a lack of faith in the law and the people who interpret and enforce it will ultimately lead to vigilantism and anarchy.

The Canadian Judicial Council is an important check on federal judges who may take for granted that their jobs are secure in order to ensure their independence. It’s important but it’s not perfect.

Since its creation only four judges have been recommended for removal by the Council in recognition that judges need freedom to criticize the law, talk to witnesses and lawyers, and conduct proceedings in order to make sure justice is served.