Judicial hearings rare: Most complaints about judges never get to public hearing

Public hearings that consider whether a judge should be removed from the bench, such as the current one involving Federal Court Justice Robin Camp, are rare.

National council gets more than 150 complaints per year, most dismissed, handled behind closed doors

The majority of the 150 or more complaints about judges filed with the Canadian Judicial Council each get thrown out or dealt with in private. (CBC)

Public hearings that consider whether a judge should be removed from the bench, such as the current one involving Federal Court Justice Robin Camp, are rare.

The Canadian Judicial Council receives more than 150 complaints each year and the vast majority are either dismissed or dealt with behind closed doors.

The question of how to hold judges accountable and maintain faith in the justice system, while also respecting judicial independence, is an ongoing quandary. The process is still evolving 45 years after the council was established.

"We have to really balance a complex set of interests," says Karen Busby, a law professor at the University of Manitoba.

"Right now, we know little about what happens with the cases where ... it's not in the public interest to have a full public inquiry, but there needs to be some kind of accountability."

The inquiry into Camp, who asked a sexual assault complainant why she couldn't keep her knees together, is one of only 11 full-blown hearings by the council since its formation in 1971.

When the council receives a complaint, it decides whether it has jurisdiction to delve into the matter.

Complaints have to be about a judge's conduct — not a ruling. They can be dismissed if they are deemed trivial, vexatious or not in the public interest.

If the complaint is deemed worthy, it is reviewed by a member of the council's conduct committee, who may dismiss it or refer it higher up to a review panel. Remedial measures can also be sought, such as requiring a judge to apologize or take sensitivity training.

'Clumsy Don Juan'

The 2011 case of Manitoba Court of Queen's Bench Justice Robert Dewar was settled at the early stage. Dewar called a convicted rapist a clumsy Don Juan and made remarks about the victim's clothing.

The council said it was an isolated incident and Dewar apologized.

Protesters rallied outside the Manitoba Law Courts building in Winnipeg in February 2011 calling for Justice Robert Dewar to resign after Dewar said "sex was in the air" when he spared a man jail time by handing him a two-year conditional sentence. (CBC)

A complaint that makes it to a review panel faces further evaluation: Is the complaint serious enough that it might warrant removing a judge from the bench? If so, an inquiry is called that is open to the media and the public.

Federal and provincial justice ministers can also ask the council for an inquiry. That happened in 1990 with three Nova Scotia judges over the wrongful murder conviction of Donald Marshall Jr.

Full inquiries are rare for good reason, the council says.

"Judges have to be able to deliver sometimes unpopular decisions without fear of reprisals," says Johanna Laporte, the council's communications director.

"The notion of security of tenure and the judge being able to remain on the bench — they can't be removed easily — is an important one."

In the vast majority of cases that are either dismissed or settled, little is known. In the council's annual reports, some examples of decisions are discussed, but names are not included.

The public inquiry stage has not always been smooth.

Nude photos

A 2012 inquiry into Manitoba Court of Queen's Bench Justice Lori Douglas ran into several roadblocks before grinding to a halt.

Douglas, head of Manitoba's family court division at the time, was under scrutiny after sexually explicit pictures of her taken by her lawyer-husband were posted on the Internet. She was also accused of sexually harassing one of her husband's former clients.

The independent counsel leading the inquiry, Guy Pratte, resigned after being instructed by the inquiry panel to pursue the harassment charge that he wanted to drop. He also felt undermined when the panel had its own lawyer aggressively question a witness after Pratte had finished.

Douglas's lawyer accused the panel of bias and that prompted separate court hearings.

Two years later, Douglas announced she was resigning and the inquiry was cancelled.

Since then, changes have been made.

There is no longer an independent counsel leading inquiries and the council has one layperson on the panel that decides whether an inquiry is warranted.

The federal government is looking at further changes, including the possibility of releasing more information about complaints. But the government points to pitfalls.

"It is important to remember that where a complaint does not lead to a judge's removal from office, the judge must be able to return to his or her duties," reads a discussion paper released by the Justice Department in June.

"The extent to which judges can publicly defend themselves against allegations of misconduct is limited. As a result, disclosure of such allegations before any investigation has taken place to ascertain key facts may serve to unjustifiably undermine public confidence in the judge."