Sample of Complaints received during 1998-1999
The complainant represented herself on a motion in family law proceedings. She alleged that the judge appeared to be totally unprepared for the hearing and as a result was unable to question the two parties. The judge "would not even look at [her]" and she was "totally disrespected, ignored and discriminated against." The judge had treated her unfairly because she was a woman and single mother, and not a lawyer. The judge would not allow her to tender further evidence and refused to accept her suggestion that he meet with the children of the marriage in order to determine how they felt about custody issues.
In his comments, the judge said that he believed the settlement proposed was a correct solution to the problem. Unrepresented litigants "often fail to understand that, in chambers, evidence is only received in the form of affidavits and not through further representations by themselves." He stated "perhaps I should have made a greater effort to instruct her on this point." The judge apologized for any failure to accord the complainant the appropriate courtesies. The judge's chief justice wrote that because of the increased numbers of applications in family law chambers, it was both difficult and frustrating for the judges, and for those lawyers and individual parties who have to wait so long to have their cases heard. Recent changes had been made in order to handle the volume and reduce the pressure on judges and inconvenience to parties. He advised that it "would be uncharacteristic of [the judge] to speak rudely to a litigant or witness appearing before him or to fail to give appropriate consideration to any matter that comes before him." The Council's letter to the complainant noted that it is unfortunate when a litigant feels he or she has been treated inappropriately by a judge. However, there was no basis for further action by the Council pursuant to its mandate under the Judges Act.
A party in protracted family law proceedings complained that although he was given liberal access to his son by the judge, his wife had successfully moved to block his participation at his son's extra-curricular school and sporting activities. The school had told him that acting as a classroom parent volunteer was not legally possible as it violated the court order regarding access, and the judge had confirmed this.
In response, the judge stated that it was the school that had taken the position with respect to the complainant acting as a parent volunteer. The judge stated that there never was a problem with respect to the complainant attending extra-curricular school or sporting activities. The complainant was informed that as there was no evidence of judicial misconduct, there was no basis for further investigation by the Council.
A litigant in child custody proceedings stated that she had had sole custody of her four children for a number of years. The judge's interim order had denied her custody and all access to the children. She alleged that "from the time he realized I was an Aboriginal woman, every ruling went against me." The judge had given preferential treatment to her ex-husband throughout the hearing, would not let her cross-examine witnesses on relevant matters, and refused to allow evidence from the children to be heard. He had imposed "an order preventing any discussion of the case." The complainant wrote subsequently to complain that the judge referred to the fact of her complaint in open court to the other lawyers. The judge had forced her to proceed at various hearings without legal representation.
Once the trial concluded, the judge responded to the complaint. He stated that he had awarded permanent custody of two of the complainant's four children to their father and that the complainant was denied access because he was concerned for their safety and welfare and felt that their interests were not being served by remaining in the complainant's custody. For much of the trial, the complainant had been unrepresented, but he had assisted her to the extent he was able. He had given her every opportunity to present her case and cross-examine opposing witnesses. He and other judges involved at various times had given her every opportunity to retain counsel and he had made representations to Legal Aid for extra funding to assist her. The judge's description of events was borne out by the transcript of the proceedings. The complainant was advised that there was no evidence of judicial misconduct.
A lawyer alleged "corruption" in the government ministry of which the judge had been a senior public servant before his appointment to the Bench. He had sent the judge letters in relation to litigation in which he acted as counsel. The judge had initially responded to the letters with information he could recall from his term in government, but the complainant said the replies had been "non-responsive and did not have the ring of truth." He also had "a great deal of unease about the integrity of the judicial system [in his province]" because the same judge had heard his matrimonial case a couple of years earlier and he alleged there was a conflict of interest in his doing so.
On the basis of the judge's reply, to which he attached his reasons for judgment in the complainant's matrimonial case, the complainant was advised that there was no evidence of any misconduct. The complainant was informed that the Council had no jurisdiction to investigate allegations of corruption in government departments.
A plaintiff in a personal injury action alleged that the judge had been influenced by another judge whose son appeared as counsel for one of the defendants, and had "tinkered" with his own judgment a year after it was pronounced.
The judge commented that the only outstanding issues after the trial judgment had been delivered dealt with no-fault benefits, costs and interest, and he had dealt with them after representations from counsel, including the complainant's counsel. He was unaware that counsel for one of the defendants was the son of a retired judge, but in any event he had had no contact with the judge during the course of the trial and his only contacts with counsel were in the course of his representation in court. The complainant was informed that there was no basis for any action by the Council.
The complainants were members of a church who had an interest in the outcome of an application for an accounting by the church. They had "four major points that lead us to believe justice was compromised." The first and second related to the fact that, in their view, the judge promised a trial of the matter during the hearing and then made a glaring "about face" in his judgment, and also that the judge did not let the counsel for the Public Trustee present his full case. The complainants said they "lost precious time" because the judge took five months to give a decision. They also alleged the judge was biased because he commented on an occurrence at his own church, and expressed the desire that the present proceedings "did not have such silliness". The judge's use of the term "dissidents" in respect of those supporting the application was alleged to be evidence of bias against the applicant. Finally, the complainants disagreed with the judge's decision dismissing the application.
In response the judge provided a copy of his reasons and a detailed reply, explaining that because the applicant's allegations regarding the accounts had been acknowledged by the respondents as true, there was no need to go through an accounting process to establish those facts. He had not cut short the submissions of counsel for the Public Trustee, which had been made over two days. He acknowledged that he may have told counsel for the Public Trustee that if he was inclined to go to trial, he had enough admissions to proceed. The judge said he was not asked to order a trial. He denied bias against the applicant and failed to see how his comment regarding an occurrence at his own church supported such a conclusion. He could not imagine using the word "silliness" in that context. He had adopted the word "dissident", which had been used by the respondents in their documentation, but did not use the term in any pejorative sense. The length of time between the hearing of the application and the release of his reasons was four months and 10 days. He had found the issues in the application novel and difficult, and this was exacerbated by the fact that the respondents had been unrepresented. There had been an intervening eight-week trial and he had other urgent motions to deal with. The complainants were informed that there was no evidence of judicial misconduct.
The appellant, who was serving a life sentence for sexual assault, alleged that an appeal court panel had not delivered a decision although the hearing was seven months prior to his complaint. He also complained about the time it took to have a hearing since he had started his appeal in 1992, and alleged that the court forced him to be represented by counsel contrary to his wishes. The file was held in abeyance pending a decision by the judges. In the interim, the complainant sent two more letters. The decision was given 14 months after the hearing of the appeal. The judges commented that the delay was caused by the complexity of the appeal and the fact that one of the judges in particular had an unusually heavy workload during the period in question that clearly accounted for time involved in completing the judgment. The chief justice explained that only the time lapse between the hearing and the decision was attributable to the panel of judges. The complainant was the cause for the time lapse between 1992 and the date of the hearing because he had failed to take steps to perfect his appeal. The complainant was informed of a resolution of the Council that reserved judgments should be delivered within six months of hearings, except in special circumstances. He was advised that six months is not a hard and fast rule, particularly for appellate courts, and all circumstances must be taken into account. In this case, a delay of 14 months was understandable. He was informed there was no evidence supporting his other allegations.
A complainant alleged that he had been pressured into signing a settlement agreement following a meeting of the judge and both counsel in chambers. He said the judge had taken the trial in camera rather than continuing the hearing and issuing a judgment. The judge commented that he had hoped to involve the parties through their counsel in an appropriate disposition of the case. At no time did either counsel object to his involvement. The complainant's lawyer recalled that counsel invited the judge to assist the parties in attempting to settle the case before the trial.
The judge met with counsel after the close of evidence of the complainant and advised counsel of his views on the evidence. The complainant was advised of this, and subsequently instructed his lawyer to reach a settlement. The complainant was informed of these facts and that if a party believed there were grounds for the judge to withdraw from the case, the recourse was to present a motion for the judge's disqualification. In the circumstances, and particularly the fact that the judge's involvement began with a request from the parties' counsel, it was concluded that there was no evidence of misconduct on the part of the judge.
A number of judges of a court, including a Council member, were the subject of two letters of complaint making three allegations. The first complaint related to letters sent by lawyers to three judges. The complainant was advised that it was not unusual for lawyers to write to a judge about matters related to a pre-trial conference. The complainant could contest the facts set out in the letters or argue that some matters should be debated by way of motion, but those questions should be argued before the presiding judge. It was not for the Council to assess that situation. The second allegation referred to "displaced collegiality" in a meeting between two judges about his case.
The complainant was informed that there was no indication their conduct was inappropriate. Meetings to discuss logistics of a file may be necessary. The complainant's first letter also said that while dictating to the clerk, one of the judges "experienced difficulty in reading out my name loud . . . and stated that if he was the trial judge, he would use 'Ayatolla' to refer to my name . . ." He alleged the judge had also made a comment about custody of 24-month-old children belonging more properly to mothers. The complainant's wife - who was present at the pre-trial - signed an affidavit denying the judge had made such a statement. The judge also denied having made the statement as alleged. The alleged comment had apparently been reported to the complainant by his lawyer as the complainant was not present at the pre-trial. The third allegation was that during counsel's arguments, one of the judges had said that a complaint could be made to the Council. The complainant felt this comment disclosed that there was some form of "judicial reprisal" against him because he had previously complained to the Council about other judges. The complainant was informed that although this comment by the judge did not appear necessary to decide upon the issues before him, on the basis of the comment alone there was no indication that the judge was biased in his determination.
A complainant alleged that four judges had conspired with the Crown or police against her in a "star chamber" manner. She also disagreed with a number of the decisions made by the judges. In a subsequent letter, she provided 29 pages of unidentified and largely illegible handwritten notes.
The complainant was provided with a point-by-point response to her allegations. She was informed that her allegations were either without substance or concerned judicial decisions that were not reviewable by the Council.
A defence counsel objected to a judge ordering spectators in the court to remove their hats and headgear or leave. In the complainant's opinion, many of them were wearing hats for religious purposes.
Asked for comments, the judge explained that the trial was of a well-known activist and that it was "apparent [to him that] a concerted effort was under way to turn this into a political rather than legal trial." The complainant was informed that the Chairperson of the Judicial Conduct Committee was of the view that the judge had taken the steps he thought necessary to maintain order in the courtroom. Only the Court of Appeal could review his decision. When the complainant wrote expressing dissatisfaction with the disposition of his complaint, he was informed that if the Court of Appeal commented adversely about the judge's comment, the Council could consider whether that conduct would engage the Council's jurisdiction. During 1998-99 the Court of Appeal delivered its decision and commented that the judge had demonstrated insensitivity towards minority religious groups.
The complainant then asked for reconsideration of the complaint. The file was reopened and the judge was asked for further comments.
The Chairperson expressed disapproval of the judge's comments on the basis that they appeared insensitive to minority rights and reclosed the file. The Council was subsequently informed that the complainants have commenced an application for judicial review in the Federal Court of Canada to compel the Council to carry out a formal investigation of the judge's conduct.
Media reports quoted a judge as saying: "I'm concerned as a citizen that with immunity, a Minister of the Crown can get up in the House - on the basis of I don't know what - and say 'I'm going to fire this guy' and everybody is up and cheering. I was thinking of those people around the guillotine. I don't know whether I have a right to intervene. But it left a bad taste in my mouth."
On the basis of the media reports, the Chairman of the Judicial Conduct Committee asked for comments from the judge. While the reply was pending, a Member of Parliament sent a complaint to the Council saying that, in his opinion, the comments constituted contempt of Parliament. After receiving comments from the judge, the file was referred to a Panel. In a letter to the judge, the Panel said it had concluded that the judge's comments fell outside of the sphere of proper judicial expression, were extraneous to the issues before him, and were gratuitous and insulting to Parliament. The judge had expressed a personal concern "as a citizen" but was acting in the role of judge not citizen, and improperly used the unique status of judicial office as a platform for engaging in controversial political debate. The Panel noted that the judge publicly acknowledged the inappropriateness of his remarks as reported. The Panel concluded that while the comments were an unfortunate crossing of the boundary of appropriate judicial speech, the conduct did not warrant a recommendation to the Council for a formal investigation pursuant to ss. 63(2) of the Judges Act.
The complainants were the father and family of two alleged victims in criminal sexual assault proceedings against a lawyer. After comments were received from the judge, and a fact-finding investigation was conducted by outside counsel, the file was referred to a Panel which concluded that five of the complainants' six concerns related to the correctness of various decisions that the judge had made in the course of the trial in acquitting the accused, and fell outside the Council's jurisdiction. The sixth concern dealt with the fact that the judge attended a hockey game with a law partner of one of the witnesses for the defence.
In his comments the judge pointed out that he had referred to this in open court, and explained that it was only at the game that he had become aware of the relationship between the defence witness and one of the persons with whom he attended the game. The judge noted that the Crown had stated that it was satisfied that the judge continue to hear the case. The judge said that he was satisfied that there was nothing improper about his conduct. The Panel concluded that there was nothing improper in the judge's conduct and directed the file be closed as there was no basis for any further action.
In a 145-page complaint, a lawyer for the accused in a criminal trial alleged that: 1) the judge interjected a number of times with unnecessary comments which sought to undermine his role as a competent advocate, and sought to demean him in front of his client; 2) the judge made comments in the presence of a Crown witness which would lead the alleged victim to believe that the judge was "on her side" and 3) the judge made critical comments concerning the lawyer's previous cases as defence counsel, and about his professional judgment.
After comments were received from the judge and his chief justice, the file was referred to a Panel. The Panel concluded on the first allegation that the judge's interjections and exchanges with defence counsel, although in some instances questionable, did not constitute misconduct. On the second aspect, the judge had responded that he found the witness to be fragile and he was exercising his duty to ensure that she was not improperly dealt with by defence counsel. The Panel concluded that this complaint would have been properly dealt with by way of an appeal, but for the acquittal of the accused. The Council was not the appropriate forum to deal with the concern. On the third allegation, the Panel concluded that the judge's conduct in levelling gratuitous insults about defence counsel, and his persistence in doing so, were not only inappropriate, but constituted a departure from the accepted standards by which judges should conduct themselves during the course of a trial, no matter what the circumstances. The comments were inappropriate and deserving of an expression of disapproval, but not sufficient to warrant a formal investigation.
A lawyer complained on behalf of his clients that the judge had demonstrated hostility towards the lawyer and had spoken of his clients in an uncomplimentary manner. He alleged that the judge had stated to the lawyer in chambers that he had a reputation for inflating claims and that the judge had told the parties that they should accept less.
Comments were sought from the judge and the matter was referred to a Panel. The Panel found no unacceptable behaviour or language on the part of the judge in the taped transcript of the proceedings, and accepted the judge's statement that he had not meant to offend the complainant or his clients. But it was inappropriate for the judge to make unfavourable comments about the lawyer in chambers. The meeting, apparently suggested by the judge in order to canvass whether there was a possibility of settlement between the parties, was contrary to rules of procedure in force in the province and the judge had erred in holding it. The Panel expressed disapproval of the judge's conduct in making the comments about the lawyer's reputation and in holding the meeting since he would be continuing the trial if no settlement was reached.
The parents of a young woman victim of sexual assault alleged unfairness in the Court's decision and in a number of specific comments made by one of the judges.
The complainants were advised that the Council had no jurisdiction with respect to judicial rulings and decisions. After receiving comments from the judge, the file was referred to a Panel, which found one of the comments unfortunate, but related to the fact that two of the convictions before the court involved unchaperoned camping trips. The Panel found another remark to be provocative and potentially hurtful not only to the parents of the victim in question, but others as well. The remark would be inappropriate but for the fact that it arose during the course of the Crown's argument and in response to a particular submission. The Panel added that the widest possible latitude must be given to both counsel and the judge for a full and frank exchange during the course of argument. Two other comments related to the seriousness of the offence. The Panel said that this was very much at issue in the case due to provisions of theCharter of Rights and Freedoms.
Such an assessment was not easy to make and could be perceived as minimizing the importance of some charges and the impact on the victims. The complainants were informed that it is always to be regretted when comments made by a judge in the course of a hearing, or the manner in which the comments are made, are considered offensive.