My recent post on the conclusion of the Canadian Judicial Council (CJC) Inquiry into the Douglas Inquiry urged for a better and clearer articulation of the reasons for removal of federally-appointed judges from office. After realizing late that a procedure in the hands of her judicial colleagues was in fact a runaway train, the former Associate Chief Justice of the Court of Queen’s Bench of Manitoba (Family Division) had only way out: jumping off.
To honour this good public servant, driven out of office without any charges proven or even well articulated against her, the legal community must ask whether the governing statute itself failed her.
why an inquisitorial justice model?
A bird’s-eye view of the CJC’s process (more particularly set out in sections 63-66 of the federal Judges Act) reveals it is almost a pure inquisitorial model that is foreign to Canadian justice and is no longer in use in countries where it was once prevalent. In the CJC process, the committee of inquiry is both investigator and court of public record. The committee then reports findings to the whole CJC, which convenes like an ecclesiastical* conclave. The only process that resembles a trial occurs at a public hearing of the Inquiry Committee. Thus, the committee becomes the de facto trial court.
One can therefore see how both “sides” of the dispute lawyer-up from day one of the Inquiry Committee process and thus intensely burn through legal work. The reason? The committee is fact-finding from day one, meaning it is a non-stop trial court. The predictable but unintended consequence of this is spiralling cost – reported to have been $3 million in the Douglas Inquiry, a figure that does not include the cost of lawyers for parties outside of judge Douglas and the Inquiry Committee.
Compare this even to a high-profile employment termination case in the civil courts. Where preliminary steps are held out of court or before judicial officers disqualified from presiding at trial, there is less intensity compared to the trial, where the “On Air” light comes on and the lawyers are working 24/7. Where every step is part of a trial from day one, the cost and the toll on the litigant cannot be anything but staggering.
whose burden of proof?
Judicial historians may also recall that one of the cornerstones of the inquisitorial model is the tactical burden of proof on the accused. This is a structural manifestation as much as a historical one: an inquisitor’s purpose is to ask, not to prove; so a burden settles by default with the accused. This indeed became a factor during the course of the original Inquiry Committee in the Douglas matter. Proving one’s innocence, even in a dubious case like this, will always be more onerous and expensive than instilling reasonable doubt in a trier of fact.
The provisions in the Judges Act do not refer to a burden. Structurally and substantively, the Judges Act imposes a psychological burden on the accused to prove innocence. If one observes the way the Inquiry Committee approached its task, especially in ruling that viewing the images of Douglas’ body were relevant and necessary to the process, there was a heavy emphasis on the institutional standing of the courts. This statutory criterion is obviously integral to the legal standard that judges must behave in a manner that commands public respect.
As I argued previously, the preoccupation with depictions of Douglas’ body as obscenity blinded the committee to the real peril to judicial integrity the images posed, i.e. as fodder for blackmail.
Quite rightly, the CJC process is intended to protect public confidence in the institution. To the extent that this conflicts with the legal rights of a judge accused of incapacity or wrongdoing, the conflict is not bias but purpose. Can we see in the statutory architecture the reason why the conflict exists?
the cjc as hr department
The root of the conflict is the adoption of an analogy to employment law that is patently inappropriate. An inquiry committee conducts fact-finding, with input from the employee under scrutiny, and prepares a report. (As the original independent counsel for the committee found, as disclosed in correspondence with the CJC, the inquiry train kept veering to one side and ‘independent’ did not necessarily mean ‘impartial.’) After an inquiry has been completed, the statute provides that the CJC shall report its conclusions and submit the record of the inquiry or investigation to the Minister of Justice.
Any labour and employment lawyer can recognize that the operative administrative model here is that of executive employment termination: The CJC occupies the role of a company human resources department, and the Minister and Parliament are the board of directors. In the company model, the HR department exists to protect the company, and the board to ensure any firing decision is in the interest of shareholders. One can therefore see how this is a firing function, not an adjudicative one.
If judge Douglas had been an officer of a company, she could have resigned and turned to the law courts to plead constructive dismissal. If she were an ordinary public employee, she could have asked her union to file a grievance and take the matter to the appropriate labour relations board. Because she was a Canadian Superior Court judge, a process whose purpose was to remove her from office was the only one available.
change the inquiry to a professional discipline model
We have thus learned from the Douglas Inquiry that the process under the Judges Act is not like a court or administrative tribunal, but rather like an employer’s internal human resources department. For an individual who has given up a legal career to serve the public, this is more than just another job. At the very least, the way in which complaints against a judge should be determined should be similar to the way in which professional bodies such as law societies and colleges of physicians hold their discipline and capacity proceedings.
In the case of law societies, inquiries are held by professional investigators and prosecutorial counsel. There is no doubt that the inquisitor is an adversary – not a finder of fact. If there are sufficient grounds for a formal prosecution, the hearing is held by a tribunal consisting of decision-makers not burdened with the investigative proceedings. The actual proceedings can vary in formality. Where the case warrants strict adherence to natural justice principles, hearings before a law society are no different from a court of law. (Indeed, the civil burden of proof on the prosecution is enhanced, in that decisions to remove a professional from practice can only be made based on clear and cogent evidence.)
If the professions have reformed their discipline and capacity proceedings to separate the investigative and prosecutors functions from the adjudicative body, why has the governing council of the judiciary failed to follow suit? Part of it is that there is insufficient public interest in this obscure antechamber of Canadian civics for the Judges Act procedures to reach the parliamentary agenda. Another is the conceit among judges themselves that they have the mental discipline to play both Inspector Javert and Oliver Wendell Holmes, Jr. in the same unfolding drama. As officers of the courts, we lawyers are slow to view the judiciary with a critical eye. Judge Douglas’ matter fell through, not cracks, but chasms between these confluent insufficiencies. It is time for all of us to wake up and use this failed case to discuss ways to ensure this can never happen to another Lori Douglas.
There is no reason why the professional discipline model cannot be adapted to the CJC’s function. The ultimate authority to remove a judge will always be Parliament or the Governor in Council, after referral by the Minister of Justice. In order to effect this change, we require amendment of the Judges Act. The legacy of the Douglas Inquiry must be that no judge should again be subjected to a process that is different in principle from the justice system over which she has helped to administer.
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*The ecclesiastical reference is not intended to be derogatory. The original ecclesia (ἐκκλησία) was a feature of early Greek government and a prototype of a congressional or parliamentary assembly. Notably, it was a body of governance and not an adjudicative one.