“Fighting Words”: Regulating Judges in Canada Richard Devlin* and Adam Dodek** I. Introduction

“Them’s fighting words” said a senior and highly respected Canadian judge when s/he heard we were working on a project called “Regulating Judges.” The judge was, undoubtedly, joking but the response is indicative of the fact most Canadian judges tend to recoil at the notion that they are regulated in any way. This is largely because of the strong and proud tradition of which has become constitutionalized through judicial interpretation. For two decades, the judiciary clashed with the executive over remuneration and this led to multiple rounds of litigation which twice made their way to the .1 These cases provided the courts with the opportunity to develop a muscular conception of judicial independence.2

In Canada, judicial accountability is a disfavoured phrase. It would be inaccurate to characterize the binary opposition between independence and accountability as in any way a clash of competing ideals of equal strength.3 Judicial independence in Canada is well-developed, is strongly anchored constitutionally, has been fleshed out conceptually and is widely embraced by members of the judiciary, the legal profession and usually by governments. In contrast, judicial accountability is characterized a political slogan of minor note, a poorly-developed analytical concept, and sometimes a rallying cry for judicial resistance.4 As we will discuss in part II, the concept of accountability is implicitly accepted by Canada’s judges in certain respects, for example, as part of a complaints/discipline process. We aim in this chapter to bring accountability out of the shadows and shine some light on it as a legitimate and justifiable value for regulating judges in Canada.

There is one key feature of note that is necessary for understanding any discussion of the regulation of judges in Canada. Canada is a federal state.5 The Canadian Constitution divides

* Schulich School of Law, , Halifax, Canada. ** Faculty of Law, University of , Canada.

1 See Provincial Judges Reference, [1997] 3 SCR 3 and Provincial Court Judges Assn of New Brunswick v. New Brunswick (Minister of Justice), [2005] 2 SCR 286 [Bodner]. 2 This focus on judicial remuneration is perhaps understandable from a political science perspective, but surprising from a comparative perspective because Canadian judges are extremely well-remunerated by any standards both compared to other Canadians and compared to their counterparts in other jurisdictions. We discuss this in part IV on Resources. 3 Compare The Rt. Hon. , “The Rule of Law and Judicial Independence: Protecting Core Values in Times of Change” (1996) 45 University of New Brunswick Law Journal 3 and Allan C. Hutchinson, “Towards Judicial Accountability – Are the Excuses Getting Lamer?” (1996) 45 University of New Brunswick Law Journal 97. 4 Compare The Rt. Hon. Antonio Lamer, “The Rule of Law and Judicial Independence: Protecting Core Values in Times of Change” (1996) 45 University of New Brunswick Law Journal 3 and Allan C. Hutchinson, “Towards Judicial Accountability – Are the Excuses Getting Lamer?” (1996) 45 University of New Brunswick Law Journal 97. 5 As we discuss in part II, we identify federalism as an important value in the regulation of judges in Canada.

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powers between the federal government and the ten provincial governments.6 The administration of justice is a shared federal-provincial responsibility.7 There are three types of courts in Canada: (1) those whose judges are appointed by the federal government and administered by the federal government (such as the Supreme Court of Canada, the of Canada and other specialized courts); (2) those whose judges are appointed by the federal government and administered by the provincial governments (the highest courts of appeal in each province as well as the basic trial courts); and (3) wholly provincial courts whose judges are appointed by the provincial governments and administered by them (these courts deal primarily with criminal and family matters). Our discussion of regulating judges will generally focus on the first two categories whose judges share in common being appointed by the federal government. Not surprisingly, in Canada, they are generally known as “federally-appointed judges.” They number approximately 1,100.8

II. The Values of the Canadian Judiciary

In the Introduction to this book we identified values as the normative foundation for any judicial system. These may be explicit or implicit; complimentary or contradictory. We proposed six values: independence, impartiality, accountability, representativeness, transparency and efficiency. We also suggested that contributors might not embrace all of these values for their country’s judiciary and that they might identify alternative or additional values. It is not surprising that for Canada we embrace the above six values. In the analysis that follows, we will focus on accountability and representativeness as the most contentious values in Canada. We will also identify one other “Canadian value” that we believe is accepted as a normative foundation for the Canadian judicial system, federalism.

(1) Independence

In Canada, judicial independence in Canada is firmly recognized as a foundational value. Canada has a long and strong tradition of judicial independence inherited from the United Kingdom. Judicial independence has been recognized by the Supreme Court of Canada as an unwritten constitutional principle9 – a principle that is not explicitly enumerated in the text of the Constitution but one of the organizing principles of that document.10 Although it is nowhere enumerated in Canada’s Constitution, judicial independence arguably receives stronger protection from encroachment than most enumerated rights in that document.11

6 See Constitution Act, 1867, 30 & 31 Victoria, c. 3, ss. 90-95 (U.K.). 7 Compare Constitution Act, 1867, s. 91(27), 96-101 (federal powers) with Constitution Act, 1867, s. 92(14) (provincial powers over “[t]he Administration of Justice in the Province, including the Constitution, Maintenance, and Organization of Provincial Courts, both of Civil and of Criminal Jurisdiction, and including Procedure in Civil Matters in those Courts.”). 8 There are approximately 1000 provincially appointed judges. We must note as well that in Canada, administrative tribunals are not a component of the judiciary; they are considered part of the executive. 9 See Provincial Judges Reference, [1997] 3 SCR 3. 10 See Secession Reference, [1998] 2 SCR 217 at para. ___. 11 Adam Dodek, “Judicial Independence as a Public Policy Instrument” in Adam Dodek & Lorne Sossin, eds., Judicial Independence in Context (Toronto: Irwin Law, 2010) 295 at 299 citing Peter W. Hogg, “The Bad Idea of Unwritten Constitutional Principles: Protecting Judicial Salaries” in Dodek & Sossin, ibid. at 25 and Amnon Reichman, “Judicial Non-Dependence: Operational Closure, Cognitive Openness, and the Underlying Rationale of the Provincial Judges Reference – The Israeli Perspective” in Dodek & Sossin, ibid. at 438.

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Judicial independence is also explicitly recognized as a foundational ethical principle.12

The Supreme Court of Canada has recognized the “core” of the principle of judicial independence as consisting of “the complete liberty of individual judges to hear and decide the cases that come before them: no outsider -- be it government, pressure group, individual or even another judge -- should interfere in fact, or attempt to interfere, with the way in which a judge conducts his or her case and makes his or her decision.”13 This “core” conception of judicial independence is closely linked to the next value, impartiality, discussed below.

However, the Supreme Court of Canada has expanded the rationale for judicial independence beyond this “core” concept of facilitating impartiality. It has recognized the modern role of the judiciary as “a significant social institution with an important constitutional role which participates along with other institutions in shaping the life of its community.”14 According to this expanded conception, judicial independence is necessary not only for the fair and impartial adjudication of disputes in individual cases but it also serves as “the lifeblood of constitutionalism in democratic societies”, protecting the Constitution “and the fundamental values embodied in it -- rule of law, , equality, preservation of the democratic process, to name perhaps the most important.”15 On this basis, the Supreme Court has recognized that there is both an individual and an institutional element to judicial independence. It has also determined that there are three determinative components to judicial independence: (1) security of tenure; (2) financial security; and (3) administrative independence.16

In Canada, the jurisprudence on judicial independence has developed largely in the context of clash between provincial governments and provincially-appointed judges over salaries and pensions (collectively referred to as “judicial remuneration”). In what remains a controversial decision more than 15 years later, the Supreme Court of Canada held that judicial independence, though not explicitly mentioned in the text of the Constitution, was protected by it.17 The Supreme Court held that this unenumerated right constitutionally prohibited any “negotiations” over remuneration between the executive and the judicial branches. Furthermore, it constitutionally mandated the creation of judicial remuneration commissions to make recommendations to government over judicial remuneration. As one former Chief Justice commented, “it is understandable but unfortunate that the most significant court decisions in this

12 See Canadian Judicial Council, Ethical Principles for Judges (Ottawa: Canadian Judicial Council, 1998) c. 2.

13 Beauregard v. Canada, [1986] 2 SCR 56 at para. 21.

14 Shimon Shetreet,"The Emerging Transnational Jurisprudence on Judicial Independance: The IBA Standards and Declaration", in Shimon Shetreet & Jules Deschênes, eds., Judicial Independance: The Contemporary Debate (1985), at p. 393 quoted with approval by Beauregard v. Canada, [1986] 2 SCR 56 at para. 21.

15 Beauregard v. Canada, [1986] 2 SCR 56 at para. 24.

16 Provincial Judges Reference, [1997] 3 S.C.R. 3 at para. 118 and Valente v. The Queen, [1985] 2 S.C.R. 673 at 687.

17 Several provisions of the Canadian Constitution provide partial explicit protections for judicial independence. See Constitution Act, 1867, s. 96, 97, 98, 99; Canadian Charter of Rights and Freedoms, s. 11(d) (providing …..).

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crucial area of judicial independence in recent years have arisen with respect to issues which can be too readily characterized as ‘pay, parking, and pensions.’”18

Judicial independence is frequently intertwined with impartiality.19 The two concepts are also often conflated. However, it is acknowledged that judicial independence is not an end it itself; but rather exists to protect the impartial adjudication of disputes. As the Supreme Court of Canada has stated, judicial independence of individual judges is necessary to ensure “the complete liberty of individual judges to hear and decide the cases that come before them”.20 Or, as expressed by the Canadian Judicial Council, judicial independence “refers to the necessary individual and collective or institutional independence required for impartial decisions and decision making.”21 The triumvirate of British Columbia Chief Justice has recently characterized independence as “the precursor and guardian of judicial impartiality.”22

Thus, this nexus to judicial impartiality becomes the touchstone for considering the impact of measures on judicial independence.23 Canadian judges have at times been defensive about judicial independence, recognizing that in practice the judiciary is the beneficiary of a doctrine that as a matter of principle exists to benefit the public. The Canadian Judicial Council states that “[j]udicial independence is not the private right of judges but the foundation of judicial impartiality and a constitutional right of all Canadians.”24

Judicial independence is frequently raised as a foundational value against perceived encroachments. Thus, in the case of the British Columbia Justice Reform project (which we will discuss in Part ?), the Chief Justices of the province’s three courts issued a five-page statement entitled “Judicial Independence (And What Everyone Should Know About It)”.25 The clear intention was to raise judicial independence as a yellow light to slow down the provincial

18 Justice Brian W. Lennox, “Judicial Independence in Canada – The Evolution Continues” Adam Dodek & Lorne Sossin, eds., Judicial Independence in Context (Toronto: Irwin Law, 2010) 622 at 625. 19 See Martin L. Friedland, A Place Apart: Judicial Independence and Accountability in Canada (Ottawa: Canadian Judicial Council, 1995) at 1(“Independent and impartial adjudication is essential to a free and democratic society.”) and Canadian Judicial Council, Ethical Principles for Judges (Ottawa: Canadian Judicial Council, 1998) at 7 (“An independent judiciary is indispensable to impartial justice under law.”). 20 Provincial Judges Reference, supra at para. 123 quoting Beauregard v. Canada, [1986] 2 S.C.R. 56 at 69. See also Provincial Judges Reference, ibid. at para. 10 (“One of these goals is the maintenance of public confidence in the impartiality of the judiciary which is essential to the effectiveness of the court system. Independence contributes to the perception that justice will be done in individual cases.”). See also Canadian Judicial Council, Ethical Principles for Judges (Ottawa: Canadian Judicial Council, 1998) 8. 21 Canadian Judicial Council, Ethical Principles for Judges (Ottawa: Canadian Judicial Council, 1998) 8. 22 Court of Appeal for British Columbia, Supreme Court of British Columbia and Provincial Court of British Columbia, “Judicial Independence (And What Everyone Should Know About It”), 15 March 2012, online: http://www.courts.gov.bc.ca/about_the_courts/Judicial%20Independence%20Final%20Release.pdf at p. 5 [Judicial Independence]. 23 See Adam Dodek, “Judicial Independence as a Public Policy Instrument” in Adam Dodek & Lorne Sossin, eds., Judicial Independence in Context (Toronto: Irwin Law, 2010) 295 at 302-03. 24 Canadian Judicial Council, Ethical Principles for Judges (Ottawa: Canadian Judicial Council, 1998) 8. Justice Brian W. Lennox, “Judicial Independence in Canada – The Evolution Continues” Adam Dodek & Lorne Sossin, eds., Judicial Independence in Context (Toronto: Irwin Law, 2010) 622. J. expressed concerns that sometimes judicial independence is seen as a self-serving invention of the judiciary, as being too much about judges and not enough about independence.” Ibid. at 622. 25 Judicial Independence, supra note xxx.

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government’s attempt to reform the justice system. The expressed concern was the perceived threat to administrative independence which includes: “1 the assignment of judges to hear particular cases; 2 the scheduling of court sittings; 3 the control of court lists for cases to be heard; 4 the allocation of courtrooms; and 5 the direction of registry and court staff in carrying out these functions.”26

Some commentators have accused judges of using judicial independence as a licence for “self- serving arguments to justify the exercise of enormous power without constraint or accountability.”27 As is clear from our introduction, we believe that judicial independence is one of several important values. However, as will become apparent as this paper unfolds, concerns about a policy’s impact on judicial independence should be the beginning of the analysis, not the end. The main issues of judicial independence arise in Canada in terms of executive-judicial relations (discussed in part III); appointments (discussed in part III); and court resources and reforms (discussed in part IV).

(2) Impartiality

Impartiality is the second firmly-established foundational value in Canada. It is constitutionally- recognized through the text of the Constitution28 and by Supreme Court judgments.29 Impartiality is recognized as a guiding ethical principle for Canadian judges.30 There is also a well-developed jurisprudence in Canada on the reasonable apprehension of bias.31

The Supreme Court has explained that “impartiality refers to a state of mind or attitude of the tribunal in relation to the issues and the parties in a particular case.”32 This is different from independence which refers to the “status or relationship to others, particularly to the executive branch of government, that rests on objective conditions or guarantees.”33 Independence is required to promote and protect impartiality: “[j]udicial independence is critical to the public’s perception of impartiality. Independence is the cornerstone, a necessary prerequisite, for judicial impartiality.”34 However, impartiality still remains an “essentially contested concept”35 in Canada. Despite major reforms in the law, concerns continue to be expressed about the role of judges in hearing

26 Ibid at ? 27 Hutchinson, “Towards Judicial Accountability”, supra at 103. Hutchinson specifically mentions judicial resistance to mandatory continuing education for judges and lay representation on judicial complaints and discipline panels. We will return to these points in Parts ? and ? 28 Charter, s. 11(d). 29 Cite to SCC cases re judicial independence and Hogg & Dodek etc 30 See Canadian Judicial Council, Ethical Principles for Judges (Ottawa: Canadian Judicial Council, 1998), c. 6. 31 Klugman book; P. Bryden & J. Hughes article. 32 R. v. Valente, [1985] 2 S.C.R. 673 at 685.

33 Ibid. In Mackeigan, supra _____ at para. 56, McLachlin J. (as she then was) explained that judicial impartiality involved a state of mind whereas judicial independence concerned the relationship between judges and others, particularly those in government. 34 R. v. Lippé, [1991] 2 S.C.R. 114 at para. 48. 35 Gallie article.

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sexual assault cases.36 Despite directions from the Supreme Court of Canada that Aboriginal accused are to be sentenced with an awareness of the larger social context,37 Aboriginal persons (and especially aboriginal women) are dramatically over-represented in the prison population.38 Just as poignantly there have been heated debates, and a deeply split Supreme Court, over the extent to which judges from minority communities are permitted to draw on their own cultural background and experiences in their decision-making processes.39 Furthermore, Canadian codes of conduct are concerned about judges’ action in court which could raise a reasonable apprehension of bias. But there are also questions being raised about (1) personal or professional connections to parties; (2) conduct off the bench in the community, including fundraising;40 (3) extra-judicial activities such as heading public inquiries and conducting other work for the executive branch of government;41 and (4) post-retirement conduct.42

(3) Accountability

As we stated in the Introduction to this chapter, judicial accountability is a controversial concept in Canada.43 We distinguish between “political accountability” and “public accountability”. Political accountability is the attempt to hold persons who exercise power accountable for the exercise of that power through the political process. But that is not the only way that those who exercise power may be held accountable. Public accountability is concerned with means outside of the formal political process. In this broader sense, accountability may be understood as “a means of making responsible the exercise of power.”44 As Canada’s former top civil servant explained, “where authority resides, so resides accountability, and if one has authority to strike a decision, then one has an obligation to provide an account.”45

36 Elaine Craig article. 37 See e.g. Gladue and Ippalee. 38 S. Perreault, “Admissions to adult correctional services in Canada 2011/2012” Juristat 2014, at 48 (full cite required); Mia Dauverge, “Adult correctional statistics in Canada, 2010/2011” Canadian Centre for Justice Statistics (Oct. 2012) at 11-12. 39 See RDS. 40 See Stephen G.A. Pitel & Michael Malecki, “Judicial Fundraising in Canada” Alberta Law Review (forthcoming), online: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2429703. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2429703 41 Cite CJC and Adam Dodek, “Judicial Independence as a Public Policy Instrument” in Adam Dodek & Lorne Sossin, eds., Judicial Independence in Context (Toronto: Irwin Law, 2010) 295. 42 See Stephen G.A. Pitel & Will Bortolin, “Revising Canada’s Ethical Rules for Judges Returning to Practice” (2011) 34 Dalhousie Law Journal 483. 43 See the exchange between Chief Justice Lamer and Allan Hutchinson referred to earlier. Supra note xxx. 44 Canada, Privy Council Office, Responsibility in the Constitution, “Constitutional Responsibility and Accountability”, online: http://www.pco- bcp.gc.ca/index.asp?lang=eng&page=information&sub=publications&doc=constitution/table-eng.htm. at c. VIII. On accountability generally see Mark Bovens, Robert E. Goodin & Thomas Schillemans, eds., The Oxford Handbook of Public Accountability (Oxford: Oxford University Press, 2014). 45 Canada, Commission of Inquiry into the Sponsorship Program and Advertising Activities (The Hon. John Gomery, Commissioner) (Ottawa), vol. 47, 8 December 2004, 8235 quoted in Donald J. Savoie, Court Government and the Collapse of Accountability in Canada and the United Kingdom (Toronto: Press, 2008) 257.

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There is implicit and growing explicit recognition of the value of public accountability. Thus, the Canadian Superior Court Judges Association – the body representing most of Canada’s federally-appointed judges – has explicitly acknowledged the importance of accountability. It states:

Despite their independence, judges are accountable for their actions and decisions. Hearings, trials and rulings are open to public scrutiny, so justice is seen to be done and citizens and the media can discuss and criticize the work of the courts. A judge's ruling can be appealed to a higher court and, if an error has been made, a new trial will be ordered or the decision will be corrected.46

The Supreme Court has also implicitly recognized the importance of accountability in its decisions on individual judges’ duty to give reasons for decisions: “At the broadest level of accountability, the giving of reasoned judgments is central to the legitimacy of judicial institutions in the eyes of the public. Decisions on individual cases are neither submitted to nor blessed at the ballot box. The courts attract public support or criticism at least in part by the quality of their reasons. If unexpressed, the judged are prevented from judging the judges. “47 More concisely: reasons for judgment “are the primary mechanism by which judges account to the parties and to the public for the decisions they render.”48 However, despite putting a high premium on the importance of reasons for decision, the Supreme Court of Canada has recently accepted [or even endorsed] the practice of “judicial copying”49 a practice that has been condemned in other jurisdictions.50

Moreover, the discipline processes for judges established under both federal and provincial legislation explicitly recognize the value and the imperative of public accountability.51 Furthermore, Canadian courts and judicial councils expand accountability through providing more information about their operation via annual reports, publishing statistics, etc.52 There is thus a strong nexus between transparency and accountability; transparency helps promote accountability.

In contrast to “public accountability”, “political accountability” remains highly contested in Canada and the alignment of “accountability” with political accountability has impaired the analysis of the value of accountability in the Canadian judiciary. The term is politically charged and is widely viewed as political attempts to rein in judges who are not responding to the democratic will. Here we will only provide two brief examples. First, in 2000, there was an aborted attempt in to introduce a “Judicial Accountability Act.”53 This act would have required the creation and publication of records for criminal sentences imposed by each individual judge. The motivation for the bill was the perception in certain political quarters that

46 Canadian Superior Court Judges Association: http://www.cscja-acjcs.ca/judges_accountable-en.asp?l=5. 47 R. v. Sheppard, [2002] 1 S.C.R. 869, 2002 SCC 26 at para. 5. 48 Ibid. at para. 15. 49 Cojocaru 50 Crinnion EWCA cite. 51 CITE CJC Website and Annual Report 52 Cite examples 53 Bill 66, Judicial Accountability Act, 2000, 37th Leg., 1st Sess. (Marilyn Mushinski, MPP).

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some judges were “soft on crime”. In introducing the bill in the legislature with the tacit support of the Attorney General,54 the sponsoring Member of Provincial Parliament explained: “This bill will require the Attorney General to table an annual report of the sentences that are handed out by judges in serious, non-plea bargained criminal cases compared to the maximum sentence under the law. This will let the government, law enforcement agencies and the public at large know which judges believe that stiff sentencing is an important way to protect law-abiding citizens and motivate lenient judges to give out tougher sentences.”55 The bill was strongly opposed on the grounds that it was an attempt by the executive and the legislative branch to put pressure on individual judges in violation of judicial independence. It passed second reading but died in committee.56 Such blatant attempts to hold judges “politically accountable” have been rare in Canada. However, a second example has been more successful. In [date] the Federal Government, again concerned about judges who were “soft on crime” introduced mandatory minimums for a series of offences.57 Despite the objections of many judges (some of which were very public58) that this was an attack on judicial independence this policy has been successfully implemented, and judicial discretion had been reigned in.59

(4) Transparency

There is increasing acknowledgement of the value of transparency in the administration of justice in Canada. For example, it finds explicit recognition through the “open courts principle.” In Canada, this commitment to openness and transparency in how judges operate is derived from the constitutional protection for freedom of communication and freedom of expression;60 it is also based on the common law.61 The Supreme Court of Canada has stated that “[t]hese fundamental and closely related freedoms both depend for their vitality on public access to information of public interest. What goes on in the courts ought therefore to be, and manifestly is, of central concern to Canadians.”62 The Supreme Court emphasized the importance of openness and transparency, stating that “[i]n any constitutional climate, the administration of justice thrives on exposure to light -- and withers under a cloud of secrecy.”63 This this involves the right of public access to the courts.64 The Court continued:

54 Ian Urquhart, "Attorney-general in hot water" The (Hamilton) Spectator (17 May 2000) D2. 55 Ontario Hansard, 37th Leg., 1st Sess., 18 April 2000, L044 (Statement of Marilyn Mushinski, MPP). 56 Ontario Legislature, Status of Bills, 37:1 Bill 66, Judicial Accountability Act, 2000, online: http://www.ontla.on.ca/web/bills/bills_detail.do?locale=en&BillID=573&isCurrent=false&detailPage=bills_detail_s tatus. 57 Cites. 58 Cite example. 59 A third example is the government’s imposition of mandatory victim surcharge which has also been resisted by a significant number of judges. See A. Seymour, “Judges vs. The Victim Surcharge” Ottawa Citizen Jan. 10, 2015 Section D. 60 See Canadian Charter of Rights and Freedoms, s. 2(d) as cited in Toronto Star Newspapers Ltd. v. Ontario, 2005 SCC 41, [2005] 2 SCR 188 at para. 2. 61 Re Vancouver Sun, 2004 SCC 41, [2004] 2 SCR 332 at para. 23; Canadian Broadcasting Corp. v. New Brunswick (Attorney General), supra, at para. 21. 62 Toronto Star Newspapers Ltd. v. Ontario, 2005 SCC 41, [2005] 2 SCR 188 at para. 2. 63 Toronto Star Newspapers Ltd. v. Ontario, 2005 SCC 41, [2005] 2 SCR 188 at para. 1. 64 Re Vancouver Sun, 2004 SCC 41, [2004] 2 SCR 332 at para. 24.

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Openness is necessary to maintain the independence and impartiality of courts. It is integral to public confidence in the justice system and the public's understanding of the administration of justice. Moreover, openness is a principal component of the legitimacy of the judicial process and why the parties and the public at large abide by the decisions of courts.65

However the judicial commitment to the open courts principle was recently called into doubt when the Supreme Court of Canada held a secret hearing at an undisclosed location on October 11, 2013. This novel hearing for the Supreme Court examined the case of Mohamed Harkat, an Algerian refugee allegedly linked to Al-Qaeda sympathizers. Harkat was arrested on a security certificate under the Immigration and Refugee Protection Act in 2002 based on intelligence gathered by the CSIS. The Supreme Court hearing was held in secret so the judges could examine the evidence, which was based on “classified” intelligence implicating Harkat, while protecting the CSIS informants who provided it. This meant that the media, Harkat and his lawyers were all denied access to the secret hearing. Instead special security-cleared advocates were designated to represent the accused’s interests. However, concerns remain whether evidentiary standards can be met, whether a fair trial can be achieved and whether the principles of fundamental justice can be upheld under such circumstances.66

Beyond the open courts principle there is an increasing recognition of the value of openness and transparency in court proceedings through the publication of information about the court, though annual reports, court websites and statistics.67 This has been especially the case with the CJC in providing information about judges who are subject to the complaints and discipline process. For example, in the Douglas Inquiry, which we will discuss in Part ?, the CJC has released an unprecedented amount of information including communication between the Inquiry Panel and the Inquiry lawyer. However, in other jurisdictions, for example Ontario, there have been criticisms that the complaints process has not been transparent enough.68

(5) Representativeness

Representativeness is a contested value in terms of regulation of the judiciary in Canada. As we stated in the Introduction to this book, by representativeness we mean that the composition of the judiciary is broadly representative of the diversity of the larger population, particularly on the variables of gender, race, class and disability. In Canada, we do not include geographic representation in this category because that is encompassed within the value of federalism, discussed below.

65 In Re Vancouver Sun, 2004 SCC 41, [2004] 2 SCR 332 66 Kent Roach, “The Supreme Court’s Secret Hearing”, The Ottawa Citizen, (8 October 2013), online: < http://www.law.utoronto.ca/news/prof-kent-roach-supreme-courts-secret-hearing>; John Chipman, “Secret Supreme Court hearing focuses on security certificate”, CBC News (6 October 2013), online: < http://www.cbc.ca/news/ canada/secret-supreme-court-hearing-focuses-on-security-certificate-1.1913196>.

67 Cites to CJC Reports, Court Annual Reports 68 Editorial: “Ontario needs to stop shielding incompetent judges” Toronto Star, July 22, 2014.

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In Canada, equality is enshrined as a protected right in the Constitution.69 The right to equality includes the recognition of the normative value of affirmative action programs.70 Importantly, the Supreme Court has recognized that such programs are not an exception to the right to equality but a central conception of it.71 Additionally, multiculturalism is official federal government policy, recognized in Canada’s Constitution72 and enshrined in legislation.73 Canada also has a strong history of human rights protection under federal and provincial legislation.74

Despite these constitutional and statutory commitments, representativeness remains a contested value in Canada. Judges,75 scholars,76 and the Canadian Bar Association77 have embraced the value of a representative judiciary. The has explained that a diverse bench is necessary because the judiciary should better reflect the diversity of the people that it

69 S. 15. 70 See Canadian Charter of Rights and Freedoms, s. 15(2). 71 See R. v. Kapp, 2008 SCC 41, [2008] 2 S.C.R. 483. 72 Canadian Charter of Rights and Freedoms, s. 27. 73 See Canadian Multiculturalism Act, RSC 1985, c. 24 (4th Supp.). 74 See e.g. Pearl Eliadis, Speaking Out on Human Rights: Debating Canada’s Human Rights System (Montreal & Kingston: McGill-Queen’s University Press, 2014); The Rt. Hon. Beverley McLachlin, P.C., “Judging: the Challenges of Diversity,” Judicial Studies Committee Inaugural Annual Lecture, Edinburgh, Scotland, June 2012, available online at http://www.scotland-judiciary.org.uk/Upload/Documents/JSCInauguralLectureJune2012.pdf, at 17. 75 Cites 76 Cf. Lorne Sossin, “Should Canada Have a Representative Supreme Court?” in Nadia Verrelli, ed., The Democratic Dilemma: Reforming Canada’s Supreme Court (Montreal & Kingston: Institute for Intergovernmental Relations, 2013) 27; Lorne Sossin, “Judicial Appointment, Democratic Aspirations, and the Culture of Accountability” (2008) 58 UNBLJ 11; Indigenous Bar Association, “Respecting Legal Pluralism in Canada: Indigenous Bar Association Appeals to Harper Government to Appoint an Aboriginal Justice to the Supreme Court of Canada” in Nadia Verrelli, ed., The Democratic Dilemma: Reforming Canada’s Supreme Court (Montreal & Kingston: Institute for Intergovernmental Relations, 2013) 65; Indigenous Bar Association, “Indigenous Bar Association Urges Prime Minister Harper to Remove Barriers to Judicial Appointments for Indigenous Judges” in in Nadia Verrelli, ed., The Democratic Dilemma: Reforming Canada’s Supreme Court (Montreal & Kingston: Institute for Intergovernmental Relations, 2013) 67; Sonia Lawrence, “Reflections on Judicial Diversity and Judicial Independence” in Adam Dodek & Lorne Sossin, eds., Judicial Independence in Context (Toronto: Irwin Law, 2010); K.D. Ewing, “A Theory of Democratic Adjudication: Towards a Representative, Accountable and Independent Judiciary” (2000) 38(3) Alberta Law Review 708; Richard Devlin, A. Wayne Mackay & Natasha Kim, “Reducing the Democratic Deficit: Representation, Diversity and the Canadian Judiciary, or Towards a ‘Triple P’ Judiciary” (2000) 38 Alberta L. Rev 734.; Ian Peach, “Legitimacy on Trial: A Process for Appointing Justices to the Supreme Court of Canada” Saskatchewan Institute of Public Policy, Public Policy Paper 30 (February 2005) 9; Isabel Grant & Lynn Smith, “Gender Representation in the Canadian Judiciary” in Ontario Law Reform Commission, Appointing Judges: Philosophy, Politics and Practice (Toronto: Ontario Law Reform Commission, 1991) 57.

77 CBA Resolution 13-04-A, Equality in Judicial Appointments, approved August 18, 2013. The Resolution was followed up with a letter to the Minister of Justice which included the following: “I would like to continue our discussion about ensuring that judicial appointments reflect the diversity of the Canadian population. Since we first spoke on this subject last August, appointments have not significantly increased the diversity of the Bench. Different factors may be at play. These candidates may be less likely to apply. Or perhaps they apply, but they aren’t “known” by the Judicial Advisory Committee members, so they’re less likely to be recommended. We simply don’t have enough information to know. For that reason, I urge you to make the appointment process more transparent.” Letter from the President of the Canadian Bar Association, Fred Headon, available on-line at http://www.cba.org/CBA/submissions/pdf/14-13-eng.pdf.

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judges.78 In contrast, the current Canadian government has been recently chastised for its disregard of diversity in judicial appointments.79 It has been accused of “deliberate disregard” of diversity, particularly in the context of gender and race.80

Representativeness continues to be a contested value in Canada. The value representativeness is most at issue in the appointments process and we will return to it in our evaluation in that section.

(6) Efficiency

In Canada, there is increasing implicit recognition of efficiency as a foundational value for the administration of justice but it has not risen to the level of explicit recognition found in the preceding values. It finds expression in annual reports by courts and positive statements by judges about improvements in court efficiency etc.81 Efficiency may be implicitly accepted as a value through the discussion of the importance of the timeliness of cases being heard, reduction of backlog and timeliness of release of decisions after hearing.82 Some judges have been reprimanded for their dilatoriness in releasing their decisions.83

In recent years many Canadian governments, both federal and provincial, have become increasingly concerned about their budget deficits and this has lead them to emphasize the importance of efficiency, including the efficiency of the court processes. This has resulted in some significant tensions, a point we will return to in Part III, Resources.

78 The Rt. Hon. Beverley McLachlin, P.C., “Judging: the Challenges of Diversity,” Judicial Studies Committee Inaugural Annual Lecture, Edinburgh, Scotland, June 2012, available online at http://www.scotland- judiciary.org.uk/Upload/Documents/JSCInauguralLectureJune2012.pdf, at 17. 79 See e.g. Rosemary Cairns Way, “Deliberate Disregard: Judicial Appointments under the Harper Government” (2014) 67 Supreme Court Law Review (2nd Ser.) 1; Rosemary Cairns Way, Adam Dodek, Carissima Mathen & Lorne Sossin, “Forget MacKay, a woman’s place is on the bench” (20 June 2014) The Globe and Mail, online: http://www.theglobeandmail.com/globe-debate/forget-mackay-a-womans-place-is-on-the-bench/article19256607/. 80 See e.g. Rosemary Cairns Way, “Deliberate Disregard: Judicial Appointments under the Harper Government” (2014) 67 Supreme Court Law Review (2nd Ser.) 1. 81 See e.g. Supreme Court of Canada, Statistics 2003 to 2013, “Introduction”, online: http://www.scc-csc.gc.ca/case- dossier/stat/index-eng.aspx; The Rt. Hon. Beverley McLachlin, PC, “The Challenges We Face”, Remarks of Beverley McLachlin, P.C. Presented at the Empire Club of Canada, Toronto, March 8, 2007, online: http://www.scc-csc.gc.ca/court-cour/judges-juges/spe-dis/bm-2007-03-08-eng.aspx; The Hon. George Strathy, Opening of the Courts 2014, Remarks of the Honourable George R. Strathy, Chief Justice of Ontario (Toronto Court House, September 9, 2014) (“Notwithstanding these vacancies, the Court of Appeal continued to hear cases and release judgments in a timely manner. Most appeals were heard within five months of perfection and almost all of the court's reserve judgments were released within a targeted six-month period.”). 82 Court of Appeal for Ontario, Annual Report for 2013 (Toronto: Court of Appeal for Ontario, 2014) 14, online: http://www.ontariocourts.ca/coa/en/ps/annualreport/2013.pdf (“The overall volume of cases received by the Court of Appeal for Ontario in 2013 was relatively consistent with recent years. The Court continued to hear its cases and release its judgments in a timely manner. Most appeals were heard within five months of perfection. In 2013, the Court of Appeal reserved judgment on more than half of its appeals. The Court continued to release almost all of these reserve judgments within a targeted six-month time frame.”). 83 CJC “Update in the case of a complaint about a judge for delays in issuing judgments” October 21st, 2014.

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(7) Federalism

In addition to the above six values, we would also identify one additional value of particular importance in the regulation of the Canadian judiciary: federalism.

Canada is a federal state, and as explained in the Introduction to this chapter, the division of powers between federal and provincial governments is an important constitutional factor in the regulation of the Canadian judiciary. However, federalism is also an important normative value that impacts the regulation of the judiciary in many ways in terms of processes, resources and outcomes.

Federalism has been a fundamental since the creation of modern Canada in 1867 which is known as “Confederation” – literally the coming together of separate political entities in a federation. The preamble to the Constitution Act, 1867 which created modern Canada expresses the desire of these political entities “to be federally united into One Dominion…”84 The Supreme Court of Canada has recognized federalism as an “unwritten constitutional principle” -- one of the foundational principles which “dictate major elements of the architecture of the Constitution itself and as such its lifeblood.” 85

In Canada, federalism involves the sharing or “division of powers” between two levels of government: federal and provincial. The Canadian Constitution assigns each level specific “spheres of jurisdiction”.86 Disputes over these divisions of power were the defining feature of Canadian constitutionalism between 1867 and 1982 when Canada enacted a constitutionally- entrenched bill of rights.87 Federalism frames, permits and restricts the regulation of judges in Canada in different ways.

The Canadian judiciary has always played a role in refereeing the division of powers between federal and provincial levels of government. In a moment of rhetorical flourish, the Supreme Court of Canada asserted that the federalism principle has “from the beginning been the lodestar by which the courts have been guided”.88

As we shall see, the federalism principle does not only impact the work of the judges in deciding cases, but impacts the regulation of judges in several areas: Processes (Appointments); and Resources (all).

III. Processes

Processes are the institutional mechanisms and procedures that are put in place to establish, maintain, channel or corral a judiciary. In the Introduction to this book, we identified ten such

84 Constitution Act, 1867, Preamble, 30 & 31 Victoria, c. 3 (U.K.). 85 Quebec Secession Reference, [1998] 2 SCR 217 at para. 51. 86 Quebec Secession Reference, [1998] 2 SCR 217 at para. 51. 87 Adam Dodek, The Canadian Constitution (Toronto: Dundurn, 2013) ___. 88 Quebec Secession Reference, [1998] 2 S.C.R. 217 at para. 56 (“In interpreting our Constitution, the courts have always been concerned with the federalism principle, inherent in the structure of our constitutional arrangements, which has from the beginning been the lodestar by which the courts have been guided.”).

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processes. We will apply each to Canada but we will emphasize the following: (1) institutional relations; (2) appointments processes; (3) complaints and discipline processes.

(1) Institutional Relations: The Conundrum of the

As a parliamentary system, Canada does not have a formal separation of powers between the legislative, executive and judicial branches. However the Supreme Court of Canada has recognized the functional separation of powers between the three branches and the normative significance of such a separation.89 It has stated: “It is fundamental to the working of government as a whole that all these parts play their proper role. It is equally fundamental that no one of them overstep its bounds, that each show proper deference for the legitimate sphere of activity of the other.”90 More specifically, it has asserted that:

Our Court has strongly emphasized and vigorously applied the principle of separation of powers in order to uphold the independence of the judiciary … In that context, the principle was viewed as a shield designed to protect the judiciary in order to allow it to discharge its duties under the Constitution with complete independence and impartiality. Nothing less was required to maintain the normative ordering of the Canadian legal system.

However, the reality of separation of powers is more complicated than the theory. In this section we focus on two sub-issues: 1) the reference procedure and 2) communications between the judiciary and the executive. a) References

In Canada, the Supreme Court has played an acknowledged role in resolving highly-political issues. This has been particularly through the court’s reference function which allows the federal government to refer virtually any question of its choosing to the Supreme Court for an “advisory opinion”. Provinces have the same power with their provincial courts of appeal and the Supreme Court Act then gives them the automatic right to appeal those decisions to the Supreme Court. This reference jurisdiction is seen as “an important and distinguishing feature of the Canadian Constitution.”91 There have been many significant reference cases over the years. In the , 1981, the federal government under Prime Minister Trudeau wanted to patriate the Constitution, creating a domestic amending formula and entrenching the Canadian Charter of Rights and Freedoms. The government asserted that it would proceed unilaterally if consent form the provinces was not obtained. Three provinces directed references to their Court of Appeal, asking whether the consent of the provinces was required at law. On appeal from a variety of answers, the Supreme Court held that although the consent was not required as a

89 Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3; Newfoundland (Treasury Board) v. Newfoundland and Labrador Assn. of Public and Private Employees (N.A.P.E.), 2004 SCC 66, [2004] 3 S.C.R. 381; Fraser v. Public Service Staff Relations Board, [1985] 2 S.C.R. 455 at 469-70. 90 New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), [1993] 1 S.C.R. 319 at 389. 91 Carissima Mathen, “’The question calls for an answer, and I propose to answer it’: The Patriation Reference as Constitutional Method” (2011) 54 SCLR (2nd) 143 at 144.

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“matter of law” and that there was no “legal barrier”, it was a “matter of convention” that amendments to the Constitution require a substantial degree of provincial consent. In the Quebec Secession Reference, 1988, the Supreme Court looked at the legality of a unilateral secession of the Province of Quebec under the Constitution Act, 1867 and under international law. The Court determined that unilateral secession was not legal, but with a clear referendum in favour of independence, the rest of Canada would have “basis to deny the government of Quebec to pursue secession” and therefore would have to negotiate. Both sides were satisfied with this result because it made clear that unilateral secession was not supportable, but it also validated Quebec’s referendum strategy. More recently, in Reference re Senate Reform, 2014, the government of Canada asked the court whether Parliament could unilaterally implement a framework for consultative elections for appointments to the Senate, unilaterally fix terms for the senators and unilaterally remove the constitutional requirement that Senators must own land worth $4,000 in the province for which they were appointed, and to what degree was provincial consent required for any of these changes. For the real property requirement, the court stated that resolution was required of the Quebec legislative assembly. However, the abolition of the senate requires a unanimous federal-provincial consensus of the Senate, the House of Commons and the legislative assemblies of all Canadian provinces.92 In the eyes of some the reference process inevitably impugns the independence and impartiality of the judiciary.93 However, others acknowledge that Supreme Court decisions in references are often “celebrated in many quarters as acts of great wisdom and statecraft. The Court is often complimented for the political judgment it exercises in the context of the reference power.” 94 b) Communications between the judiciary and the executive

The separation of powers does not mean that each branch works in isolation and does not communicate with each other. To the contrary, strong lines of communication do, and should, exist between the judicial and the executive branches. In theory, the executive and the judicial branches should work together in a manner that promotes the efficacy of judicial administration while respecting judicial independence and impartiality. In many Canadian jurisdictions, there are often regularly-scheduled meetings between the Chief Justice and the Minister of Justice in order for both to make the other aware of general issues relating to the administration of the court or of the administration of justice generally.95 Such meetings are both necessary and

92 Reference re: Resolution to Amend the Constitution, [1981] 1 SCR 753, 1 SCJ 58, [Patriation Reference]; Reference re Secession of Quebec, [1998] 2 SCR 217, [Secession Reference]; Reference re Senate Reform, 2014 SCC 32, [2014] 1 SCR 704, [Senate Reform].

93 [e.g. Hogg, Huscroft]. 94 Grant Huscroft, “Politics and the Reference Power”, supra note ___ at 1. Huscroft argues that the reference power has a “distorting effect on the political processes and the role of the [Supreme] Court.” He believes that many of these disputes are more properly dealt with by the executive branch of government and the legislature. Ibid. 95 Some provincial statutes delineate the respective roles of the Chief Justice of the court and of the Minister of Justice regarding the court. (See e.g. Courts of Justice Act, RSO 1990, c. C-43, s. 72 and 77.) Some courts have developed Memorandum of Understanding (MOU) between the court and the Ministry of Justice. (See Memorandum of Understanding between the Chief Justice of the Superior Court of Justice of Ontario and the Attorney General of Ontario, dated May 5, 2008, online: http://www.ontariocourts.ca/scj/news/mou/; ) There are no similar statutory or MOUs for federal courts.

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positive because of the shared responsibility between the executive and the judiciary in the administration of justice.96 However, as we will argue in Part III, these relations can sometimes become strained when it comes to discussions on resources.

It is also a strong constitutional convention that members of the executive do not communicate with judges or their staff about pending cases. This has crystallized as a constitutional convention in light of The Judges Affair in 1976 when three cabinet ministers had communicated directly with judges about pending cases.97 Such communications are seen as a direct affront to judicial independence because they may be, or may be perceived to be, an attempt to influence the judge’s impartial decision making. Since The Judges Affair, the federal government issued and reissued a directive prohibiting such ex parte communications.98

However, despite the consolidation of these understandings and conventions, one recent incident illuminates the delicacy of communications between the executive and the judiciary: the failed appointment of Justice Marc Nadon to the Supreme Court of Canada and its fallout.99

In the summer of 2013 the federal government had a process underway to select a new Supreme Court Justice. As part of this process, the Minister of Justice consulted with the Chief Justice of Canada about the needs of the court. Traditionally, the Chief Justice would have discussed the strengths and weaknesses of the current composition of her court in terms of subject matter, expertise and the type of cases that come before the court. For example, the judge who was being replaced was a criminal law expert. Given that a high percentage of the cases at the Supreme Court involve criminal law, the Chief Justice might well have expressed a desire for the need for a judge with criminal law background. There may have been other areas of expertise that the Chief Justice might have opined on. Such conversations do not imperil judicial independence or impartiality because they do not relate to pending cases but rather to the needs of the court as an institution.

Further, in July 2013, the Chief Justice was contacted by the Supreme Court Selection Panel and was again consulted. This time she was reportedly given the names on the list of candidates provided by the Minister of Justice to that Selection Panel.100 According to media reports, there were five names on the list which the Selection Panel had to pare down to three to submit back to the Minister of Justice for the Prime Minister’s ultimate selection.101 After the Chief Justice was consulted by the Selection Panel, she contacted the Minister of Justice to express concerns and attempted to contact the Prime Minister to reiterate those concerns. However, the Prime Minister refused to speak with the Chief Justice.102

96 The staff that work for the courts are public servants and they must collaborate closely with officials in the Ministry of Justice. 97 Cite to Andrew Heard, Canadian Constitutional Conventions: The Marriage of Law and Politics, 2nd ed. (Toronto: Oxford University Press, 2013). 98 Cite and see also Code of Ethics at __. 99 A more detailed explanation can be found in Adam M. Dodek, “Reforming the Supreme Court Appointment Process, 2004-2014: A Ten-Year Democratic Audit” (2014) 67 Supreme Court Law Review (2nd Ser.) 111 at 111- 114. 100 Cite. 101 Cite. 102 Cite.

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Nearly two months later, the Prime Minister announced the nomination of Federal Court of Appeal Justice Marc Nadon to the Supreme Court. The day after a quick and largely superficial parliamentary hearing lasting two hours, the Prime Minister officially named Justice Nadon to the Supreme Court. He was sworn in several days later and that afternoon a court challenge was launched to his appointment on the grounds that the relevant statute did not permit a sitting Federal Court judge to fill one of the three designated Quebec seats.103 This was an unprecedented challenge and the federal government responded by amending the relevant legislation and directing a reference to the Supreme Court of Canada. On March 21, 2014, the Supreme Court held that both the amendment to the statute and the appointment of Justice Nadon were invalid.104 The government never raised an issue of the propriety of the Chief Justice’s actions before the decision. Almost six weeks after the decision, in May 2014, the Prime Minister accused the Chief Justice of acting “inappropriately” in July 2013 in contacting the Minister of Justice and in attempting to speak with him. The Minister of Justice repeated these allegations as did other members of the government.105

The Prime Minister and the Minister of Justice drew a parallel between what the Chief Justice had done and the prohibition on a minister calling a judge about a case. However, this parallel was inaccurate in several ways. First, when the Chief Justice contacted the Minister of Justice in July 2013, there was no “case”. There was reportedly a list of five candidates, three of whom were Federal Court judges whose qualifications may have been questioned. Second, the prohibition on members of the executive contacting judges about pending cases relates to the unique nature of adjudication and the prohibition on ex parte communications. In contrast, there is no such bar to the appointment process of Supreme Court judges. There is no formal process and it is assumed that both the Minister of Justice and the Prime Minister had many “ex parte” communications with many people about the appointment.

The attack on the Chief Justice of Canada by the Prime Minister was unprecedented. It was universally condemned by the opposition, legal associations, the media and also by the International Commission of Jurists.106 It is likely to have damaged relations between the judicial and the executive branches because this Chief Justice and her successors and her colleagues around the country are likely to be far more reticent to speak with the political ministers responsible for their courts, lest such communications be politicized for partisan purposes.107

The foregoing discussion of communications in the context of judicial appointments serves as a bridge to the next key process: appointments.

103 Put wording in a footnote. 104 Cite decision. 105 Cite. 106 Cite. 107 This incident also impaired the efficient operation of the Court in the short term because it left the Court short staffed for almost a year.

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(2) Appointments processes

The process for federally-appointed judges is probably the most contentious process issue in the regulation of the judiciary in Canada. It raises issues of independence, impartiality and representativeness.108

All federal judges are appointed by the executive. The Prime Minister selects Supreme Court justices and chief justices of federal courts, and provincial superior courts. The Minister of Justice selects all other justices. Both have tremendous discretion. The statutory qualifications are minimal: a federally-appointed judge must have a minimum of 10 years of legal experience. There are no criteria for promotion to higher courts or to administrative positions such as Regional Senior Justice, Associate Chief Justice or Chief Justice. For appointments of new justices to courts other than the Supreme Court, the Minister of Justice is aided by “Judicial Advisory Committees (JACs) whose role is to review candidates’ applications, check references and deem the candidate either “recommended” or “unable to recommend.”109 For decades, the judicial appointments process for federally-appointed courts below the Supreme Court has been criticized as highly partisan.110 The concern has been that candidates who have connections to the governing political party tend to be the ones who are appointed.

More specifically, the Supreme Court appointment process could hardly be described as a process. Until 2004, it was a completely unknown, closed process that allowed for unbridled executive fiat. However, despite the lack of transparency, it was generally viewed as producing

108 The appointment process also raises issues of transparency and accountability, but for the political branch appointing judges, not for the judiciary as an institution. See generally Adam M. Dodek, “Reforming the Supreme Court Appointment Process, 2004-2014: A Ten Year Democratic Audit” (2014) 67 Supreme Court Law Review (2nd Ser.) 111. Concerns about federalism have been raised in terms of the appointment process to the Supreme Court of Canada, but those have waned over the last decade. For analyses of the Supreme Court of Canada appointment process from a federalism perspective see e.g. Erin Crandall, “Intergovernmental Relations and the Supreme Court of Canada: The Changing Place of the Provinces in Judicial Selection Reform” in Nadia Verrelli, ed., The Democratic Dilemma: Reforming Canada’s Supreme Court (Montreal & Kingston: Institute for Intergovernmental Relations, 2013) 71; F.C. DeCoste, “The Jurisprudence of ‘Canada’s Fundamental Values’ and Appointment to the Supreme Court of Canada” in Nadia Verrelli, ed., The Democratic Dilemma: Reforming Canada’s Supreme Court (Montreal & Kingston: Institute of Intergovernmental Relations, 2013) 87; and Eugénie Brouillet and Yves Tanguay, “The Legitimacy of Constitutional Arbitration in a Multinational Federative System: The Case of the Supreme Court of Canada” Nadia Verrelli, ed., The Democratic Dilemma: Reforming Canada’s Supreme Court (Montreal & Kingston: Institute of Intergovernmental Relations, 2013) 126.

109 Office of the Commissioner for Federal Judicial Affairs Canada, “Process for an Application for Appointment”, online: http://www.fja.gc.ca/appointments-nominations/process-regime-eng.html. 110 See e.g. Jacob S. Ziegel, “Merit Selection and Democratization of Appointments to the Supreme Court of Canada” (June 1999) 5:2 Choices 3; Jacob Ziegel, “Promotion of Federally Appointed Judges and Appointment of Chief Justices: The Unfinished Agenda” in Adam Dodek & Lorne Sossin, eds., Judicial Independence in Context (Toronto: Irwin Law, 2010) 151; Troy Riddell, Lori Hausegger, and Matthew Hennigar “Federal Judicial Appointments: A Look at Patronage in Federal Appointments Since 1988 (2008) 58 University of Toronto Law Journal 39; Peter Russell & Jacob Ziegel “Federal Judicial Appointments: An Appraisal of the First Mulroney Government's Appointments and the New Judicial Advisory Committees” (1991) 41 University of Toronto Law Journal 4; F.L. Morton “Judicial Appointments in Post-Charter Canada: A System in Transition” in Kate Malleson & Peter Russell, eds., Appointing Judges in an Age of Judicial Power: Critical Perspectives from around the World (Toronto: University of Toronto Press, 2006) 56.

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relatively high quality appointments.111 Beginning 2004, the process has been reformed on an ad-hoc basis to involve parliamentarians to a greater extent.112 In the course of the following decade five nominees faced a parliamentary confirmation process. Then there was a retreat in 2014.

Some have argued that judicial independence requires a non-partisan appointments process.113 The argument is made that judicial independence demands that the judicial appointment process must be insulated from partisan politics in order to ensure public confidence in judicial impartiality.114 Moreover, it is further asserted that judicial independence requires that the judicial appointment process “leave no room for specific interests or for groups that are likely to defend a specific position in certain types of cases before the courts” because the public “will not perceive judges as impartial if their appointment process gives a particular voice to specific interest groups.”115 Such remarks were made in the context of the federal government’s change in 2006 to the composition of the judicial advisory committees to include a law enforcement representative. The concern that the inclusion of a designated law enforcement offer on this committee would threaten judicial independence was echoed by the Canadian Bar Association and by the Canadian Judicial Council.116 Such a conception of judicial independence would significantly expand the current Canadian understanding. Taking the appointment power out of the hands of the executive may be good policy for many reasons, but we do not believe that current understandings of judicial independence require it. Indeed, the three central tenets of judicial independence - security of tenure, security of remuneration and administrative independence – exist precisely so that judges may exercise impartiality without concern of any past affiliations or sense of duty to those who appointed them. So while proper processes are important, we believe that the issue of who is appointed is far more acute in terms of judicial independence than how they are appointed.

Subsequent to the Nadon debacle (which we discussed in the previous section) the federal government did a volte face on parliamentary involvement in the appointments process. Whereas Justice Nadon had faced an (admittedly superficial) parliamentary interrogation process, the appointments of two subsequent candidates by the government in mid/late 2014, Justices Gasçon and Côte, were simply announced by the Prime Minister and sworn in without any parliamentary participation. The latter appointment in particular raised some questions because several years previously, while still a lawyer, Ms. Côte had been involved in litigation with the Revenue Québec over her claimed “professional clothing and personal care’ expenses, totaling more than

111 need a source to support this claim. 112 This process is described and evaluated in detail in Adam M. Dodek, “Reforming the Supreme Court Appointment Process, 2004-2014: A Ten Year Democratic Audit” (2014) 67 Supreme Court Law Review (2nd Ser.) 111. Cite also to Jacob Ziegel 113 See Sébastien Grammond, “Une loi pour dépolitiser le processus de nomination des juges », (2008) 1 Journal of Parliamentary and Political Law 193. 114 Grammond, ibid. and Ziegel, ___. 115 Grammond, ibid. 116 See Canadian Judicial Council, Press Release, “Canadian Judicial Council calls on government to consult on proposed changes” November 6, 2006, online: https://www.cjc- ccm.gc.ca/english/news_en.asp?selMenu=news_2006_1109_en.asp; and Letter from J. Parker McCarthy, Q.C., President, Canadian Bar Association to the Honourable , Q.C., Minister of Justice and Attorney General of Canada, dated November 16, 2006, online: http://www.cba.org/CBA/submissions/pdf/06-51-eng.pdf

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$200,000 over a three year period. The dispute had been resolved by an out-of-court settlement in 2012. 117 The matter only became public after Ms. Côte’s appointment. Others have also raised questions about Ms. Côte’s tactics as independent counsel in the discipline proceedings against Associate Chief Justice Lori Douglas (to be discussed in Part IV 6).118 These might be precisely the sort of issues that could be raised ex ante through a parliamentary process.119

Recent Supreme Court of Canada appointments have also sparked debates about the importance of representativeness in judicial appointments. Such discussions usually focus on gender but have also included discussion about the importance of having an Aboriginal justice, given the centrality and uniqueness of Canada’s Aboriginal population in the Canadian legal system. Canada has never had an Aboriginal justice on the Supreme Court of Canada.120 Similarly in the last few years a debate has broken out as to whether Supreme Court of Canada judges should be functionally bilingual and bijural.121

By contrast to the SCC, some provinces explicitly recognize representativeness as important in the judiciary. Thus, in the statute that creates Ontario’s Judicial Appointments Advisory Committee, that committee is instructed to recognize “the desirability of reflecting the diversity of Ontario society in judicial appointments.” 122 The policy of Ontario’s JAAC states: “The Judiciary of the Ontario Court of Justice should be reasonably representative of the population it serves. The Committee is sensitive to the issue of under-representation in the judicial complement of women, visible, cultural, and racial minorities and persons with a disability. This requires overcoming. However, professional excellence is still the paramount criterion in assessing judicial candidates.”123 Similarly in the Yukon, legislation provides that the bench should be "demographically representative of the community it serves.”124 There is no parallel requirement for federally-appointment judges. In a review of 107 appointments made by the current government, one scholar has argued that there has been a “deliberate disregard for

117 FN Add. 118 See e.g. S. Drummond “I can never be a judge” Winnipeg Free Press 29 November 2014. 119 See also, S. Fine, Key questions in light of Justice Côte’s appointment Globe & Mail, Novenber 29, 2014 A12. 120 See Indigenous Bar Association, “Respecting Legal Pluralism in Canada: Indigenous Bar Association Appeals to Harper Government to Appoint an Aboriginal Justice to the Supreme Court of Canada” in Nadia Verrelli, ed., The Democratic Dilemma: Reforming Canada’s Supreme Court (Montreal & Kingston: Institute for Intergovernmental Relations, 2013) 65; Indigenous Bar Association, “Indigenous Bar Association Urges Prime Minister Harper to Remove Barriers to Judicial Appointments for Indigenous Judges” in in Nadia Verrelli, ed., The Democratic Dilemma: Reforming Canada’s Supreme Court (Montreal & Kingston: Institute for Intergovernmental Relations, 2013) 67; Lorne Sossin, “Should Canada Have a Representative Supreme Court?” in Nadia Verrelli, ed., The Democratic Dilemma: Reforming Canada’s Supreme Court (Montreal & Kingston: Institute for Intergovernmental Relations, 2013) 27; Lorne Sossin, “Judicial Appointment, Democratic Aspirations, and the Culture of Accountability” (2008) 58 UNBLJ 11. 121 See e.g. M. Shoemaker, “Bilingualism and Bijuralism at the Supreme Court of Canada” Parliamentary Review, (Summer 2012) 30. 122 Courts of Justice Act, RSO 1995, c. C-43, s. 43(9)(4). 123 Ontario Judicial Appointments Advisory Committee, Policy and Procedures, Policy 1.0 Criteria for Evaluating Candidates, online: http://www.ontariocourts.ca/ocj/jaac/policies-and-procedures/policies-and-process/ 124 Territorial Court Act, S.Y.T., c. 26, s. 9(c)(i).

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representativeness.”125 These concerns were intensified with the appointment of two white male academics with explicitly conservative ideologies to the Ontario Courts in late 2014.126

(3) Appellate mechanisms

Appellate mechanisms fulfill a vital regulatory function, in that they enable or allow parties to seek redress if they are concerned that a judge has made a mistake. In Canada, all judicial decisions (except those from the Supreme Court of Canada) are potentially subject to appeal, although there is not necessarily a right of appeal of every decision that a judge makes. The Supreme Court of Canada oversees the entire judicial system in Canada and serves a supervisory function over all courts: federal and provincial. Ordinarily, appeals from decisions of provincial courts will make their way up the judicial hierarchy from provincial courts to federally-appointed and provincially administered courts, to provincial courts of appeal and then to the Supreme Court. However, the Supreme Court of Canada has jurisdiction and discretion to hear appeals from any final or other judgment127 and it has exercised its discretion to hear appeals directly from a final order of a the lowest level of court on occasion.128

Appellate mechanisms are seen as an important method of accountability for judges, as has been recognized by the Superior Court Judges Association129 and referred to above in the Introduction to this chapter. Statistics indicate that [details to follow [xxx]] There are strict time limits in place for applying for “leave” (or permission) to appeal and for filing a notice of appeal in cases where there is a right to appeal. These time limits are strictly enforced and help promote efficiency. There are very short time periods for seeking to appeal interlocutory orders which are motivated by efficiency concerns: appealing decisions within a proceeding may halt or slow down the proceedings, resulting in delays, inefficient use of judicial resources, etc. For appeals of final decisions, more time is given to the parties to exercise their right to appeal or to seek leave to appeal. [In a time of concern over the length of proceedings and delay, thought should be given to reducing the applicable time periods.]

All courts (except the Supreme Court of Canada) provide reasons for refusing to grant an appeal where leave of the court is required. Such reasons promote transparency as well as efficiency because they provide a body of caselaw to guide litigants and judges as to the grounds upon which leave will be granted in similar cases. However, the Supreme Court of Canada – unlike the U.S. Supreme Court and the new Supreme Court of the United Kingdom130 – never provides

125 Cairns-Way, Representativeness, supra note xxx. 126 “Tories Name Conservative Law Professors as Judges” Globe and Mail Dec. 17, 2014 but see “Judges Transcend Political Labels” Globe and Mail Dec. 19, 2014. 127 Supreme Court Act, RSC 1985, c. S-26, s. 40. 128 See e.g. Dagenais v. Canadian Broadcasting Corporation, [1994] 3 S.C.R. 835; R. v. Adams, [1995] 4 S.C.R. 707; and R. v. Mentuck, 2001 SCC 76, [2001] 3 S.C.R. 442. 129 Canadian Superior Court Judges Association: http://www.cscja-acjcs.ca/judges_accountable-en.asp?l=5. 130 CJS Knight, “The Supreme Court Gives its Reasons” (2012) 128 LQR 477.

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reasons for refusing leave in a case.131 This has been criticized on grounds of transparency and accountability.132

(4) Continuing educational and training

Continuing education and training are an important forum of ex ante judicial regulation in that, if properly designed and delivered, this can assist judges to develop the relevant knowledge, skills and attitudes necessary for the competent performance of their responsibilities. This is especially important in a jurisdiction like Canada where there is no specialized training required to become a judge. Any lawyer who meets the statutorily eligibility requirements of ten years as a lawyer, regardless of the nature of their legal experience, is eligible to become a judge.133 However, on appointment, judges are strongly encouraged (but not required) to attend “New Judges School” which is a six day programme.134

Judicial Education is very much a work in progress in Canada. Historically, there was some resistance to judicial education within the judicial ranks. For some, the resistance was general. Continuing education was seen as unnecessary and redundant. For others it was particular. In the 1990s, there was hostility to, and controversy over, the introduction of “social context education” by the National Judicial Institute.135 Such programs focused on the impact of gender on judging, gender bias, race, and family violence. They reflected an increasing recognition that one’s experiences and identity make a difference to an understanding of social relations and that judicial education can serve as a counterbalance to explicit and implicit biases in the judicial system.136

The trigger for such change in consciousness in Canada was the impact of the Canadian Charter of Rights and Freedoms and the constitutional entrenchment of equality in 1982. Writing several years after 1982, future Supreme Court Justice Rosalie Silverman Abella made the simple but compelling point that “[e]very single one of us has something to learn about equality and most of us have a great deal to learn. Unless the legal and judicial professions admit to this pedagogical need, we will be a profound disappointment to the public, most of whom from their less advantaged life-styles know far better than we the urgent need for an equality law.”137

131 E. Meehan et al., Supreme Court of Canada Manual, 3-1. 132 See egs. L. Sossin, “Review: Tournament of Appeals: Granting Judicial Review in Canada” (2005) 30 Queen’s L.J. 900; D. Cooney, “An Absence of Reason: Why the Supreme Court of Canada Should Justify Dismissing Applications for Leave to Appeal” (2012) 70 U.T.F.L. Rev. 41. 133 See Judges Act, RSC 1985, c. J-1, s. 3; Federal Courts Act, RSC 1985, c. F-7, s. 5.3; and Supreme Court Act, RSC 1985, c. S-26, ss. 5,6. 134 NJI Course Calendar at p. 28. 135 See Rosemary Cairns Way, “Contradictory or Complementary? Reconciling Judicial Independence with Judicial Social Context Education” in Adam Dodek & Lorne Sossin, eds., Judicial Independence in Context (Toronto: Irwin Law, 2010) 220. 136 Rosemary Cairns Way, “Contradictory or Complementary? Reconciling Judicial Independence with Judicial Social Context Education” in Adam Dodek & Lorne Sossin, eds., Judicial Independence in Context (Toronto: Irwin Law, 2010) 220 at 231. 137 Rosalie Silverman Abella, “The Dynamic Nature of Equality” in Sheilah Martin & Kathleen Mahoney, eds., Equality and Judicial Neutrality (Toronto: Carswell, 1987) at 3.

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Despite the logic of this argument, there was strong judicial resistance, led in part by the Chief Justice of Canada at the time.138 Others, however, have argued that education protects and fosters the core obligation of impartiality and note that all judicial programmes are voluntary.139

But in 2004 the new Chief Justice of Canada stated, “[j]udicial education is an essential feature of strong judicial institutions, anywhere in the world…judicial education can promote and uphold respect for the rule of law; and sustain understanding as we encounter each other in an increasingly diverse world.”140 Four years later, in 2008, the Canadian Judicial Council issued a set of judicial guidelines which both promoted and defended judicial education. These guidelines state:

1. The preservation of public confidence and trust in the Canadian judiciary as an institution depends upon Canadian judges maintaining high standards in the performance of their judicial work.

2. Continuing competence and the achievement of excellence require judges to participate in ongoing professional education.

3. The first priority of courts is to provide the highest quality judicial services to the public. The primary obligation of a judge is to hear cases and render decisions in a timely manner, impartially and consistent with the law and the evidence.

4. Participation in judicial education will assist judges in better fulfilling their primary obligation, as well as other aspects of their judicial role.141

Canada now has a well-developed, professionalized system of continuing education for federally-appointed judges. The National Judicial Institute – the body charged with developing and delivering judicial education for Canada’s federally-appointed judges142 – is an acknowledged international leader in judicial education.143

138 Cite. Lamer article 139 Cite Cairns-Way. 140 The Right Honourable Beverley McLachlin, C.J.C., Remarks on Occasion of the Second International Conference on the Training of the Judiciary, Ottawa, Canada, November 2004 quoted by Rosemary Cairns Way, “Contradictory or Complementary? Reconciling Judicial Independence with Judicial Social Context Education” in Adam Dodek & Lorne Sossin, eds., Judicial Independence in Context (Toronto: Irwin Law, 2010) 220 at 221.

141 Canadian Judicial Council, “Judicial Education Guidelines for Canadian Superior Courts” (April 2008), online: https://www.cjc-ccm.gc.ca/cmslib/general/JEC-edu-guidelines-2008-04-finalE-revised-2009-09-final-E.pdf 142 The N.J.I. is not the only provider of judicial education programmes. Individual courts, both federal and provincial, have their own in-house judicial education committees who design and deliver programmes. Sometimes they partner with the N.J.I., sometimes they don’t. Also the Canadian Provincial Courts Judges Association hosts an annual education conference. 143 See generally National Judicial Institute, online: www.nji-inm.ca. Devlin, Kent and Lightstone, “The Past, Present and Future of Judicial Ethics in Canada” (20??) x legal Ethics x.

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Continuing education plays an important part in the professionalization of the judiciary; transfers responsibility for competence from the individual to the collective.144 Judicial education certainly furthers efficiency. It allows experts to develop a sustained and coordinated program of education rather than requiring individual judges to learn on their own. Especially when it comes to complex matters, continuing education may help judges avoid costly errors. Thus, in response to a public inquiry into wrongful convictions caused by flawed forensic pediatric pathology, the National Judicial Institute developed a Science Manual and associated programs to help judges deal with scientific evidence.145 Similarly, other educational programs focus on court management skills that would help streamline proceedings and promote efficiency.

However judicial education also needs to be evaluated against the other values we identified in Part II of this essay, especially independence, accountability, representativeness and transparency. For example, in the past, the Canadian Judicial Council defended judicial education in terms of public accountability.146 However, without a reporting requirement to the public, it is difficult to see where the accountability lies. For example, because CPD is not mandatory for judges, it might be helpful to know how many, and which, judges actually participate. As one scholar has asserted, the process of judicially-developed and judicially-run judicial education finds “a means of enhancing competence while balancing the competing precepts of independence and accountability. For the judiciary, the introduction of continuing judicial education is demonstrably more appropriate than the spectre of intervention by the executive.”147 Or again, given the fact that many judges work well into their senior years, it might be worth considering whether judges should be subject to a relicensing regime or a peer evaluation system.

Judicial education also raises questions of representativeness and transparency. In terms of representativeness, concerns have sometimes been raised about who gets to be “invited” to judicial education programmes. In terms of transparency, the content of such programs is not available to the general public.

(5) Ethical assistance programs and networks

Ethical support programs and networks, like CPD, might be understood as “soft regulation”: they are designed to enable and empower judges to do their job better. Canadian judges are able to obtain ethical advice through both formal programs and informal networks. Judges may seek advice informally from their colleagues on the bench, their Chief justices or not at all, preferring

144 Livingston Armytage, Educating Judges (Geneva: Kluwer International Publishing, 1990) 4 cited by Rosemary Cairns Way, “Contradictory or Complementary? Reconciling Judicial Independence with Judicial Social Context Education” in Adam Dodek & Lorne Sossin, eds., Judicial Independence in Context (Toronto: Irwin Law, 2010) 220 at 226.

145 See National Judicial Institute, Science Manual for Canadian Judges, online: https://www.nji- inm.ca/nji/inm/nouvelles-news/Manuel_scientifique_Science_Manual.cfm.

146 Canadian Judicial Council, Annual Report www.cjc-ccm.gc.ca 147 Livingston Armytage, Educating Judges (Geneva: Kluwer International Publishing, 1990) 5, 7 quoted by Rosemary Cairns Way, “Contradictory or Complementary? Reconciling Judicial Independence with Judicial Social Context Education” in Adam Dodek & Lorne Sossin, eds., Judicial Independence in Context (Toronto: Irwin Law, 2010) 220 at 226.

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to keep their own counsel.148 They may also seek assistance from the Ethical Principles for Judges, a fifty-three page guide prepared by the Canadian Judicial Council. It is to be noted that the guide emphasizes that its purpose is “advisory in nature” and “shall not be used as a Code or a list of prohibited behaviours.”149

For formal advice, federally-appointed judges may seek confidential advice from the Canadian Advisory Committee on Judicial Ethics.150 This committee is composed of 12 judges representing each region in Canada. Its members are appointed by a nominating committee composed of judges representing the Canadian Judicial Council and the Canadian Superior Court Judges Association, the body that represents the interests of Canada’s federally-appointed judges. The Committee’s role “is to give informal and confidential advice to any federally- appointed judge faced with or anticipating a question touching on judicial ethics or conduct.”151 The guiding principles of the process are anonymity and confidentiality. A judge may contact any member of the committee with a question, preferably in writing, although it is not required to be. The committee member who receives the inquiry then obtains the relevant factual background from the inquiring judge and presents the question together with the relevant background to the committee as a whole. The committee discusses the inquiry, by e-mail or telephone, and presents a response to the inquiring judge. If there is no unanimity, the committee will inform the inquiring judge of the divergent views. The committee works quickly and usually provides a response within days. The committee publishes its opinions annually on a secure judges-only network for federally-appointed judges which are also made available to provincially-appointed judges. The opinions are edited to ensure anonymity before posting and the inquiring judge may veto the posting of the opinion.152

While this ethical infrastructure fosters the values of judicial independence, and judicial impartiality and efficiency it may fall short on accountability, representativeness and transparency. There are two concerns. First, the membership of the committee is exclusively composed of judges. However, ethical decision-making is a very particular form of reasoning153 and judges could benefit from the assistance of some participants who have expertise in the field. Second, the ethics opinions are not available to the public. The reason proferred for not publicizing the opinions is to avoid “the potential for misunderstanding and distortion by non- judges who might mistakenly interpret the opinions as rulings on judicial conduct.”154 We do not find such arguments persuasive. Publishing these ethical opinions in a suitably anonymized form would promote the values of transparency and accountability, without impairing other values such as independence or impartiality.155 The model to follow is the Canadian Judicial Council

148 See generally Philip Bryden & Jula Hughes, “The Tip of the Iceberg: A Survey of the Philosophy and Practice of Provincial and Territorial Judges Concerning Judicial Disqualification” (2011) 48:3 Alberta Law Review 569. 149 EPJ p. 3. Some provincial courts do have a Code of Conduct for their judges. See e.g. Provincial Court of British Columbia, Code of Judicial Ethics, 1994. 150 See generally The Hon. J.C. Marc Richard, “The Canadian Advisory Committee on Judicial Ethics: a useful tool helping judges resolve ethical dilemmas” (Paper presented at the National Judicial Institute’s Seminar on Judicial Ethics, Vancouver, Canada, April 25, 2012) (cited with permission) (paper on file with authors). 151 Ibid. 152 Ibid. 153 See Devlin & Downie. “Public Interest Vocationalism: A Way Forward for Legal Education in Canada” in F. Westwood, ed., The Calling of Law (Ashgate 2014) p. 85. 154 Ibid. 155 In the United States anonymized ethics opinions are published. Cite sources.

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which publishes a synopsis of complaints received each year. The Council’s website has a database of all such complaints. Such transparency helps to foster public confidence in the judiciary.

(6) Complaints and discipline processes

Complaints and discipline processes are, obviously, “hard” regulation and give priority to the value of accountability. But they also need to factor in the values of independence, impartiality, transparency and efficiency. Unsurprisely, they are controversial because there is a tendency on behalf of individual judges to raise judicial independence or constitutional arguments as a shield against the judicial discipline system.

Legislation at the federal level and in all the provinces establish Judicial Councils which are vested with the authority to receive and investigate complaints against judges, to hold discipline hearings and recommend or impose discipline on judges. This is a self-regulatory process: all Canadian judicial councils are either composed exclusively of judges or dominated by them.156

Thus, at the federal level, the Canadian Judicial Council is composed of the Chief Justices and the Associate Chief Justices of all federally-appointed courts.157 It has the authority to investigate complaints about the conduct of federally-appointed judges in Canada. It cannot “investigate general complaints about the justice system, the courts, or the judiciary as a whole. It cannot change judicial decisions in court cases, compensate individuals, grant appeals, or address demands for a new trial.”158 In short, the Canadian Judicial Council does not serve an appellate function, rather it fulfills an educative and disciplinary function. A complaint about a judge’s conduct may be made by any member of the public, the federal Minister of Justice or a provincial Attorney General. The Council will review the complaint, determine whether it has jurisdiction (most complaints are about a judge’s decision rather than a judge’s conduct), investigate the complaint, seek the judge’s response if necessary and, in serious cases, refer the complaint for a full inquiry into the matter. The inquiry panel will hold a hearing, make findings and make a recommendation to the Council as a whole. The Council will then make a report to the Minister of Justice. In the most serious of cases, the Council can recommend to the Minister of Justice that Parliament remove the judge from office. The Canadian Judicial Council provides a high degree of transparency and accountability in its processes. It publishes an annual report of its activities which includes a synopsis of complaints received and how they were dealt with. The annual reports and these case histories are available

156 Some jurisdictions do have non judicial members, but they are always a small minority. See e.g. Ontario. Only the final steps involve the other branches of government: the Council makes a recommendation to the Minister of Justice to remove a judge if the Council feels it is warranted and then the Minister of Justice must decide whether to introduce a resolution in both houses of Parliament calling on members to vote for the removal of the Justice. Only once in Canada’s history, has the process reached this final stage. See Martin L. Friedland, A Place Apart: Judicial Independence and Accountability (Ottawa: Canadian Judicial Council, 1995) 77. 157 See Canadian Judicial Council, “About the Council”, online: https://www.cjc- ccm.gc.ca/english/about_en.asp?selMenu=about_main_en.asp. 158 Canadian Judicial Council, “Conduct of Judges”, online: https://www.cjc- ccm.gc.ca/english/about_en.asp?selMenu=about_conduct_en.asp.

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on the Council’s website. Inquiries are generally open to the public and their proceedings are published. The identity of judges against whom complaints are made is not public. Since the creation of the Canadian Judicial Council in 1971, there have only been 11 inquiries – formal discipline hearings – into the conduct of Canada’s approximately 1100 judges.159 Five of these have occurred over the past six years. Here we will discuss only three: Justice Theodore Matlow (2008);160 Justice Paul Cosgrove (2009);161 and Justice Lori Douglas (2009-2014).162 Each judge attracted the condemnation of their judicial peers on the Canadian Judicial Council for different reasons.

Justice Matlow used his judicial office to intervene in a local planning dispute in his neighbourhood. Then when an issue involving the same municipal government on an analogous matter came before his court, he refused to recuse himself. The Canadian Judicial Council was split on whether Justice Matlow should be removed from office. An Inquiry Committee had recommended Justice Matlow’s removal, but when that recommendation came before the Council as a whole, the majority of the council felt that a reprimand sufficed.163 Justice Matlow claimed immunity from sanction for political involvement on the grounds of the constitutional right to freedom of expression and freedom of association.164 In this case, the Canadian Judicial Council stated that “Judicial independence exists to ensure that citizens can access independent, impartial courts. Preserving impartiality is therefore key to the judicial role. It follows that certain limits on a judge’s freedom of expression and association are both reasonable and justified should a judge wish to continue in office…Consequently, a judge’s freedom of expression may be subject to the scrutiny of a judicial council to ensure that public confidence in the judiciary is maintained.”165 The Matlow affair is a cautionary tale about judicial involvement in politics.166

159 See Office of Federal Judicial Affairs, “Number of Federally-Appointed Judges as of October 1, 2014”, online: http://www.fja.gc.ca/appointments-nominations/judges-juges-eng.html [NTD: Update] and see Canadian Judicial Council, “Inquiry Committee Decisions”, online: https://www.cjc- ccm.gc.ca/english/conduct_en.asp?selMenu=conduct_inquiry_en.asp 160 Canadian Judicial Council, “Inquiry Committee regarding Mr. Justice Theodore Matlow”, online: https://www.cjc-ccm.gc.ca/english/conduct_en.asp?selMenu=conduct_inq_matlow_en.asp. 161 Canadian Judicial Council, “Inquiry Committee regarding the Honourable Paul Cosgrove”, online: https://www.cjc-ccm.gc.ca/english/conduct_en.asp?selMenu=conduct_inq_cosgrove_en.asp. 162 Canadian Judicial Council, “Inquiry Committee regarding the Honourable Lori Douglas”, online: https://www.cjc-ccm.gc.ca/english/conduct_en.asp?selMenu=conduct_inq_douglas_en.asp. 163 See Report of the Inquiry Committee concerning the Hon. P. Theodore Matlow, online: Canadian Judicial Council www.cjc-ccm.gc.ca/cmslib/general/CJC_20080528.pdf. The Canadian Judicial Council did not accept that recommendation, but decided to reprimand Matlow J. instead. See Report of the Canadian Judicial Council to the Minister of Justice (3 December 2008), online: Canadian Judicial Council http://www.cjc- ccm.gc.ca/cmslib/general/Matlow_Docs/Final%20Report%20En.pdf. 164 Canadian Charter of Rights and Freedoms, ss. 2(b) (freedom of expression) and 2(d) (freedom of association). 165 Canadian Judicial Council, Report of the Canadian Judicial Council to the Minister of Justice (3 December 2007) at paras. 82-83, online: https://www.cjc-ccm.gc.ca/cmslib/general/Matlow_Docs/Final%20Report%20En.pdf.

166 See John Honderich, “The Media and Judicial Independence” in Adam Dodek & Lorne Sossin, eds., Judicial Independence in Context (Toronto: Irwin Law, 2010) 559 at 561(quoting that “politics is to a judge as sex is to a celibate monk – something undoubtedly pleasurable and even important for mankind but alas, no longer to be indulged in.").

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Justice Paul Cosgrove came the closest that any Canadian judge has been to being formally removed from office in 40 years.167 The Canadian Judicial Council found that Justice Cosgrove had behaved in a completely biased and abusive manner in a high-profile criminal trial. It therefore recommended that the Minister of Justice initiate proceedings to remove him from office. Justice Cosgrove resigned from office on the eve of commencement of proceedings for his removal.

Finally, the Lori Douglas case has been plagued by lengthy delays as a result of an unprecedented number of procedural, jurisdictional and other legal issues being raised during the course of this judicial conduct proceeding.168 Justice Douglas – the Associate Chief Justice of the Manitoba Court of Queen’s Bench – was accused of being unfit for judicial office because prior to her appointment to the bench, she had collaborated with her husband in the harassment of a client of her husband, and because compromising photos of her were posted by her husband on a pornographic website. For six years the case was mired in controversy, internal dissent and procedural wrangling. The independent counsel resigned under protest. The Federal Court found that the first discipline panel was biased. The members of that panel resigned and a new panel was struck. In the midst of this process, the Canadian Judicial Council issued a Discussion Paper on significantly reforming its process.169 A Federal Court judge issued several interlocutory motions against the Inquiry Panel.170 Finally, a settlement was reached when Douglas ACJ offered to resign in mid-2015, and the Inquiry stayed the charges.171

As just indicated, the issuance of the Discussion Paper by the CJC suggests that the complaints and discipline process in Canada is likely to undergo some significant changes in the near future. One key concern is that there is no participation by members of the public in the process. If a complaint gets to an inquiry stage, the Minister of Justice may appoint one or more lawyers to be part of the Inquiry Committee.172 The suggestion of public participation of any sort in the judicial discipline process was strongly opposed by the former Chief Justice of Canada. In a 1996 article, he found “unpersuasive” that public participation could improve the quality of the decisions by introducing the views of the public to the process. He characterized public participation in the discipline process as amounting to “little more than window-dressing”.173

167 The only way to remove a federally-appointed judge from office is upon an “address” to both houses of Parliament. See Constitution Act, 1867, s. 99(1); Supreme Court Act, RSC 1985, c S-26, s9; Federal Courts Act, RSC 1985, c F-7, s 8(1). Effectively, the Minister of Justice must introduce an “address” in each of the two houses of Parliament calling on its members to remove the judge. The government has introduced such a motion once, but the judge resigned before it could be debated. No federally-appointed judge has ever been removed by this process, known as a “joint address” so it is unclear how exactly it would work. See Martin L. Friedland, A Place Apart: Judicial Independence and Accountability (Ottawa: Canadian Judicial Council, 1995) 77.

168 For further discussion, see Devlin and Wildeman, “Self Regulation on Steroids: The Canadian Judicial Council” (forthcoming).

169 See Canadian Judicial Council, “Canadian Judicial Council seeks the views of Canadians on judicial conduct” (26 March 2014), online: https://www.cjc-ccm.gc.ca/english/news_en.asp?selMenu=news_2014_0326_en.asp.

170 171 172 Judges Act, RSC 1985, c. J-1, s. 63(3). 173 The Rt. Hon. Antonio Lamer, P.C. “The Rule of Law and Judicial Independence: Protecting Core Values in Times of Change” (1996) 45 University of New Brunswick Law Journal 3 at 15-16.

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Similar arguments were made by Law Societies in Canada against the inclusion of non-lawyers in their discipline process. They have now recognized that such views are erroneous; public participation broadens the perspective of regulators who regulate in the public interest, whether they are lawyers or judges and enhances the legitimacy of the process. Public participation enhances both the openness of the proceedings by allowing “outsiders” into the process and enhances public accountability.174 There is no indication that such participation would threaten judicial independence or judicial impartiality. Indeed, the test for “reasonable apprehension of bias” in Canada asks “what would an informed person, viewing the matter realistically and practically -- and having thought the matter through – conclude”? 175 Thus, the protection of judicial impartiality would seem to invite informed public participation rather than preclude it.

(7) & (8) Relations and engagement with the public and with the media

Relations with the public and the media are a vitally important form of regulation because the public perception of both individual judges and the judiciary as an institution operates as a powerful incentive for appropriate conduct, both in and out of court.176

Canadian judges’ engagement with the public can be described as indirect and passive. It is passive because it largely consists of facilitating public access to judicial proceedings: i.e. allowing the public access to attend and observe judicial proceedings rather than judges going to the public and actively engaging with them. It is indirect because most judicial engagement with the public is filtered through the media. In contrast, Canadian judges relationship with the media is best described as constructive, facilitative and expanding. The Canadian judiciary now realizes the important role of the media in reporting on court proceedings and on the administration of justice generally. The Supreme Court of Canada has embraced the “open court principle” because it

is inextricably linked to the freedom of expression protected by s. 2(b) of the Charter and advances the core values therein . . . The freedom of the press to report on judicial proceedings is a core value. Equally, the right of the public to receive information is also protected by the constitutional guarantee of freedom of expression . . . The press plays a vital role in being the conduit through which the public receives that information regarding the operation of public institutions: . . . Consequently, the open court principle, to put it mildly, is not to be lightly interfered with.177

It is far less frequent to see the judiciary invoking judicial independence as a reason (or excuse) why it refuses to do something requested by the media, as the former Registrar of the Supreme

174 Cf. Hutchinson, supra at 102. 175Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369 at 394-95 (per de Grandpré J., dissenting, but not on this point) and adopted by Valente v. The Queen, [1985] 2 S.C.R. 673; R. v. Lippé, [1991] 2 S.C.R. 114; Ruffo v. Conseil de la magistrature, [1995] 4 S.C.R. 267; R. v. S. (R.D.), [1997] 3 S.C.R. 484. 176 Cite to Ethical Principles for Judges. 177 Vancouver Sun at para. ??.

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Court did in the 1970s in response to a media request to provide advance notice of when judgments were being delivered.178

There are numerous indicators of this increased openness.

The Supreme Court of Canada is itself open to public during the week for tours. It is perhaps somewhat symbolic that the Court is open on Canada Day – a statutory holiday – and the Chief Justice herself personally welcomes Canadians on Canada Day. This effort is symbolic of the Court’s desire and attempt to reach out more to the public that it serves.

Judges are far more willing to grant media interviews than they were in the past, although it is usually only Supreme Court justices and chief justices of other courts who are interviewed.

Courts are making greater efforts to facilitate the work of the media. The Supreme Court of Canada now provides advance notice of when it is delivering judgments. It has an Executive Legal Officer who provides briefings to members of the media on all cases. Members of the media can request a media “lock-up” in advance of the delivery of a judgment. The Executive Legal Officer also answers questions on background from members of the media. There is a media committee that liases with the Supreme Court and members of the bar about improving media access to the court. There is a trickle-down effect from the Supreme Court as lower courts have begun to adopt some of these measures.

Canadian judges have struggled with the application of the open courts principle, realizing that allowing physical access for members of the public to Canadian courtrooms does not reach many members of the public. Thus, the Supreme Court of Canada has allowed its proceedings to be televised since the mid-1990s. Other appellate courts have followed suit. There was much controversy before these projects started but next to none since. Canadian trials are not televised. The Supreme Court of Canada allows live-tweeting from the courtroom. Other courts have established protocols to permit only accredited journalists to “tweet” from the courtroom.

All Canadian courts now have websites where they provide a host of information about their work, the judges and the cases before them. They can hardly be described as state of the art but they do provide the media and the public with information. Some provide self-represented litigants with information on how to manage their case and represent themselves. Others provide some public legal information, speeches by judges and statistics or annual reports. All of these websites are static: they push out content to the public but they do not allow the public to engage with the courts. Canadian courts have not figured out a way to permit members of the public to engage with them. Thus, it is not surprising that Canadian judges only use social media to a very limited degree. The Supreme Court of Canada has a Facebook page but as of June 2015, it does not have a Twitter or other social media account. It distributes information through a listserv which is very 1990s and very typical of the Canadian legal system to be a decade or more behind in the use of technology. The Supreme Court of Canada posts the factums – the written arguments of the parties – and the court docket on its website, but not the actual contents of the court file. This must be requested from the court at a cost. For other courts, one must actually personally attend at the court registry to view and copy parts of the court file.

178 Cite.

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Canadian judges demonstrate a fear of social media and there is very limited use of social media by courts or by individual judges. Many Canadian judges have a not unsubstantiated fear – based on experience in the United States and elsewhere179 -- that the use of social media might raise questions of reasonable apprehension of bias and constitute a threat to judicial impartiality

Canadian efforts to make their proceedings and the judges more open and accessible to the public foster transparency and accountability primarily, but may also positively impact efficiency. There is an incentive for courts and judges to improve the efficiency of their operations if they are reporting on their proceedings or if they know that others are. There is no indication that any of these developments have threatened judicial independence or judicial impartiality. From time to time, a judge will get into trouble for making a public comment that may reveal a bias or a perception of bias. However, this actually fosters accountability and judicial impartiality because it brings out into the open what would have otherwise in all likelihood have been expressed in private or in secret.

(9) Judicial liability / immunity

In some jurisdictions judges can be held liable for their decisions, if they are subsequently determined to have been mistaken.180 This is not the case in Canada.

Canadian judges enjoy full immunity at common law for their judicial actions.181 The common law also strongly protects what is known as “deliberative secrecy” – the absolute confidentiality of communications between judges about cases.182 The Supreme Court has acknowledged that this conflicts with the open court principle but has held that disclosing such information “would impair the proper functioning of the court by preventing full and frank deliberation and discussion at the pre-judgment stage.”183 Such a regulatory mechanism is considered to be unnecessary in Canada, because of the cumulative effectiveness of the other forms of regulation.

(10) Evaluation of judges

Evaluation is a final regulatory process. It is potentially justifiable of the basis of accountability, transparency and efficiency. Indeed, ongoing performance evaluations are a common feature of many modern workplaces.

We are unaware of any formal processes of evaluation of judges in Canada, at any level. However, there may be informal “evaluation” by Chief Justice’s sending out lists of numbers of judgments on reserve, time outstanding, etc. This gives judges an informal sense of their efficiency relative to their colleagues.

179 Cite. 180 Cite examples. 181 Cite. 182 Cite. 183 Criminal Lawyers Assn v. Ontario (Minister of Public Safety and Security), 2010 SCC 23, [2010] 1 S.C.R. 815 at para. 40.

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External evaluation would obviously raise concerns about judicial independence and potential infringements on judicial impartiality. However, such objections would be significantly reduced – although not eliminated – if the evaluation was internal and confidential, i.e. performed by the Chief Justice or the Associate Chief Justice of the court.

In a sense, judges are “evaluated” all the time by the media, their colleagues, members of the bar, the public, etc. However, such “evaluation” can hardly be considered objective, comprehensive, etc.

(iv) Resources

Because the judiciary is an institution, a bureaucracy, it inevitably requires resources, and the nature and extent of those resources is closely tied to the values we espouse, the processes we endorse, and the outcomes we anticipate. Consequently some of the issues that merit attention include: (1) Numbers of judges, part time and full time, per capita; (2) Salaries and pensions of judges; (3) Physical Infrastructure; (4) Support Staff; (5) Technological needs/supports; and (6) Security.

Generally speaking, there is a noticeable distinction between the resourcing of the wholly-federal courts (the Supreme Court of Canada, the Federal Courts, etc.) and the provincially-administered superior courts and the pure provincial courts. The vast majority of judges and cases occur in the provincial courts and provincially-administered superior courts. The federal courts have a much smaller caseload and are much better resourced. The global budget for court administration federally takes up a much smaller percentage of the overall federal government budget than the justice budget does at the provincial level.184

At the provincial level, resources for the justice sector have been declining in the past two decades. Budget cuts have led to courthouse closures and reduced staffing in different jurisdictions. Budget deficits in the 1990s led to the confrontation between provincial court judges and governments over remuneration which led to the landmark 1997 Supreme Court case on judicial independence.185

However despite these challenges, Canadian courts are in relatively good shape. There are approximately 2,200 judges in Canada, a ratio of 1:1600 to the general population. Comparatively, this is relatively good.186 However, their workload is unevenly distributed, not just between lower level courts and higher level courts (which is perhaps inevitable) but also as between different courts in different provinces. A significant number of judges do complain about their increasing workloads, and concerns have been expressed that governments are not filling judicial vacancies quickly enough.187

In terms of salaries Canadian judges are very well paid. Superior Court judges earn approximately $300,000 per year and provincially appointed judges earn approximately

184 Lindsey can you provide sources for this claim? 185 See Provincial Judges Reference, [1997] 3 S.C.R. 3. 186 187 Yamri Tadesse, “Judicial Vacancies Pile Up” Law Times (December 2014).

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$240,000 per year (although there are variations across the country). Appellate Court judges earn even more. The pension plans of Canadian judges are widely perceived to be gold standard.

When we consider issues of infrastructure, support staff and technological needs and supports the picture is less rosy. While some courts have been beneficiaries of government investments188 others have not.

Consider for example British Columbia’s Justice Reform project. Launched in 2011 by the Ministry of Justice of Canada’s third-largest province, the goal of the project is to “moderniz[e] and transform[] justice services in a way that meets the needs of British Columbians. In particular, it is aiming to create a transparent justice system capable of delivering timely, well- balanced services.” The project was triggered by a “Review of the Provincial Justice System in British Columbia” conducted by the Ministry of Finance which raised significant concerns about costs, delays and performance management within the justice system, including the judiciary.189 This was followed by a Green Paper that highlighted “the paradox: inputs are down, yet costs and delays are up” and suggested that an over emphasis on independence – including judicial independence – might be one of the barriers to effective change.190 In response the province’s three chief justices issued a less than subtle joint statement “Judicial Independence (What Everyone Should Know About It).”191 In a subsequent Independent Report192 and two White Papers193 the government, while acknowledging the legitimacy of some aspects of judicial independence, continued with its emphases on transparency, improved efficiencies and enhanced performance. Notably, however, when the government passed its Justice Reform and Transparency Act in 2013194 which sought to establish the bureaucratic architecture for reform through the creation of a Justice and Public Safety Council obligated to hold annual Justice Summits, it also included a provision emphasizing that “judicial independence is not restricted”, and another providing for a “memorandum of understanding relating to the administration of the courts between the Attorney General and each of the chief justices of the three courts.”195 The impact of this apparent detente between the government and the judiciary on the justice reform project remains to be seen.

Finally, there is the issue of security. Occasionally Canadian judges are personally threatened but, by and large, Canadian judges inhabit a secure environment. Having said that, in the course of the last two decades, there have been increasing concerns about the security of courthouses. A significant amount of resources have been invested in increasing security, and there is not a courthouse in the country where screening of persons and bags is not de rigeur.

188 See e.g. Calgary courthouse. 189 Review of the Provincial Justice System in British Columbia (Victoria, Ministry of Finance, September 2011). 190 Modernizing British Columbia’s Justice System (Victoria: Minister of Justice and Attorney General, February 2012). 191 Supra note xxx. 192 D. Geoffrey Cowper, A Criminal Justice System for the 21st Century (BC Justice Reform Initiative, Aug 27, 2012). 193 A Modern Transparent Justice System (October 2012) and A Timely Balanced Justice System. 194 SBC Ch. 7, 2013. 195 Ibid.

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(v) Outcomes

Values, processes and resources are all designed to achieve desired outcomes. Although this might vary from jurisdiction to jurisdiction we suggest that one potentially generalizable outcome would be public satisfaction with, and confidence in, the judiciary. More specifically it might entail assessments of a) the potential for timeliness, finality and certainty in the resolution of disputes or b) access to justice.

Generally speaking, the Canadian justice system, and the judiciary in particular, seems to generate significant public support. For example in “Trust in the Professions” opinion polls, Canadian judges tend to rank near the top.196 In the World Justice Index again, overall, Canadian judges do well.197 The business community has confidence in the integrity and efficiency of Canadian judges198 and, as we indicated previously, most judges are able to meet the 6 month expectation for timely decisions. However, as we have previously suggested, many governments are concerned about the effectiveness and efficiencies of the judiciary. Examples involve not only British Columbia’s Justice Reform Project (discussed in Part ?) but also Ontario’s Justice on Target initiative for its criminal courts. The project, commenced in 2008, sought to reduce by 30% the average number of appearances and days required to complete a criminal trial. As of November 2014, it has significantly missed its benchmarks.199

There are even more concerns about access to justice. Recently the World Justice Index ranked Canada 16/23 in terms of access of civil justice.200 There has also been a dramatic increase in self-represented litigants in the civil and family courts.201 In the last few years, three major reports have identified access to justice as the biggest challenge facing the legal system in Canada and they have all recognized that the courts and judiciary are a fundamental part of the problem, and an essential part of the solution.202

The Canadian judiciary has been attempting to respond to these concerns, not only through crafting speeches on the importance of access to justice, but also through the establishment of, and participation in, nationwide research and reports,203 and the developments of processes and protocols to be more responsive to the needs of self-represented litigants.204 But it is unclear how successful these are. For example in 2014 a group of self-represented litigants wrote an open letter to the Chief Justice of Canada complaining about how badly they had been treated by the judiciary.205

196 Cite. 197 Cite. 198 Cite. 199 Yamri Tadesse, “Justice on Target Continues to Fall Short” Law Times, 24 November 2014. 200 Cite. 201 National Self-Represented Litigants Project. 202 For an overview see R. Devlin, “Break or Bend” Pitblado Lecture 2014 Winnipeg. 203 Cromwell Report. Cite. 204 CJC, Guidelines on Self-Represented Litigants. 205 Cite letter.

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In the Canadian context, the Supreme Court of Canada identified three aspects of public confidence in the judiciary: as resolvers of disputes, as interpreters of law and as defenders of the constitution.

(v) Conclusion

To follow

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