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Regulating Judges in Canada Richard Devlin* and Adam Dodek** I

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Regulating Judges in Canada Richard Devlin* and Adam Dodek** I “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 judicial independence 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 Supreme Court of Canada.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, Dalhousie University, Halifax, Canada. ** Faculty of Law, University of Ottawa, 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. 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. 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. Regulating Judges: Canada Draft June 2015 for Milan P a g e | 1 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 Federal Court 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 Quebec 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. Regulating Judges: Canada Draft June 2015 for Milan P a g e | 2 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, fundamental justice, 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
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