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Law & the legal profession

How judges in Canada are disciplined for what they say in court

Judges are expected to be independent, but they are not beyond criticism. In Canada, when a judge makes remarks in court about lawyers, prosecutors, legal aid or the people in front of them, anyone can complain. Who handles the complaint depends on who appointed the judge.

Two systems

  • Provincially appointed judges, who sit in the provincial courts that handle most criminal cases and many family matters, are overseen by a judicial council in each province or territory. In Newfoundland and Labrador, for example, complaints about provincial court judges are dealt with under the province's Provincial Court Act.
  • Federally appointed judges, on the superior courts and courts of appeal, are overseen by the Canadian Judicial Council (CJC), chaired by the Chief Justice of Canada.

How complaints are handled

The processes differ in detail but follow a similar pattern. A complaint is screened, and most are dismissed because they are really complaints about the outcome of a case, which should be dealt with by appeal. Complaints that raise questions of conduct are investigated. Possible outcomes range from closing the file with a letter, to recommending that the judge take training, to a reprimand, and, in the most serious cases, a recommendation that the judge be removed from office.

Delay is a common criticism. Complaints about remarks made years earlier can take a long time to resolve, especially where there is a formal hearing.

A well-known example

The best-known recent case involved Justice Robin Camp, who as a provincial court judge in Alberta in 2014 asked a complainant in a sexual assault trial why she couldn't keep her knees together. By the time of the complaint he had been appointed to the Federal Court, so the CJC handled it. In 2017 the Council recommended his removal, and he resigned.

Why speech from the bench matters

Comments by judges about prosecutors or legal aid lawyers can affect public confidence in the fairness of a trial. Comments about defence lawyers in particular touch a nerve: in Northern Ireland, the 2012 Finucane report examined how a minister's remark in Parliament about solicitors could increase their vulnerability (chapter 14). The principle in both settings is that people with authority should take care when they speak about lawyers doing their jobs.

Sources

  1. Canadian Judicial Council
  2. CBC News: misconduct findings and the Robin Camp case
  3. Law360 Canada: Canadian Judicial Council weighs in on what not to say from the bench
  4. Government of Newfoundland and Labrador: Provincial Court