Vol. 149, No. 16 — August 12, 2015
SOR/2015-203 July 29, 2015
Canadian Judicial Council Inquiries and Investigations By-laws, 2015
The Canadian Judicial Council, pursuant to subsection 61(3) of the Judges Act (see footnote a), makes the annexed Canadian Judicial Council Inquiries and Investigations By-laws, 2015.
Ottawa, July 28, 2015
Chief Justice of Canada
Canadian Judicial Council
CANADIAN JUDICIAL COUNCIL INQUIRIES AND INVESTIGATIONS BY-LAWS, 2015
1. The following definitions apply in these By-laws.
« Loi »
“Act” means the Judges Act.
« doyen »
“senior member” means, in relation to a complaint or allegation, the longest-serving eligible member of the Judicial Conduct Committee who has not previously considered the matter or, if no Judicial Conduct Committee member is available, the longest-serving member of the Council who has not previously considered the matter.
ESTABLISHMENT AND POWERS OF A JUDICIAL CONDUCT REVIEW PANEL
Establishment of Judicial Conduct Review Panel
2. (1) The Chairperson or Vice-Chairperson of the Judicial Conduct Committee, established by the Council in order to consider complaints or allegations made in respect of a judge of a superior court may, if they determine that a complaint or allegation on its face might be serious enough to warrant the removal of the judge, establish a Judicial Conduct Review Panel to decide whether an Inquiry Committee should be constituted in accordance with subsection 63(3) of the Act.
Designation of members
(2) The senior member designates the members of the Judicial Conduct Review Panel.
Composition of Judicial Conduct Review Panel
(3) The Judicial Conduct Review Panel is to be composed of five persons of which three are members of the Council, one is a puisne judge and one is a person who is neither a judge nor a member of the bar of a province.
(4) The Judicial Conduct Review Panel may decide that an Inquiry Committee is to be constituted only if it determines that the matter might be serious enough to warrant the removal of the judge.
Matter sent back to Chairperson or Vice-Chairperson
(5) If the Judicial Conduct Review Panel decides that no Inquiry Committee is to be constituted, it must send the matter back to the Chairperson or Vice-Chairperson of the Judicial Conduct Committee for them to make a decision on the most appropriate way to resolve it.
(6) If the Judicial Conduct Review Panel decides that an Inquiry Committee is to be constituted, the Council’s Executive Director must inform the complainant, if any, by letter.
Decision, reasons and statement of issues
(7) The Judicial Conduct Review Panel must prepare written reasons and a statement of issues to be considered by the Inquiry Committee. The Council’s Executive Director must send a copy of the Judicial Conduct Review Panel’s decision, reasons and statement of issues to
- (a) the judge and their Chief Justice;
- (b) the Minister; and
- (c) the Inquiry Committee, once it is constituted.
Notice inviting Minister to designate members
(8) The Council’s Executive Director must also send a notice to the Minister inviting that Minister to designate members of the bar of a province to the Inquiry Committee in accordance with subsection 63(3) of the Act.
DESIGNATING MEMBERS TO INQUIRY COMMITTEE
Designation of members
3. (1) An Inquiry Committee constituted in accordance with subsection 63(3) of the Act is composed of an uneven number of members designated by the senior member, the majority of whom are from the Council.
(2) If the Minister does not designate any members within 60 days after the day on which the notice is received under paragraph 2(8), the senior member may designate additional Council members to the Inquiry Committee to complete its composition.
Senior member chooses chair
(3) The senior member also designates one of the members of the Inquiry Committee to chair the Committee.
Persons not eligible to be members
(4) The following persons are not eligible to be members of the Inquiry Committee:
- (a) the Chairperson or Vice-Chairperson of the Judicial Conduct Committee who referred the matter to the Judicial Conduct Review Panel;
- (b) a member of the same court as that of the judge who is the subject of the inquiry or investigation; and
- (c) a member of the Judicial Conduct Review Panel who participated in the deliberations to decide whether an Inquiry Committee must be constituted.
LEGAL COUNSEL AND ADVISORS
Persons to advise and assist
4. The Inquiry Committee may engage legal counsel and other persons to provide advice and to assist in the conduct of the inquiry.
INQUIRY COMMITTEE PROCEEDINGS
Complaint or allegation
5. (1) The Inquiry Committee may consider any complaint or allegation pertaining to the judge that is brought to its attention. In so doing, it must take into account the Judicial Conduct Review Panel’s written reasons and statement of issues.
Sufficient notice to respond
(2) The Inquiry Committee must inform the judge of all complaints or allegations pertaining to the judge and must give them sufficient time to respond fully to them.
Comments from judge
(3) The Inquiry Committee may set a time limit to receive comments from the judge that is reasonable in the circumstances, it must notify the judge of that time limit, and, if any comments are received within that time limit, it must consider them.
Public or private hearing
6. (1) Subject to subsection 63(6) of the Act, hearings of the Inquiry Committee must be conducted in public unless, the Inquiry Committee determines that the public interest and the due administration of justice require that all or any part of a hearing be conducted in private.
Prohibition of publication if not in public interest
(2) The Inquiry Committee may prohibit the publication of any information or documents placed before it if it determines that publication is not in the public interest and may take any measures that it considers necessary to protect the identity of persons, including persons who have received assurances of confidentiality as part of the consideration of a complaint or allegation made in respect of the judge.
Principle of fairness
7. The Inquiry Committee must conduct its inquiry or investigation in accordance with the principle of fairness.
INQUIRY COMMITTEE REPORT
Report of findings and conclusions
8. (1) The Inquiry Committee must submit a report to the Council setting out its findings and its conclusions about whether to recommend the removal of the judge from office.
Copy of report and notice to complainant
(2) After the report has been submitted to the Council, its Executive Director must provide a copy to the judge and to any other persons or bodies who had standing in the hearing. He or she must also notify the complainant, if any, when the Inquiry Committee has made the report.
Hearing conducted in public
(3) If the hearing was conducted in public, the report must be made available to the public and a copy provided to the complainant, if any.
JUDGE’S RESPONSE TO INQUIRY COMMITTEE REPORT
Written submission by judge
9. (1) Within 30 days after the day on which the Inquiry Committee’s report is received, the judge may make a written submission to the Council regarding the report.
(2) On the judge’s request, the Council must grant an extension of time for making the submission if it considers that the extension is in the public interest.
DELIBERATIONS OF COUNCIL CONCERNING REMOVAL OF JUDGES FROM OFFICE
Senior member chairs meetings
10. (1) The senior member who is available to participate in deliberations concerning the removal from office of a judge is to chair any meetings of Council related to those deliberations.
(2) A quorum of 17 members of the Council is required when it meets to deliberate the removal from office of a judge.
Quorum — death, incapacity, resignation or retirement
(3) In the event of the death, incapacity, resignation or retirement of a member during the deliberations, the remaining members constitute a quorum.
Vote in event of tie
(4) During the deliberations of the Council concerning the removal from office of a judge, the member chairing the meeting may vote in respect of a report of the Council’s conclusions on the matter only in the event of a tie.
(5) Deliberations of the Council concerning the removal from office of a judge may also be held by audio-conference or by video conference.
CONSIDERATION OF INQUIRY COMMITTEE REPORT BY COUNCIL
Consideration of report and written submissions
11. (1) The Council must consider the Inquiry Committee’s report and any written submission made by the judge.
Who must not participate
(2) Persons referred to in subsection 3(4) and members of the Inquiry Committee must not participate in the Council’s consideration of the report or in any other deliberations of the Council related to the matter.
12. If the Council is of the opinion that the Inquiry Committee’s report requires a clarification or that a supplementary inquiry or investigation is necessary, it may refer all or part of the matter back to the Inquiry Committee with directions.
Report of conclusions to Minister
13. The Council’s Executive Director must provide the judge with a copy of the report of its conclusions that the Council presented to the Minister in accordance with section 65 of the Act.
14. Despite these By-laws, the Canadian Judicial Council Inquiries and Investigations By-laws, as they read immediately before the day on which these By-laws come into force, continue to apply in respect of any inquiries or investigations being conducted by a Review Panel or an Inquiry Committee or the Council acting under section 11 or 12, that were commenced under those By-laws.
15. The Canadian Judicial Council Inquiries and Investigations By-laws (see footnote 1) are repealed.
COMING INTO FORCE
16. These By-laws come into force on the day on which they are registered.
(This note is not part of the By-laws.)
The Judges Act provides that the Canadian Judicial Council may investigate any complaint or allegation made about a judge of a superior jurisdiction. Anyone can make a complaint about a judge of a superior court. The review of complaints is made in accordance with the Complaints Procedures adopted by the Council.
Certain complaints are the subject of further review. Council can hold a public inquiry about a judge if the matter is serious enough that it may warrant the judge’s removal from office.
The Minister of Justice of Canada and the attorney general of a province can also require that the Council hold an inquiry about a judge.
The Canadian Judicial Council Inquiries and Investigations By-laws govern the procedure surrounding an Inquiry Committee.
Revisions to the By-laws will make the procedure more efficient by reducing the number of steps in the process while upholding the principle of judicial independence, fairness to the judge and transparence of the process.
The changes can be summarized as follows:
- the Review Panel as it exists, is replaced by a Judicial Conduct Review Panel consisting of three members of the Council, one puisne judge, and one person who is neither a judge nor a member of the bar of a province, whose mandate is to decide whether an Inquiry Committee should be constituted under subsection 63(3) of the Judges Act; and
- the “independent counsel” is abolished although the Inquiry Committee may appoint legal counsels and other persons to provide advice and other assistance to it.
Canadian Judicial Council Contact
Executive Director and Senior General Counsel
150 Metcalfe Street