Judicial council

Posted on

Some time ago, Provincial Judge B– I– was removed from the bench by the Judicial Council of British Columbia. No reasons were ever publicly announced. This led to editorial comment in the press and there was a suggestion that the legislation had been inadequately drafted, and did not property protect the civil rights of provincial judges.

A question has arisen whether these allegations have substance and whether, accordingly, our Association should intervene.

The legislation in question is part of the Provincial Court Actof 1969. It is a British Columbia statute which became law on April 2, 1969. It involved a substantial reorganization of provincial courts which in themselves are important institutions if only because they handle well over 90% of all cases which come before all courts in British Columbia. The main points of the legislation, in context which interests us, follow:

  1. All provincial court judges are appointed by the Provincial Cabinet and their salaries are fixed by the Attorney General.
  2. One judge is designated as “senior” and has general supervision of the administration of the court plus such other duties and powers as the Attorney General prescribes.
  3. The services of these judges may be terminated in three ways:
    1. by resignation
    2. by retirement which is compulsory at age 70 unless extended to, but not beyond, age 75
    3. by removal from the Bench by government action which takes the form of an Order-in-Council; i.e., the same method as is used for appointments. Removal may “only” be for “misbehaviour or for inability to perform duties properly”. Before such an Order-in-Council can be passed, the statute requires that the circumstances of the misbehaviour or inability must first be made the subject of an inquiry. The judge must be given reasonable notice of its time and place and an opportunity to be heard by himself or through counsel, to cross-examine witnesses and to provide his own evidence. Pending this inquiry, the senior judge has the authority to suspend any other judge.
      There is no specific stipulation as to what person or body must conduct such an inquiry. But later in the statute this power is given, though not exclusively, to the Judicial Council. In other words, such an inquiry can be conducted by the Council but it can also (presumably) be conducted by some other, unstipulated, person or body.
  4. The Judicial Council itself is established under Section 21 and 22. It comprises seven persons, namely the senior judge and two other judges appointed to Council by the Attorney General, the Law Society’s Treasurer and three government appointees.
  5. The Judicial Council can function only at the request of the Attorney General and then only:
    1. To consider improvements in the Court’s judicial services
    2. To consider appointments to the Court
    3. To consider complaints against judges for misbehaviour, inability to perform their duties and neglect of duties; and to conduct inquiries in respect of these matters.
    4. To report to the Attorney General.

Several comments arise:

  1. The normal legal rights of a judge charged with misbehaviour or inability to perform his or her duties properly are protected by the clause which allows him or her reasonable notice of the time and place of the inquiry, an opportunity by himself or counsel to be heard, to produce evidence and to cross-examine witnesses.
  2. Whether these rights exist if a judge is charged with neglect of duty remains an open question and this no doubt is a drafting error in the legislation. Strictly speaking, a judge could be removed from office without a hearing if he was charged with neglect of duty as distinct from inability to perform.
  3. By inference, the Judicial Council alone can conduct all such inquiries; but there is nothing to prevent the government under the Public Inquiries Act or on its own motion from appointing such other tribunal to hear complaints of misbehaviour or inability to function or neglect of duty. Again this may be a drafting oversight or it may be that the government deliberately intended to leave this aspect of the matter vague so as to free its hands to inquire into judicial misconduct, inability or neglect, apart from the Judicial Council.
  4. The Judicial Council can only function at the request of the Attorney General. It cannot therefore directly receive a citizen’s complaint about judicial misconduct, etc., and proceed with an inquiry on its own. It can only do so if the Attorney General has requested the inquiry.
  5. The Act is silent as to whether any hearings conducted by the Council are public or private. The normal rule for the conduct of public affairs should be that inquires are public.
  6. The question has been asked whether witnesses could be sued if they testify before the Judicial Council against a judge. The answer to this question must be in the negative, as all witnesses are protected from suit when they give testimony under oath. This does not of course prevent a prosecution for perjury.

It is clear that this legislation requires amendment. Specifically:

  1. The Council should be given exclusive power to investigate judicial conduct. There seems to be no good reason why this conduct should be investigated by some other tribunal.
  2. The Council’s jurisdiction should not depend on prior authorization by the Attorney General. Any citizen should be free to present a complaint to Council about juridical misconduct and have it aired.
  3. No judge of the Court should sit on any case involving a brother judge.
  4. Normally, public hearings should be the rule. No doubt there could be special circumstances in which, as in certain types of criminal cases, the hearing may be private, but this should be severely circumscribed.
  5. The stipulation protecting witnesses who testify could be added to the legislation, although this would be unnecessary. It would, however, be a useful addition because it would indicate to the public that they have nothing to fear by bringing forward complaints against members of the Provincial Court.
  6. The penalty imposed should not necessarily be dismissal. Lesser penalties should be possible.
  7. There should be an appeal to the Court of Appeal re questions of law.

In general, it could be added that for too long the courts have wrapped themselves in a sacrosanct aura and have tended to place themselves about public criticism. It is of great importance that the provincial courts which handle so great a bulk of all judicial business and whose activities vitally affect the everyday lives of so many citizens, should not be above criticism, and indeed the public should be encouraged to file complaints and to have them aired publicly. Protection against abuse is no great problem as it could be made an offence for a citizen to complain and then not proceed. If the complaint is ill-founded, this would be apparent and would doubtless have the effect of strengthening the stature and authority fo the court; whereas if the complaint were well-founded, the public would be reassured that the administration of justice is impartial and that judges themselves are not immune to discipline.