Amended Judges Act and right of appeal: Much ado about not much? | Heather MacIvor

By Heather MacIvor

Law360 Canada (July 11, 2023, 12:40 PM EDT) --
Heather MacIvor
Heather MacIvor
After ping-ponging between the Senate and the House of Commons, An Act to Amend the Judges Act (Bill C-9) finally received royal assent on June 22. The bill abolished and replaced the procedure for investigating complaints against federally appointed judges which had been in place since 1971. Although the Canadian Judicial Council (CJC) retains the overall responsibility for such complaints, the process for resolving them has been transformed. 

Under the old system, the members of the CJC — the chief justices and associate chief justices of the federally appointed courts — had the exclusive power to decide whether to hold a formal inquiry into a judge’s conduct and, ultimately, whether to recommend to the minister of justice that the judge be removed from the bench. The new system vests those decision-making powers in smaller panels, most of whose members do not belong to the council. It also contains explicit safeguards against conflicts of interest, and permits the replacement of a CJC member by a puisne judge on any type of panel (ss. 141-142 of the amended Judges Act).

Once a future complaint against a judge has been screened (ss. 88-91), and then reviewed by a council member (ss. 92-97), it will be sent to a review panel comprising a council member, a superior court puisne judge and a lay person (the two latter chosen from public rosters established pursuant to ss. 81-85). If the review panel determines that “the judge’s removal from office could be justified” (s. 101), it refers the matter to a hearing panel; otherwise, it may dismiss the complaint or choose from a range of milder disciplinary sanctions (s. 102).

Like the review panels, a majority of hearing panel members is drawn from outside the CJC. A hearing panel may not consider any prior decision and reasons in the same matter (ss. 111, 118). It has the same power as a superior court to summon evidence and compel witnesses, but is “not bound by any legal or technical rules of evidence” (ss. 127-128). The judge “has the right to be heard, to cross-examine witnesses and to adduce evidence, in person or by counsel” (s. 124). The allegations and evidence against the judge are presented by a lawyer (the “presenting counsel”) designated by a CJC member who is subsequently barred from participating in a hearing or appeal panel on the same matter (ss. 106-109). A panel’s hearings are presumptively public, as are its decision and reasons (ss. 115, 122). Only a full five-member hearing panel may recommend that a judge be removed from office (s. 139).

An adverse hearing panel decision may be appealed to an appeal panel comprising three CJC members and two puisne judges. Section 131 provides that an appeal panel “has all the powers vested in [a] court of appeal.” It can “reverse, vary or affirm” any decision of a hearing panel, “and make any decision the hearing panel could have made.” The appeal panel’s decision must be based on the record of the hearing panel, together with the submissions of the judge and the presenting counsel, although it may admit new evidence in exceptional circumstances (s. 134). The final decision and reasons must be made public (s. 136).

The amended Judges Act does not provide for a right of appeal from an adverse appeal panel decision. The only statutory recourse for a judge facing sanctions for misconduct is to apply for leave to appeal to the Supreme Court of Canada within 30 days (s. 137). Meanwhile, the privative clause in s. 158 provides that a panel decision “is final and is not to be questioned or reviewed in any court other than provided for in this Part.”

In their submissions to the Senate Committee that studied the bill, several witnesses called for s. 137 to be amended to provide for an appeal as of right to the Federal Court of Appeal. Citing the fact that the Supreme Court of Canada rejects roughly 90 per cent of leave applications, supporters of the amendment warned that the amended Act would deprive judges of any judicial remedy for errors of fact or law or failures of procedural fairness. The proposed amendment was adopted by the Senate, but rejected by the Trudeau government because it would add unnecessary cost and delay to judicial conduct proceedings. In the end, the Senate voted to allow Bill C-9 to take effect without a guaranteed right of external appeal.

From an administrative law standpoint, the fuss over external appeals is somewhat puzzling. In the first place, and despite the strong privative clause in s. 158, a judge facing sanctions for misconduct retains the right to apply for judicial review at the Federal Court by virtue of s. 96 of the Constitution Act, 1867. (See, for example, Reference re Code of Civil Procedure (Que.), art. 35, 2021 SCC 27 at para. 51.)

So, it is inaccurate to suggest that the amended Judges Act eliminates external judicial oversight altogether. Granted, the Federal Court would almost certainly decline to hear any such application until after the internal CJC process had concluded; the doctrine of prematurity would weigh heavily against any interlocutory application, as would the fact that hearing panels consider each complaint de novo instead of relying on prior decisions in the matter. But there is nothing to prevent a judge from applying for judicial review of a final appeal panel decision if the Supreme Court declined to hear an appeal. (Although I’m not sure how a recommendation to sanction a federally appointed judge could fail to satisfy the “public importance” criterion for granting leave in s. 40(1) of the Supreme Court Act.)

Second, the new CJC appeal panels will have extensive remedial powers vis-à-vis the hearing panels — likely more extensive than those available to an appellate court. The normal standard of review for appellate courts applies in statutory appeals of administrative decisions (see Housen v. Nikolaisen, 2002 SCC 33 and Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65). Although the issue is not definitively settled, the weight of authority suggests that Housen does not apply when an internal appeal tribunal reviews an administrative decision. Instead, the “internal standard of review” is determined by the role assigned to each appeal tribunal within its particular statutory regime. (See Moffat v. Edmonton (City) Police Service, 2021 ABCA 183; Yee v. Chartered Professional Accountants of Alberta, 2020 ABCA 98; and E.Z. Automotive Ltd. v. Regina (City), 2021 SKCA 109. But see Khan v. Law Society of Ontario, 2022 ONSC 1951 (Div. Ct.), holding that Housen applies to appeals from the Law Society of Ontario Tribunal Hearing Division to its Appeal Division.)  

The amended Judges Act imposes few limits on the error-correcting powers of a CJC appeal panel. While it may not review a matter de novo, an appeal panel — which, unlike the review and hearing panels, is made up entirely of judges — need not defer to prior decisions. It is entitled to apply its own expertise and substitute its own conclusions for those of a hearing panel. In contrast, a statutory appeal to the Federal Court of Appeal (or, for that matter, the Supreme Court) would be restricted to the remedial scope defined by Housen and Vavilov. An appellate court could set aside a finding of judicial misconduct based on an error of law, but would have to defer to the CJC’s findings of fact absent an extricable legal issue or a “palpable and overriding” error that directly influenced the outcome.

While we won’t know for sure until the new procedure is put to use, I predict that judges will be at least as well served by the internal appeal process in the amended Judges Act as they would have been by a guaranteed right of external appeal. In this instance, the legislative standoff between the two Houses of Parliament may turn out to be much ado about very little.

Heather MacIvor is a content development associate at LexisNexis Canada. She has served as contributing editor on several Halsbury’s Laws of Canada titles, including Administrative Law (2022) and Judges and Courts (2022).

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