Sample of Complaints received during 2000-2001
The complainant was the mother of a child who was allegedly assaulted by the accused. She alleged that the trial judge, who acquitted the accused, was biased in favour of the defence. She also alleged that the judge had counselled defence counsel to re-elect to be tried by judge alone, rather than by a judge and jury, because this would be favourable to the defence. The complainant alleged that the judge had previously been reprimanded for making comments against women. The judge stated that he had not counselled either counsel regarding the advisability of trial before judge and jury. He stated that the change in the mode of the trial had come about as a result of a written request to a court official that was consented to by Crown counsel. The judge provided a transcript of the trial proceedings which did not reveal any bias on the part of the judge.
The complainant was advised that the judge did not tell defence counsel that trial by judge alone was preferable, and even if the judge had done so, it would not be improper. She was informed that the judge had not previously been "reprimanded" as alleged.
The complainant in a family law matter alleged that the judge had wrongly made an interim order allowing both parties to remain in the home pending completion of a custody evaluation and that she and the children had suffered as a consequence, due to the time it took for the evaluation to be completed and in view of the fact that the parties did not get along. The complainant also alleged that the property division was inequitable, that the judge had misapplied the child support guidelines and had erred in making his decision. She further alleged that the judge was biased against women.
The complainant was told that her remedy would have been to appeal the order permitting both parties to remain in the home or to appeal the final decision. She could have returned to the court for interim relief, on the grounds of the length of time required to complete the evaluation and the conditions she described. In his decision, the judge had pointed out that had the complainant requested a trial date earlier, the matter could have been completed more than a year earlier. He said the division of matrimonial property had been agreed to between the parties prior to his final decision. It was explained that any errors in this regard could not be imputed to the judge's decision. The complainant was advised that a review of the evidence, including the complete recording of the proceedings had revealed nothing that could support her allegation of gender bias on the part of the judge and that, as such, the allegation was completely unfounded.
An appellant in family law proceedings alleged that only one of the three appeal judges "reviewed" his case, the other two judges having "just agreed with his conclusions, probably without even looking at the evidence". The one appeal court judge who had "reviewed" his case, "overlooked" and "cunningly changed evidence to make him look bad for no reason other than gender-bias". The appeal court overlooked five trial court exhibits because they "clashed" with the trial court judge's "biased conclusions and premeditated intention to issue an order that would be favourable to the defendant/respondent, a woman" and "unfair, unjust and unequitable" to the complainant man. The complainant alleged that the appeal court erred in fact and in law on the parties' respective financial positions and the trial judge's findings of credibility and in agreeing with the trial judge who "categorically set aside" a pre-existing written agreement between the parties "for the senseless reason that it was 'not done with independent legal advice'. " He further alleged that the appeal court was wrong to have cited the findings of the trial judge, which he alleged suggested that he may have contributed to his ex-spouse's deteriorating psychological condition and attempted suicide. Finally, the complainant alleged that the judges "did not subscribe or follow the principles of integrity, diligence, equality and impartiality, as set out and explained in the Council's publication Ethical Principles for Judges". The complainant had indicated that he was pursuing an appeal of his case to the Supreme Court of Canada.
The complainant was advised that an appeal was his proper recourse in view of his allegations of error of fact and of law, which could not be equated to allegations of misconduct on the part of the judges. He was advised that it was common practice for one of the judges in a panel of appeal court judges to write the decision, and for the others to adopt the judgment as written by signing their agreement. This did not mean that they had not reviewed the evidence, or not decided the matter. The complainant was also advised that he had not provided any evidence in support of his allegation of gender bias, which could not be presumed simply because the Court dismissed his appeal. He was further advised that there was nothing in his complaint which could support his conclusion that the panel of judges did not "subscribe or follow the principles of integrity, diligence and equality".
Two complaints were received from associations regarding comments made by Mr. Justice Michel Bastarache of the Supreme Court of Canada to a member of the media and subsequently published in major newspapers. The complainants alleged that in expressing his personal view that judges should defer to the will of Parliament and in criticizing prior judicial decisions, the judge was biased and had created a reasonable apprehension of bias regarding legal issues which would likely re-appear before him. One of the associations also alleged that the negative language used by the judge to describe other judges undermined public confidence in the judiciary and may damage collegiality and respect among judges. Mr. Justice Bastarache and Chief Justice Beverley McLachlin were asked to comment. The judge stated that in responding as he did in the interview, he was attempting to provide frank and open insights into the decided opinions of members of the court and that he did not take issue with many of the points made by the association about extra-judicial comment on the part of judges. The judge stated that he was able to and would judge objectively in future cases. Chief Justice McLachlin stated categorically that the judge had invariably approached all appeals and all aspects of the decision-making process in a completely impartial manner. The chief justice stated she had confidence that the judge would continue to accord a fair hearing to all litigants before him and decide each case with impartiality.
In a letter to the judge, the Chairperson said he was satisfied that the judge's statements were made honestly and in good faith to encourage a better understanding of the differences in judicial approach which gave rise to divisions of opinion in the Court. He said the judge's purpose was not to proselytize or to act as a public advocate for his views, but only to explain why he held them. While these motives were laudable, some of the comments "were of a nature that could be expected to cause controversy." The Chairperson accepted the judge's assurance that he could and would judge objectively in future cases. Because of the considerable publicity about the complaint, the Council issued a news release about the disposition of the matter.
A complainant in divorce proceedings alleged that the judge had made inappropriate remarks in a meeting in the judge's chambers with the lawyers. He alleged that the judge's decisions, which were "financially disastrous" for him, "were tied to the essence" of the remarks. The complainant further alleged that the judge had exhibited "anger" towards him during the proceedings and that he concluded that the judge was biased towards men and in particular towards him as evidenced by her conduct during the proceedings and in her decisions. Comments were sought from the judge. The judge, both lawyers and the complainant were interviewed by outside counsel.
The complainant was advised that although there were conflicting versions as to what comments were made, the preponderance of evidence appeared not to support his allegations. The judge adamantly denied having made the remarks and the recollection of the other lawyer, present at the meeting in chambers, supported the judge's denial.
The complainant was informed that his lawyer had made it very clear that she had not perceived any bias against men on the part of the judge. The Council was unable to conclude that his allegations concerning inappropriate remarks and bias had been substantiated. Nor had the review revealed any basis for his allegation of "apparent anger" on the part of the judge, who advised that these proceedings had been particularly difficult and emotional because the parties had not been on speaking terms for some time and because they had difficulty accepting the fact that in a family law trial where custody was not in issue, the conduct of the parties was not relevant. The complainant was further informed that the judge stated that she had to make frequent and firm rulings on evidentiary matters during the testimony of both parties in order to maintain control of the proceedings.
The complainants, who represented themselves as plaintiffs in a medical malpractice suit, disagreed with the trial judge's decisions rejecting the evidence of their witnesses and finding against them at trial. They also complained that the case management judge was in a conflict of interest because she had acted for the hospital some years before. The case management judge stated that she had disclosed to the parties at one of the early case conferences that she had acted both for and against the hospital. Both parties had agreed that she should continue as case management judge. Some time later, when one of the complainants raised the issue again, she gave them an opportunity to bring an application to have her step down. The complainants again said they were content that she continue to act as case management judge. The judge provided copies of the transcript of the relevant proceedings and her notes of the dates when this issue arose.
The complainants were informed that the trial judge's decision was not open to review by the Council. The case management judge had acted both for and against the hospital, and this had occurred some years before the issue arose in this case. In addition, the complainants had been informed by the judge of her previous involvement both for and against the hospital and they had consented that she could continue to act. There was no basis for a finding of misconduct against either judge.
The complainant, a lawyer, alleged the judge should not have presided at a passing of accounts where he was involved because she was in a conflict of interest. The allegation was based on the fact that she knew him or knew of him because he was a local counsel appearing before her as a local judge. He stated that at an earlier hearing in the same matter she had agreed that an out of town judge should preside. The judge stated that the distinction between the passing of accounts and the previous hearing was that the earlier hearing required an assessment of the credibility of two local lawyers based on their personal affidavits. She had therefore ordered that the motion be heard by an out-of-town judge. This was not the case at the passing of accounts. The judge stated that she did not know the complainant socially or professionally and that she had never had any personal or professional relationship with him.
The complainant was informed that there was no basis for a finding of judicial misconduct.
The complainant in a divorce proceeding alleged he had been the victim of prejudice by the judge because the latter was well acquainted with the father of his ex-wife, the plaintiff, and had said so aloud before the parties, who were represented by counsel. He complained that for this reason the judge was not capable of rendering impartial judgments about him. Although he said that counsel had told him that the judgment contained several errors, he said he did not have the financial means to appeal the judgment. The complainant also complained of the plaintiff's conduct and said he only wanted a "peaceful life".
The complainant was informed that the judge had said that he did not know the parties and that after checking the name of the plaintiff's father in the court record said he did not recall knowing him. The judge explained that the parties had only appeared before him twice, the first time on a motion to amend the alimony and the second for the trial on the merits. The complainant was told that the judge had not presided at the hearing he had mentioned in support of his allegation that the judge had said aloud that he was well acquainted with the plaintiff's father. The complainant was informed of his right to appeal.
The complainant, who represented himself in a breach of contract case, alleged that the judge was biased against him because he represented himself at a pre-trial conference and is not a lawyer. He based this allegation on the fact that the judge did not set the complainant's action down for trial. He also alleged that the judge had denied him natural justice because he had not allowed the complainant to present evidence at the pre-trial conference. Finally, he alleged bias because the judge had allowed opposing counsel in another action brought by the complainant to appear at the pre-trial conference to make submissions relating to issues in that action. In a subsequent letter, the complainant alleged that he had again been denied natural justice because his case in another action had not been set down by the judge, whom he alleged had violated the rules of court and the judicial ethical principles of "independence, integrity, equality". He further alleged that the judge had violated the principle of impartiality because he had refused to remove himself as case management judge when the complainant had informed him of his prior complaint against him in another action.
The complainant was advised that he had provided no evidence of bias or misconduct. It was within the presiding judge's discretion to defer setting the matter down for trial. It was also within the presiding judge's discretion to hear from counsel in a related case brought by the complainant. He was informed that his allegations of violation of judicial ethical principles did not arise on the evidence and that the rules of court could not be said to have been "deliberately and maliciously violated" because his actions had not been set down or because he alleged having been denied natural justice. The complainant was advised that the fact that the judge did not remove himself as case management judge - because the complainant informed him of his previously filed complaint against him in another related action - did not lead to an automatic presumption that the judge was "biased or lacked impartiality". In the instance complained about, the judge had been acting as case management judge dealing with matters of procedure rather than the merits of the case.
The complainant in a divorce matter alleged that two judges were corrupt and had conspired to deny him his "civil rights" by issuing particular orders in his family law matter. He had maintained he could not attend the proceedings because of outstanding warrants for his arrest, which his wife had obtained against him in his absence from the country.
The complainant was advised of the importance of exercising his right to appeal any order he alleged was made in error. He was further advised that in the absence of a party in court and in the absence of any contrary evidence, a judge could make an order granting the request of the applicant. While a judge had the discretion to adjourn a matter, as he had done more than once when the complainant had not appeared, family law matters could not be postponed indefinitely. The complainant was advised that in an adversarial system, the prerogative belonged to the parties to contest orders and to set the record straight. Furthermore, in cases where there may be outstanding warrants, the absent party could present his case through legal counsel. The fact that the complainant's first representative had not been accepted to speak on his behalf by the court, as he was not a lawyer and did not have sufficient knowledge or experience, did not stop the complainant from pursuing and obtaining legal representation.
A self-represented complainant alleged that the judge had unjustly dismissed his claim in negligence because the judge had refused to allow him to examine witnesses and medical articles that he wished to rely upon. He said the judge had exhibited bias because he knew an expert witness for the defence. The complainant alleged that the judge had yelled at him in anger and that he had felt intimidated and embarrassed during the hearing. He also alleged that the judge had ignored or misapprehended evidence and had erred in awarding costs against him.
The complainant was advised of his right to appeal and reminded that the Court of Appeal had not only dismissed his application for an extension of time to appeal, but had also addressed the merits and concluded that there was no merit to the appeal. The complainant was informed that the hearing he complained of was a Summary Trial which had been brought on by the defendants by way of application to the court, in accordance with the rules of court. He was advised that such a hearing is conducted only on affidavit evidence and that the judge had so informed him at the time of the hearing. A review of the judgment showed that the judge had dismissed the complainant's claim in negligence at the Summary Trial stage as he had concluded that the evidence the complainant relied upon and intended to rely upon at trial did not meet the onus of proof required of a plaintiff in a medical negligence claim, since a plaintiff cannot rely upon the defendants' medical experts to prove his or her case. The complainant was further advised that a review of the transcripts and of the audio tapes of the hearing had not revealed any hostility, anger or intimidation on the part of the judge. He was also advised that the evidence showed that as plaintiff, he had been given every opportunity to present his case. The complainant was reminded that the issue of the judge's acquaintance with the doctor had been raised in the Court of Appeal, which had found that ground of appeal had no chance of success.
The complainant represented himself in proceedings against the Crown. He alleged that the
judge should have disqualified himself from hearing the trial of the action because he had previously made an order staying the decision of another judge to strike the Crown's statement of defence pending an appeal of that judge's decision. He also alleged the judge made errors during the course of the trial.
The complainant was advised that the judge's earlier order was procedural and not determinative of any of the issues raised in the action. Any objection to the judge presiding at trial should have been placed before the court by way of motion at the outset of the trial or could be raised on appeal. The complainant was advised he had provided no evidence of misconduct requiring further action by the Council.
The complainant, who had been represented by counsel in family law proceedings, complained about the length of time taken by the judge to reach a decision in a jurisdictional motion brought at the pre-trial conference. He also alleged that the judge decided the motion against him because he was male, from outside the province and an aboriginal. The judge stated that the court staff had filed the submissions of the complainant's counsel instead of placing them before him. He had rendered his judgment within five weeks of receipt of the briefs. The total lapse of time between the hearing and the release of his decision was four months. The judge denied any bias and explained the reasons for his decision.
The complainant was advised that the time taken to release reasons was not unreasonable given the six-month Council guideline. He was also advised that there was no evidence of bias.
The complainant in a breach of contract case alleged that the judge based his decision on the wrong evidence and reached a wrong decision. He also stated that the judge had not continued the trial because of his vacation plans and did not deliver his reasons until 11 months after the trial. The judge stated that the trial was adjourned due to scheduling conflicts with counsel. He stated that he would have changed his vacation plans if that had been necessary. He stated that the evidence was completed in November 1998. He agreed to accept written submissions from counsel. The final submission from counsel was dated February 1999 and he issued his decision in October, 1999, eight months later. He stated that the delay was due to another reserved decision following a long civil trial and a full schedule of trial and case management work. The judge stated that he sincerely regretted and apologized for the delay in delivering the decision.
The complainant was informed that the delay in issuing reasons was unfortunate, but in the circumstances the delay did not constitute misconduct.
The complainant alleged that judge A had abused his power by refusing to allow his application to amend his action. He also argued that the judge had "prevented him from saying anything" in opposition to the defendants, who said that a settlement had been reached between the parties. He maintained that the judge favoured the defendants, who were represented by counsel, whereas he was defending himself unaided. The complainant further alleged that judge B had behaved in an intimidating way at a hearing in chambers.
The complainant was told of his right to appeal a decision. Judge A indicated that he had been previously informed by the defendants, when he was making up the roll for lengthy cases, that there was an out-of-court settlement and that the complainant had twice confirmed with the judge's secretary that his case had been settled. The judge indicated that he therefore had not assigned a judge to the complainant's case, in view of the settlement. However, despite this the claimant had appeared in court pressing his claim. The judge said he had explained to him that his case had been struck from the list because of the settlement, but the complainant had continued to argue and became so agitated that the Registrar of his own accord had thought it best to tell the complainant that he must leave the hearing room. A settlement statement was signed a week later and the release and settlement statement filed with the Court Registry. The complainant was informed that the allegations against judge B could not be accepted as there was no evidence in support of his arguments.
The complainant alleged that the judge at first instance breached his legal obligations and erred in not allowing the complainant to appear at a dangerous offender application hearing. He also alleged the judges who heard his appeal neglected their duty, erred in their decision and were engaged in a conspiracy against him.
The complainant was advised that he had provided no evidence to substantiate his allegations of misconduct by the various judges. He was advised that his only recourse was to appeal.
The complainant, a lawyer, alleged that the judge had "harangued" him the moment he walked into the courtroom for being three minutes late at the beginning of a trial. He alleged that on another occasion the judge had "screamed" at him "in a rage" when he had asked him a question regarding the scheduled hearing for the next day and which he had previously advised the judge he could not attend. The judge had subsequently called him and his colleague into his office and screamed again at the complainant saying he had inappropriately questioned him in court. The complainant further alleged that the judge had "incessantly berated, insulted and screamed at all the attorneys, without exception, while they were pleading their motions".
The complainant was advised that the judge denied "haranguing" him and described his reproach as a short remark. The judge advised that he had no knowledge of the fact that the clerk may have given permission to the complainant to absent himself from the courtroom prior to the judge's arrival. The complainant was also advised that a careful review of the judge's response and of the tape of the hearing in the second matter revealed that there appeared to have been a genuine misunderstanding between the complainant and the judge with regard to the lawyer's question concerning the scheduled motion for the next day and that the judge appeared to have perceived his questions as a challenge to his authority. The judge indicated in his letter that although the complainant was of the opinion that he had acted correctly, he had taken a different view of events. The complainant was advised, however, that the judge recognized that the complainant may have been offended and indicated that although he had thought it important to intervene and tell the lawyer what he thought of his behaviour, he had not wished to ostracize anyone. The judge admitted it was possible that there had been mutual misunderstanding between himself and the lawyer, that he had not wanted to offend him and if the complainant had been offended, he regretted it. A careful review of the tapes did not support allegations of improper behaviour by the judge. Although the judge intervened frequently while the lawyers pleaded their motions, there was no evidence of screaming or berating and the judge's interventions appeared to have been made with a view to encouraging the lawyers to simplify and clarify their arguments in accordance with the issues that the judge perceived as pertinent.
In a motion to adjourn the trial in her "divorce/matrimonial property action", the unrepresented complainant alleged that the judge had "stated the trial will proceed in September even if they have to bring you into court in a straight jacket" and had then ordered costs of $500 against her even though the other counsel had not asked for costs. She alleged that the remark was "completely inappropriate and demonstrated a lack of appreciation of the stress caused by a divorce action". The complainant also questioned "whether the judges have a direct pipeline" to the opposing lawyer's office, since the lawyer allegedly knew and had made a comment about a previous complaint she had made against another judge.
The judge pointed out that the action scheduled for trial on May 2000, which the complainant was asking to be adjourned, had been started in one province in 1998 and had been transferred to another province in January 1999. A number of delays had already occurred. The judge stated that he had initially said that he would not adjourn the matter but relented when the complainant agreed that she would not come back and ask for another adjournment if he set the matter for trial in September 2000. The judge said that his reference to a "straight jacket" was made in an effort to indicate that the trial was proceeding, no matter what, but apologized to the complainant as he did not mean to embarrass or demean her. The complainant was advised of her right to appeal an alleged error with regard to the awarding of costs.
The complainant objected to the judge's "high-handed attitude, insults and complaints". She
alleged she had been the victim of a "monologue" by the judge. In particular, she objected that the judge said to her at the hearing "Are you dense?" She asked for the Council's intervention "so it does not happen again in the future".
The judge said that he had wanted to "limit the debate before him" and that subsequently, after hearing the complainant "at length", he had tried to get her to understand "certain unavoidable realities" resulting from actions she had taken that were "somewhat contradictory". However, the judge admitted that the words objected to might seem harsh and that the circumstances provided no excuse. He said he regretted them. The judge's apologies were conveyed to the complainant. The Chairperson expressed disapproval of the conduct in a letter to the judge.
A member of the Council alleged that a judge had electronically disseminated, via a computer network, a document requiring the Council's attention. In addition, the Court's name appeared as the organization on the letterhead of the message. The judge had relied on the fact that the network was confidential.
The judge said he regretted his thoughtless action and made his apologies. The complainant and the judge were informed that even if the network was confidential, private judicial reserve was essential and any judge who was part of it had a duty to ensure that the integrity and reputation of the Court were protected. The Chairperson expressed disapproval of the conduct in a letter to the judge.
The complainant appeared on various motions relating to bankruptcy proceedings against a corporation in which he was a shareholder. He complained about two judges, one of whom he alleged exhibited prejudice and bias, failed to "recognize and honour" an existing order of the Court and acted with "legal malice". In addition to complaining about erroneous findings of fact with regard to a second judge, he alleged the judge had delayed rendering judgment on a motion for a period of 11 months.
The Chairperson referred the matter for the consideration of a Panel strictly with respect to the issue of delay. In his comments the judge had explained that the matter was on reserve for 11 months due to more pressing judicial matters. The judge's chief justice wrote that the judge had one of the heaviest case loads in the court and a number of other time-consuming duties, but he was a hard-working, thorough and thoughtful judge. In view of the explanations provided to the Panel, it concluded there was no basis for any action by the Council and the file was closed with a letter to the complainant dealing with each of his various allegations.
The complainant, a lawyer, filed a detailed and lengthy complaint outlining various allegations against the judge that could be summarized as (i) bias against her on the part of the judge with the result that he interfered with cases she argued on behalf of clients and cases where she was a party litigant; (ii) conflict of interest on the part of the judge for hearing matters or interfering with matters that involved his friends and former law partners; (iii) attempts by the judge to discredit her in the eyes of her peers and other judges with the result that she suffered financial loss and had costs awarded against her based solely on the judge's negative interference; (iv) negatively influencing judges who would hear her various cases by discussing her with those judges; (v) continuing to act in an administrative capacity, setting court dates, etc. when he had given an undertaking not to hear any matters in which she was a party litigant.
The judge's detailed response was given to the complainant. She replied further and an outside counsel was retained to make further inquiries. After a great deal of difficulty and delay caused largely by volumes of further documents and information furnished by the complainant, the counsel submitted a lengthy report to the Chairperson. While the Chairperson concluded that the vast majority of the complaints were groundless, he referred two aspects of the report to a Panel. The Panel decided that there was no evidence of bias or judicial misconduct in the two matters referred to it. The complainant was sent a lengthy letter responding to her complaints, and she was advised that no further action would be taken by the Council.
Complainant A, a former lawyer who was disbarred, filed a complaint because the judge had described him in his absence as a "charlatan" at a hearing involving a party other than himself. He also objected to the fact that the judge had made "an all-out attack" on the association he had founded and against him personally. Complainant B, a party to the case before the judge, objected to the fact that the judge had blamed him for receiving assistance from complainant A's association, and from complainant A himself, in preparing his case. He also complained that the judge had described the person who he said helped him as a "charlatan". Complainant B said he "suffered systemic harassment" because he admitted he was helped by complainant A. He alleged he had "suffered the harmful effects" of the judge's "prejudice".
The complaints were referred to a Panel consisting of three members. The complainants were informed that after reviewing the file the Panel had concluded that the use of the word "charlatan" by the judge in respect of complainant A was improper and out of place, despite the fact that a judge ordinarily has considerable freedom of expression in carrying out his duties, as such remarks could lead to allegations of bias or apparent bias. Complainant B was told that, as he had appealed the judge's decision, it was for the Court of Appeal to deal with his allegations of bias.