The Court found Section 63(1) of the Judges Act, R.S.C. 1985, c. J-1 constitutional. This provision permits the Federal and Provincial Attorneys General to commence inquiries regarding whether certain judges could be removed from office without following screening procedures set out in s. 63(2). The appropriate test applied considering the constitutionality of s. 63(1) was whether or not a reasonable person would have a reasonable apprehension the section would impair judges’ impartiality by requiring the Council to commence inquiries without engaging the screening procedure. There were sufficient safeguards in the s. 63(1) process, despite the fact the screening procedure was not required.

Administrative law – Judges – Removal from office – Inquiry – Constitutionality – Judicial review – Compliance with legislation

Cosgrove v. Canadian Judicial Council, [2007] F.C.J. No. 352, Federal Court of Appeal, March 12, 2007, Sexton, Evans and Sharlow JJ.A.

After a criminal trial, the Attorney General of Ontario wrote to the Canadian Judicial Council (the “Council”) requesting that an inquiry be commenced into the conduct of the presiding trial judge of the criminal matter (the “Trial Judge”) pursuant to subsection 63(1) of the Judges Act. The Attorney General of Ontario expressed the opinion that the conduct of the Trial Judge throughout the criminal trial had so undermined public confidence in the administration of justice in Ontario that the Trial Judge had become incapable of the due execution of his office, within the meaning of subsection 65(2) of the Judges Act. The Council decided that the Trial Judge would not sit on any case until the inquiry was resolved.

In response, the trial judge brought an application to the Inquiry Committee challenging the constitutionality of subsection 63(1) on the basis that it infringes the constitutionality protecting independence of the judiciary. The application was dismissed and was appealed to the Federal Court for judicial review. The Federal Court found the subsection in question unconstitutional and overturned the Inquiry Committee’s decision.

The Attorney General of Canada appealed the Federal Court’s decision.

The Judges Act provides two “streams” by which an inquiry into a judge’s conduct may be requested. “Regular” complaints may be lodged by any person under s. 63(2) of the Judges Act. Under this stream of inquiry, a screening process is used to determine whether or not an inquiry into the judge’s conduct will be pursued. Federal and Provincial Attorneys General are able to commence inquiries under s. 63(1), without following screening procedures set out in s. 63(2). The question before the Federal Court of Appeal was whether or not s. 63(1) was unconstitutional on the basis that it infringed on the independence of the judiciary.

The Federal Court of Appeal found that subsection 63(1) was constitutional and that it did not infringe on judicial independence. The Federal Court of Appeal found that there were sufficient safeguards within subsection 63(1) to protect the constitutionality of that subsection. The Court of Appeal also noted that the differences between the two complaint procedures are relatively minor when considered against the constitutional assurance of security of tenure given to judges of the Superior Courts, the constitutional role of Attorneys General to act in accordance with the constitutional obligations, the substantial protection afforded by the appointment of an independent counsel to the Inquiry Committee, and the procedural safeguards provided in the Judges Act, the Inquiry Bylaws and the Council’s Rules of Practice. The Court found that a reasonable and right-minded person, knowing the relevant facts and circumstances, viewing the matter realistically and practically, and having thought the matter through, would not have a reasonable apprehension that subsection 63(1) of the Judges Act would impair judges’ impartiality because it requires Council to commence an inquiry at the request of a Provincial Attorney General without engaging in the screening procedure.

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