Marilyn King, registrar of the Judicial Council of Ontario, outlines the investigative process dealing with complaints against judges
"WE HAVE A very carefully balanced framework so that we can both manage the expectations of the public and respect the independence of the judiciary," Marilyn King, registrar of the Judicial Council of Ontario told The Irish Times.
This court hears the bulk of all cases in the province of almost 13 million inhabitants. There are on average 600,000 adult and children’s criminal cases annually and about 25,000 family law cases in Ontario, heard by the 326 judges on its Courts of Justice.
The main function of the judicial council is to deal with complaints against members of the judiciary.
The council has a panel of 12, of which four are lay or “community” members appointed by the government on the recommendation of the attorney general. Two are from the law society and the other six are judges, including the chief justice of Ontario.
The council is run on a day-to-day basis by the registrar, who is a lawyer.
Ms King worked in the public prosecutor’s office, for the Ontario equivalent of the Legal Aid Board, for the province’s courts service and for the attorney general before taking up the position as head of the council.
She is assisted by two assistant registrars and a secretary, and they are the contact point for the public and the media in relation to complaints against judges. They also act to provide support to the council in its work.
A complaint can start with an inquiry to the office. Ms King said that often the complainant is dissatisfied with the outcome of his or her case, and complains about the conduct of the judge as part of that. The council cannot deal with the judge’s decision or the exercise of his or her discretion, which can only be resolved by appeal, she said.
The office filters the complaints to ensure they fall under the judicial council legislation. They must be in writing and cannot be anonymous. They cannot relate to a case that is still ongoing, but must await its conclusion. Many complaints are filtered out at this stage, she said.
While there is no definition of what constitutes misconduct, the kind of allegations that are made include bias, discourtesy and abusive conduct. The process is confidential, and the office does not confirm or deny the existence of complaints unless and until they reach the point of a public hearing, which is rare.
The first stage of investigation is where a sub-committee of a judge and a lay member receives a complaint and gets a transcript of the hearing which gave rise to it. All court rooms have provision for full reports of proceedings, including both transcripts and audio-recordings.
This sub-committee either dismisses the complaint or recommends it go to a review panel made up of four – two judges, a lay person and a lawyer.
They do not know the identity of either the complainant or the judge, and they will examine the transcript and recordings. The judge will have the right to respond.
The panel then makes the decision whether to dismiss the complaint or whether there is a finding of misconduct.
It can refer the matter to the chief justice with or without a recommendation, refer the complaint to a mediator, or order a public hearing if the matter is considered sufficiently serious.
This can lead to a range of penalties, from a warning to a recommendation to the attorney general that the judge be removed from office, and including suspension for a period, either with or without pay.
In all cases, the complainant receives a letter outlining the outcome of the complaint, Ms King said.
“The closest we came to a removal was an allegation of inappropriate sexual innuendo and inappropriate touching. The judge resigned before the final hearing and the conclusion of the case,” she said.