by Alexander Ostroff

Last week, in California, a judge was removed from office after voters elected to recall him in the aftermath of a high profile sexual assault trial.1. In that trial, the accused was convicted and the judge imposed a sentence that fell within the lawful exercise of his discretion, but there was widespread public opinion that the sentence was overly lenient. Shortly after the trial, California law was changed to increase the mandatory minimum sentence for that charge. After members of the public filed complaints, an independent state agency in California with the power to discipline and remove judges from office conducted an investigation and released a report, in which they did not find that there had been judicial misconduct. However, in California, trial judges are elected, and can be removed from office as the result of a public recall vote. The impact of this highly-visible and unpopular decision affected the public enough for a successful electoral campaign to have the judge removed before the end of his term. This case raises interesting questions about judicial accountability and judicial independence and is an interesting contrast to the different balance that is struck between these important values in the Canadian legal system.

In Canada, all judges are appointed, and cannot be removed by popular vote. A trial judge’s individual decisions on conviction or sentence can be appealed to higher courts. If a court of appeal finds that the judge made an error, a new trial will be ordered, the decision will be corrected, or a more appropriate sentence will be imposed. However, a judge cannot be removed from office simply because an appellate court finds that the judge made a legal error in a particular case.

Federally-appointed Superior Court judges can only be removed from office by Parliament, after both the House of Commons and the Senate pass motions to do so. The Canadian Judicial Council, a body of Chief Justices and Associate Chief Justices from across Canada, investigate complaints about federally-appointed judges. Any member of the public can submit such a complaint. This ensures that public concerns about judges are heard and seriously considered. However, these complaints must be about the conduct of a judge and not their decision. Such conduct can include comments made during trials, comments made to reporters, or abuse of judicial powers. The appropriate venue for complaints about a trial judge’s decision is for the review of the decision by appellate courts.

As a result of the review and investigation of a complaint, if the Council finds that the complaint has merit but is not sufficiently serious to potentially warrant a judge’s removal, the Council can issue an official expression of concern, or recommend that the judge undergo counselling, remedial education, or other specific actions to address the issue. If the complaint is serious enough that it could merit the removal of the judge from office, the matter is referred to an official Inquiry Committee, which holds a public hearing on the complaint at which evidence is heard. If a provincial Attorney General or the federal Minister of Justice refers a complaint to the Canadian Judicial Council, an Inquiry Committee must be appointed. The Inquiry Committee prepares a report for the full Council, which then considers whether the judge’s conduct has rendered the judge incapable of executing their judicial office. If so, a recommendation will be made to Parliament for their removal.

The most recent Report to the Minister of Justice that made such a recommendation was released in March 2017, in which the Council recommended that Justice Robin Camp be removed from office. Justice Camp resigned instead of being removed by Parliament. Although this recommendation arose from a single sexual assault trial, unlike the case in California, it was not due to the outcome. (Indeed, the accused was acquitted a second time at a subsequent retrial.) The Council’s recommendation was the result of comments and questions made by the judge during the trial about the complainant and the evolution of Canadian law on sexual assault, which the Council found undermined public confidence in his ability to act as an impartial judge.

In my view, the Canadian approach to judicial accountability is the right one. Judges must be free to make legally correct but politically unpopular decisions, and judicial independence must not be subject to the whims of the public. The investigation of potential judicial misconduct and the discipline of judges must take place fairly and consistently, and judges must apply the criminal law in a uniform manner across all of Canada – not based on the peculiarities of local or regional politics. Bodies such as the Canadian Judicial Council allow for judicial accountability in a transparent and fair process that takes into account the importance of public confidence in the judiciary and permits the concerns of the public to be heard and addressed. However, if judicial independence were not insulated from voting and politics, electoral structures would encourage judges to place undue emphasis on public opinion when deciding matters of law, out of concern for their continued employment. This could subconsciously discourage leniency and incentivize the imposition of harsher sentences in all cases, rather than considering individual offenders’ prospects for rehabilitation and reintegration into society. In Canada, this could also have a subconscious impact on trial judge’s decisions with respect to Charter rulings, the admission of evidence obtained as a result of Charter violations, and other decisions related to procedural rights that are sometimes decried as ‘technicalities’ by politicians or members of the public. The risks of the impact of public referenda on the removal of judges, and, more generally, of elected judges, is not purely theoretical. Some studies in the United States have suggested that this is exactly what occurs in jurisdictions where judges are elected rather than appointed.2.

1. https://www.nytimes.com/2018/06/06/us/politics/judge-persky-brock-turner-recall.html

2. Richard R. W. Brooks, Steven Raphael, ‘Life Terms or Death Sentences: The Uneasy Relationship between Judicial Elections and Capital Punishment, 92 J. Crim L. & Criminology 609 (2001-2002)
Carlos Berdejó, Noam Yuchtman, ‘Crime, Punishment, and Politics: An Analysis of Political Cycles in Criminal Sentencing, 95(3) Rev. of Economics & Statistics 741, (2012-2013).


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