Public pays millions for legal fees of federal judges under investigation
Judges in trouble have unlimited funding to fight disciplinary action against them. The Lori Douglas inquiry cost taxpayers $4.5 million.
An inquiry into the conduct of Manitoba Associate Chief Justice Lori Douglas, left, was abandoned after she announced she would seek early retirement. Superior Court of Quebec Justice Robert Flahiff, centre, was sentenced to three years in jail for money laundering, prompting an inquiry . He was recommended for removal and resigned. Ontario Justice Paul Cosgrove, right, was facing removal over his misconduct during a murder trial, which the committee found to be “pervasive in both scope and duration.” He resigned two days later.
Taxpayers have been dishing out millions of dollars to cover the legal fees of federal judges under investigation who are fighting the disciplinary process.
Judges facing complaints from the public get unlimited access to financial and legal resources. Some draw out public inquiries for years, by fighting all the way to the Supreme Court of Canada — at taxpayers’ expense.
The latest inquiry, into federally appointed Manitoba Associate Chief Justice Lori Douglas, who resigned in November after facing scrutiny over naked photos of her that were posted online, wound up in Federal Court. It has already cost taxpayers almost $4.5 million, according to official figures obtained by the Star.
Between 2011 and April this year, taxpayers were billed $1.5 million for Douglas’ legal fees through the Office of the Commissioner for Federal Judicial Affairs, and nearly $3 million for the Canadian Judicial Council’s expenses in the inquiry. The costs will continue into the current financial year.
Last week, the Star highlighted that fact that more than 99 per cent of complaints against federal judges are dealt with in secret by the council, which is made up exclusively of judges.
Established to investigate complaints against the country’s 1,200 federally appointed judges, the council conducts closed-door investigations into about 200 complaints every year, never revealing publicly the judge’s name or province, details of the allegations, or the results of the investigation.
The most serious complaints are dealt with via a public inquiry, where the council has the power to recommend that Parliament remove a judge from office.
Since 1990, only 11 judges have faced a public inquiry — representing fewer than 0.5 per cent of all complaints.
But in recent years, the sums the council has spent defending its inquiry process in court have started to outstrip the cost of reviewing complaints, said Norman Sabourin, the council’s executive director.
Sabourin says he has raised concerns with the justice minister about the lack of rules governing expenses paid for federal judges under investigation.
“A legitimate question to be asked is whether [significant] amounts of money should be paid to a judge, without any parameters,” Sabourin said.
“Judges certainly are entitled to get their legal fees publicly funded, but there have to be parameters. They can’t go running to Federal Court at every single stage of the process.”
Judges remain on paid leave during investigations. Even if they are stripped of office, they have the option of retiring or resigning to keep their pension — an option all those targeted for an inquiry so far have exercised.
Ontario Superior Court Justice Theodore (Ted) Matlow, who faced an inquiry in 2008 over his involvement in a citizens’ campaign opposed to a Toronto condo complex, estimated the total cost of his inquiry as up to $5 million. Matlow told the Star it would be “reasonable” to assume most public inquiries cost about $4 million.
Toronto constitutional lawyer Rocco Galati has called the disciplinary system “a royal waste of public funds.”
Every step of the process is set up in the judges’ favour — they are judged exclusively by their peers and have unlimited access to public funds to defend themselves, Galati said.
“A judge who should or would be removed can simply stall the process on full salary by bringing judicial reviews and stretching it out to a point where they can, at their own convenience, resign,” he said.
In contrast to almost all other disciplinary settings, including regulatory bodies that oversee provincial judges, justices of the peace and other professions, no rules govern the amount of money a federal judge can spend on legal defence, and no other disciplinary system funds appeals of its own decisions, Sabourin said.
Federal judges have a limit on the hourly fee that can be charged by their lawyers, but there’s no limit on the number of hours charged, he said. “Here, there are no parameters.”
Complaint proceedings into Ontario Justice Paul Cosgrove’s “pervasive” misconduct during a 1999 murder trial, where he wrongly declared that the OPP and Crown attorneys had committed more than 150 violations of the accused person’s charter rights, were drawn out for five years while he challenged the inquiry all the way to the Supreme Court of Canada. He lost in 2009.
Cosgrove was paid his $260,000 annual salary during the investigative process and court proceedings. He chose to resign two days after the council recommended Parliament remove him from office.
Similarly, the ongoing inquiry involving Quebec Superior Court Justice Michel Deziel, over allegations of illegal political financing before his appointment to the bench, has been drawn out by two applications filed to Federal Court. The inquiry began in April and both of Deziel’s applications were dismissed by courts for being “frivolous and premature,” Sabourin said.
“All the work that’s gone through has been funded, and my question is, should there not be a public policy about what should or should not be funded?”
The council has been holding informal discussions with the commissioner’s office and Minister of Justice Peter MacKay about changing the legislation, but Sabourin said “reform is not in our hands.”
“The CJC is not accountable for the funds, but if a judge to the tune of $1.5 million challenges everything we do, we have to respond,” he said.
The Office of the Commissioner for Federal Judicial Affairs could not provide a figure for the total cost of the 11 public inquiries involving federal judges since 1990; spokesperson Marc Giroux said the information was “not readily available.” He would not respond to questions about the council’s concerns.
MacKay asked for a review of the council’s investigative process earlier this year. A representative from the minister’s office responded that, “We look forward to the results of that review with a view to ensuring that taxpayers’ dollars are well spent.”
Last month, the Star revealed that Ontario taxpayers are picking up the legal bills of justices of the peace disciplined for offences including sexual harassment, falling asleep in court and demonstrating a “pervasive” lack of understanding of basic law.
Similarly, federal judges’ legal fees are always paid, regardless of whether they are removed from office or not.
This is different from the current practice governing provincial judges at disciplinary hearings held in Ontario.
Compensating the legal fees of provincial judges is up to the discretion of the Ontario Judicial Council. Since 2002, four Ontario judges have been found guilty of judicial misconduct — and not one has had his or her legal fees paid.
The Lori Douglas inquiry
The Canadian Judicial Council was created in 1971 to investigate complaints into federal judges. It is now spending more public money defending its processes than reviewing complaints.
The latest public inquiry, into Manitoba Associate Chief Justice Lori Douglas, who came under scrutiny after nude photos of her were posted online, cost the council nearly $3 million, communications director Johanna Laporte said.
Between 2011 and April this year, the council incurred costs for independent counsel, the non-judicial members of the inquiry committee, legal advisors, a lawyer to assist with judicial review applications and other costs relating to translation, court reporting, transcription services and security services, she said.
Independent counsel for the Douglas inquiry during the 2013-14 financial year cost $294,000 alone, according to the Public Accounts of Canada. The role of independent counsel is to present all the evidence, in favour and against the judge, in the public interest.
Douglas’ legal fees cost taxpayers $1.5 million, through the Office of the Commissioner for Federal Judicial Affairs.