on the Appointment of Judges

Transcription

1 Protoco on the Appointment of Judges to Commissions of Inquiry Adopted by the Canadian Judicia Counci August 2010

2 Her Majesty the Queen in Right of Canada, 2010 Cataogue Number: JU14-21/2010 ISBN: Canadian Judicia Counci Ottawa, Ontario Canada K1A 0W8 Teephone: (613) Fax: (613) Emai: Aso avaiabe on the Counci s Web site at

3 INTRODUCTION Pubic inquiries are a unique institution that serve a specia purpose in Canada s system of governance. Justice Antonio Lamer (as he then was) described them this way: There is no doubt that commissions of inquiry at both the federa and provincia eves have payed an important roe in the machinery of government [and] in particuar served to suppement the mainstream of institutions of government. Starr v. Houden, [1990] 1 S.C.R at When the government seeks to appoint a sitting judge as commissioner of a pubic inquiry that it proposes to estabish, it is important for a Chief Justice and the judge being asked to undertake the inquiry to be abe to refer to guideines that address potentia risks for pubic confidence in judges and their independence. Whie it is appropriate for the judiciary to respond positivey to such requests, some caution is required. The Protoco deveoped by the Canadian Judicia Counci aims at providing information and guidance for federay appointed judges and others interested. Protoco deveoped by the Canadian Judicia Counci on the Appointment of Federay Appointed Judges to Commissions of Inquiry 1

4 1. REQUESTS FROM GOVERNMENT There are a number of imperatives surrounding a request from government to appoint a judge to a commission of inquiry. (A) The request by government to appoint a judge as commissioner of a pubic inquiry shoud be made in the first instance to the Chief Justice of the court on which the judge sits. (B) (C) The request shoud be accompanied by the proposed terms of reference for the inquiry. The Chief Justice shoud be advised if the request has previousy been made to any other Chief Justice. (D) The constitutiona principe of judicia independence requires the approva of both the Chief Justice and the judge before the judge is appointed as commissioner. Therefore, the government shoud not approach an individua judge either directy or indirecty unti the Chief Justice has had a chance to consider the request and discuss it with the judge. A judge who is approached directy must not accept an appointment and must advise the Chief Justice that he has been approached. (E) (F) The Chief Justice shoud be given sufficient time to fuy consider the response. Even if a request is deemed extremey urgent, the government must respect the need for time to propery consider the request. The Chief Justice may wish to consut other Chief Justices who have received simiar requests in the past, as we as other judges incuding those with reevant prior experience. The Canadian Judicia Counci may wish to consider forming a resource group of judges with prior experience who coud be avaiabe on short notice to give advice. 2 Protoco deveoped by the Canadian Judicia Counci on the Appointment of Federay Appointed Judges to Commissions of Inquiry

5 2. CONSIDERATIONS FOR THE CHIEF JUSTICE Severa fundamenta considerations arise for a Chief Justice who receives a request from government to appoint a judge to a commission of inquiry. (A) It is important that the Chief Justice be satisfied that the work of the court wi not be impaired if the judge accepts the appointment. This requires a reaistic estimate of the ikey duration of the inquiry. In appropriate circumstances, the Chief Justice shoud consider whether it is necessary to create an additiona judicia position to ensure that the court can continue to discharge its responsibiities. If this is necessary, it is best done at the time the government request is received. (B) (C) If the governement requests a particuar judge, it is equay important to determine if he or she is an appropriate choice. Whie recognizing that judges across the country possess numerous quaities and attributes, heading an inquiry may invove specia circumstances that require paying attention to additiona considerations. Whie a judges are presumed to be respected members of the judiciary who demonstrate fairness, civiity and firmness, inquiries can demand other quaities as we. Robust heath and abundant energy are needed to cope with the proonged pressure. Significant management skis are needed to administer an effective work pan, personne and budgets measured in miions of doars. The judge must be abe to work effectivey and efficienty in the gare of pubicity, in an atmosphere which may be quite different from an adversaria contest between itigants. If recommendations are caed for, the judge shoud be comfortabe with poicy issues. If the government s request for a particuar judge raises concerns for the Chief Justice, absent unusua circumstances, the Chief Justice shoud discuss them first with the judge and then with the government so that an appropriate appointment can be made. A sound choice is very important for the government, the judiciary, and the pubic. Finay, the Chief Justice and the judge shoud consider whether the subject matter of the proposed inquiry is of sufficient pubic importance and of such a nature as to warrant the invovement of a judge. In addition, the Chief Justice and the judge shoud consider whether the inquiry invoves issues of such a poiticay partisan nature that the invovement of a judge woud compromise the independence of the judiciary. In particuar, the Chief Justice and the judge shoud consider whether the inquiry essentiay invoves investigating the conduct of government agencies or estabishing if certain individuas have committed a crime or a civi wrong, and whether if the inquiry requires a egay-trained commissioner the court shoud fee obiged to appoint a judge or if a senior awyer coud perform the function equay we. Protoco deveoped by the Canadian Judicia Counci on the Appointment of Federay Appointed Judges to Commissions of Inquiry 3

6 3. CONSIDERATIONS FOR THE CHIEF JUSTICE AND THE JUDGE If the Chief Justice agrees to appoint a judge to a commission of inquiry and a particuar judge is identified, the government wi invite that judge to accept the appointment. At that point, a number of additiona considerations arise. Whie recognizing that caing an inquiry and setting its terms of reference are matters for the executive branch of government, it is important to carefuy consider both the governing egisation authorizing the inquiry and the draft Order in Counci containing the terms of reference. The governing egisation deserves particuar attention. Historicay, pubic inquiries egisation, whether federa or provincia, has imposed few constraints on the conduct of these inquiries. That approach has served Canada we. Commissions of inquiry have been aowed to conduct fu and independent investigations into events and circumstances, often invoving the activities of government itsef, that have ed to their estabishment. This independence has been essentia in maintaining pubic confidence in pubic inquiries and in those, incuding judges, who conduct them. Whie the executive branch may seek to impose constraints on an inquiry through particuar terms in the Order in Counci, if the governing egisation aows it, such constraints shoud be of particuar concern for judicia independence. Any constraints shoud be carefuy examined to see if egisation that seeks increased accountabiity may, by doing so, make it poiticay easier for the executive branch to curtai the independent conduct of inquiries through terms in the Order in Counci that may be required or permitted by that egisation. The greater the constraints in the governing egisation and/or the Order in Counci, the more care shoud be taken. Because of concerns for judicia independence, more constraints wi undoubtedy mean more reuctance on the part of the Chief Justices to agree that judges be appointed to commissions of inquiry. The foowing are exampes of constraints that may be imposed in the governing egisation and/or the Order in Counci and that woud raise concerns for judicia independence: Where the egisation provides that the Order in Counci estabishing the inquiry must set a date for deivering the report, with no requirement to consut the judge conducting the inquiry and no mention of the possibiity of extending the deadine. Where the egisation requires that the inquiry be conducted according to broad and undefined principes, which woud make it possibe for the executive branch to interfere based on its view of these principes and for any participant to request a judicia review. Where the egisation imits the power of the commission of inquiry to hod pubic hearings. Where the egisation does not aow the commission of inquiry to estabish a budget based on the needs of the inquiry. 4 Protoco deveoped by the Canadian Judicia Counci on the Appointment of Federay Appointed Judges to Commissions of Inquiry

7 Where the egisation aows the Minister to pubish unfinished works of the commission of inquiry as if they had been pubished by the commission itsef. Where the egisation requires the executive branch to assign roes and responsibiities to individua members of a commission of inquiry, if severa members are appointed. The draft Order in Counci aso deserves carefu attention, particuary by the judge who wi be conducting the inquiry. The judge perhaps through the office of his or her Chief Justice shoud fee free to suggest appropriate changes to the draft Order in Counci before it is adopted. It may be usefu to consut with other Chief Justices or the resource group referred to earier. Even in the face of perceived urgency, taking the time to structure the inquiry propery is important for the government, the judiciary and the pubic interest. (A) In considering the draft Order in Counci, a judge and his or her Chief Justice shoud bear in mind that the mandate of the commission of inquiry is important. It shoud not be so broad and genera that the inquiry cannot be done effectivey. Nor shoud it excude issues that the pubic wi expect to be investigated, if the inquiry is to be fu, independent and objective. (B) (C) If the government proposes that mutipe commissioners sit with the judge, consideration shoud be given to whether having more than one commissioner wi impair the judge s independence and fact finding abiity. If the government proposes to imit the duration of the inquiry, this shoud be done at the beginning rather than during the inquiry. If a time imit is proposed, consideration shoud be given to whether the mandate can be propery discharged within that time, keeping in mind the government s need for expeditious poicy recommendations and the usefuness of time imits in aowing the judge to proceed efficienty. Utimatey the judge wi wish to be assured that the proposed time imit is reaistic and wi enabe the commission to discharge its responsibiities in a timey, effective and ordery manner and in accordance with the pubic interest, and that, if necessary, it woud be possibe to extend the proposed time imit. (D) If the government proposes that a or most of the inquiry be conducted in private, consideration shoud be given to whether doing so woud have a negative impact on the pubic s confidence in the judge or the judiciary. (E) (F) If the commission of inquiry is charged with investigating a part of the government itsef, consideration shoud be given to incuding in the Order in Counci a cear and expicit commitment by the government to fuy cooperate with the work of the commission. The judge must be assured of having sufficient administrative independence from government to aow the commission of inquiry to propery discharge its mandate. This shoud incude a method of setting the budget for the inquiry that is satisfactory to both the government and the judge. The judge shoud exercise caution before agreeing to take on responsibiity for funding provided to parties with standing. The judge shoud aso have compete independence in seecting his or her staff, in particuar the commission counse and the commission Secretary or Executive Director. (G) The judge must be assured that once the inquiry is estabished, the Order in Counci wi not be changed without consuting the judge and the Chief Justice. Protoco deveoped by the Canadian Judicia Counci on the Appointment of Federay Appointed Judges to Commissions of Inquiry 5

8 (H) It must be cear to a from the beginning that judicia independence requires that once the commission of inquiry has submitted its report, the judge cannot engage in pubic debate about the inquiry or the report. Assuming such a partisan roe coud refect adversey on judicia independence. The judge s findings and recommendations to government shoud speak for themseves. (I) (J) (K) The Chief Justice and the judge shoud determine if there are other ongoing processes, incuding any crimina investigation reating to the subject matter of the inquiry, and if so, how those processes might affect the conduct of the inquiry. It is recognized that the appointment of a judge to a commission of inquiry is not incompatibe with the judge s duties under the Judges Act. However, since the judge is not exercising norma judicia functions, the government must take steps to provide the judge with ega representation possiby through the Office of the Commissioner for Federa Judicia Affairs shoud that be necessary as a resut of the judge serving as commissioner. In conducting an inquiry, a judge shoud aways strive to attain the high standards described in Ethica Principes for Judges. The Canadian Judicia Counci may estabish a database of best practices and terms to be incuded in an Order in Counci. This coud address such subjects as budget independence, free choice of commission counse, and fu government cooperation. Such a data base coud be easiy consuted when a Chief Justice and a judge are considering a government request to appoint a judge to a commission of inquiry. CONCLUSION Pubic inquiries chaired by judges pay a very vauabe roe in Canada. They do, however, present risks to the judiciary. The objective of these guideines is to ensure that the judiciary can continue to serve the pubic interest in this important way when asked to do so, whie at the same time maintaining pubic respect and confidence for the judicia office and the independence of the judiciary. 6 Protoco deveoped by the Canadian Judicia Counci on the Appointment of Federay Appointed Judges to Commissions of Inquiry