BILL 46



An Act to Amend the Provincial Court Act

Her Majesty, by and with the advice and consent of the Legislative Assembly of New Brunswick, enacts as follows:

1Subsection 1(1) of the Provincial Court Act, chapter P-21 of the Revised Statutes, 1973, is amended

(a)by repealing the definition "chairman";

(b)by repealing the definition "Judicial Council";

(c)by adding after the definition "Minister" the following:

"misconduct" means misconduct as defined in section 22.41;

(d)by repealing the definition "panel".

2Section 4.4 of the Act is amended

(a)by repealing paragraph (1)(c) and substituting the following:

(c)upon the recommendation of a hearing committee under paragraph 22.55(2)(f),

(b)by repealing subsection (3) and substituting the following:

4.4(3)Part III.1 of the Act applies with the necessary modifications to a person who is on a panel established under subsection 4.3(1).

3Section 6 of the Act is repealed and the following is substituted:

6Subject to this Act, a judge holds office during good behaviour and may be removed from office only for misconduct.

4Section 6.1 of the Act is repealed.

5Section 6.2 of the Act is repealed.

6Section 6.3 of the Act is repealed.

7Section 6.4 of the Act is repealed.

8Section 6.5 of the Act is repealed.

9Section 6.6 of the Act is repealed.

10Section 6.7 of the Act is repealed.

11Section 6.8 of the Act is repealed.

12Section 6.9 of the Act is repealed.

13Section 6.10 of the Act is repealed.

14Section 6.11 of the Act is repealed.

15Section 6.12 of the Act is repealed.

16Section 6.13 of the Act is repealed.

17Subsection 13(2) of the Act is amended

(a)in paragraph (a) by striking out "or";

(b)by adding after paragraph (a) the following:

(a.1)a judge from becoming a member of the Judicial Council established under section 22.42, or

18The Act is amended by adding after section 22.4 the following:

PART III.1

JUDICIAL COUNCIL

22.41In this Part

"chairperson" means the chairperson of the Judicial Council, unless the context otherwise requires;

"complaint" means a complaint made under section 22.46;

"Council" means the Judicial Council established under section 22.42;

"Executive Secretary" means the Executive Secretary appointed under subsection 22.44(6);

"misconduct" means

(a)conduct unbecoming a judge,

(b)neglect of duty by a judge,

(c)inability or incapacity of a judge to perform his or her duties, or

(d)having been placed by one's conduct or otherwise in a position incompatible with the due execution of one's duties as a judge.

22.42(1)The Minister of Justice may

(a)enter into an agreement with the Minister of Justice of Nova Scotia and the Minister of Justice of Prince Edward Island to establish a Judicial Council, and

(b)agree with the Minister of Justice of Nova Scotia and the Minister of Justice of Prince Edward Island to amend the agreement.

22.42(2)An agreement referred to in subsection (1) shall specify

(a)the membership of the Council and the manner in which members are appointed or selected,

(b)where applicable, the term of members of the Council,

(c)the funding of the operating costs of the Council and the apportionment of such funding, including the costs of investigations by review committees and hearings by hearing committees and the remuneration of the Executive Secretary, and

(d)where applicable, the remuneration and expenses to be paid to members of the Council in relation to their duties on the Council or any committees under this Part.

22.42(3)An agreement referred to in subsection (1) may specify guidelines for the appointment of members of the Council to a review committee or hearing committee.

22.43(1)A majority of the members of the Council constitutes a quorum and a decision of the majority of those composing a quorum is the decision of the Council.

22.43(2)A vacancy on the Council does not impair the ability of the Council to act.

22.44(1)The members of the Council shall from among themselves elect a chairperson of the Council, who shall hold office for a term of two years or until his or her membership on the Council expires, whichever occurs first.

22.44(2)The members of the Council shall from among themselves elect a vice-chairperson of the Council who shall

(a)hold office for a term of two years or until his or her membership on the Council expires, whichever occurs first, and

(b)act in place of the chairperson in the event the chairperson is ill, absent or unable to act for any reason.

22.44(3)If the members of the Council agree, a member may participate in a meeting of the Council by telephone or other means of communication that permits all persons participating in the meeting to hear each other, and a member so participating is deemed to be present at the meeting.

22.44(4)The Council shall meet at least once a year and shall meet at other times as required at the call of the chairperson.

22.44(5)The Council may make by-laws not inconsistent with the agreement referred to in section 22.42 or with this Part for the organization and operation of the Council.

22.44(6)The Council may appoint an Executive Secretary who shall

(a)provide administrative services for the Council with regard to the complaint process set out in this Part,

(b)provide information to the public about the complaint process,

(c)receive and give notices and other documents on behalf of the chief judge, the chairperson, a review committee, a hearing committee or the Council,

(d)gather information for the chief judge for the purposes of reviewing and assessing complaints,

(e)make all administrative arrangements necessary for any hearing,

(f)assist in the preparation of annual and other reports, and

(g)perform such other administrative duties as the Council may assign.

22.44(7)Notwithstanding the agreement under section 22.42, the chairperson may appoint additional members to the Council on a temporary basis for the purpose of serving on a review or hearing committee appointed under this Part where the proceedings by or before the committee will be conducted in the French language.

22.44(8)A person appointed under subsection (7) is a member of the Council for that purpose only and the appointment is terminated upon the conclusion of the matter before the committee.

22.44(9)A person appointed under subsection (7) shall not be counted for the purposes of determining the quorum of the Council.

22.45Where the Council is deciding any matter

(a)all members of the Council are entitled to vote, other than members appointed under subsection 22.44(7),

(b)in the case of an equality of votes, the chairperson shall have a second and deciding vote, and

(c)all deliberations shall be held in private.

22.46(1)Any person may make a complaint to the Council alleging misconduct by a judge and the complaint shall be dealt with in accordance with this Part.

22.46(2)A complaint shall be in writing and signed by or on behalf of the complainant.

22.46(3)The Executive Secretary of the Council shall refer to the chief judge for review and assessment all written complaints received under this section alleging misconduct on the part of judges.

22.46(4)On receiving a complaint, the chief judge shall give a copy of the complaint to the judge who is the subject of the complaint.

22.47The conduct of a judge may be dealt with under this Part even though such conduct occurred before the commencement of this section.

22.48(1)In addition to reviewing and assessing a complaint referred under subsection 22.46(3), the chief judge may, on his or her own motion, review and assess any matter respecting misconduct of a judge that comes to his or her attention, and the matter shall be dealt with in the same manner as if the chief judge had received a complaint.

22.48(2)After receiving a complaint referred under subsection 22.46(3), the chief judge may

(a)resolve the complaint, if the chief judge obtains the agreement of the complainant and the judge,

(b)dismiss the complaint, if the chief judge is of the opinion that there is no basis for the complaint, and if a more appropriate avenue should be pursued by the complainant, advise the complainant of that fact, or

(c)refer the complaint in writing to the chairperson of the Council, and

shall notify the chairperson of the Council in writing of his or her action forthwith.

22.48(3)The chief judge shall give the complainant and the judge who is the subject of the complaint, notice in writing of his or her decision under subsection (2) within thirty days after the date the complaint was received by the chief judge, and the notice to the complainant shall include information about referring the complaint to the chairperson under subsection (4).

22.48(4)A complainant who is dissatisfied with the decision of the chief judge under paragraph (2)(b) or who has not been notified within the time period referred to in subsection (3) may, in writing, refer the complaint to the chairperson within thirty days after receiving a copy of the decision or after the expiry of the time period, as the case may be.

22.49(1)Where a complaint is referred under paragraph 22.48(2)(c) or subsection 22.48(4), the chairperson shall, as soon as possible and not later than twenty-one days after the receipt of the complaint,

(a)appoint a review committee of three persons from among the members of the Council to investigate the complaint, and

(b)designate one of the members of the review committee as chairperson of the committee.

22.49(2)A review committee shall investigate complaints alleging misconduct by judges and shall engage counsel to conduct proceedings before a hearing committee if a charge of misconduct is laid against a judge by the review committee.

22.49(3)An investigation by a review committee shall be completed within thirty days after the last member of the committee is appointed, unless the chairperson of the Council authorizes an extension.

22.49(4)The chief judge is not eligible to sit on a review committee.

22.49(5)A person who is appointed to a review committee continues to remain a member of the committee until the committee completes all matters with respect to a particular complaint or complaints against a judge, notwithstanding that his or her membership on the Council has expired or otherwise terminated.

22.49(6)Three members of a review committee constitute a quorum and a decision of the majority of the members is a decision of the committee.

22.49(7)If the members of a review committee agree, a member may participate in a meeting of the committee, by telephone or other means of communication that permits all persons participating in the meeting to hear each other, and a member so participating is deemed to be present at the meeting.

22.49(8)The chairperson of a review committee may appoint an investigator to assist the committee in its investigation.

22.49(9)A review committee and each member of the review committee has all the powers of a commissioner appointed under the Inquiries Act.

22.5(1)On referral of a complaint under this Part, a review committee shall

(a)give notice to the judge who is the subject of the complaint and to the chief judge, and

(b)consider the matter and conduct such investigation as it considers appropriate.

22.5(2)An investigation shall be conducted in private.

22.5(3)A review committee may investigate any other matter relating to misconduct by the judge that arises in the course of the investigation and if it does so,

(a)it shall give notice to the judge and the chief judge, and

(b)the matter shall be dealt with in the same manner as a complaint is dealt with under this Part.

22.51(1)After considering the complaint, a review committee may

(a)resolve the complaint, if it obtains the written agreement of the complainant and the judge,

(b)dismiss the complaint, or

(c)formulate a charge of misconduct against the judge, stating the grounds for the charge and refer the charge to the chairperson of the Judicial Council.

22.51(2)Where a review committee acts under paragraph (1)(c), it shall

(a)appoint counsel to prosecute the charge before a hearing committee, and

(b)in the case of a charge against the chief judge, send a copy of the charge to the Chief Justice of The Court of Queen's Bench of New Brunswick.

22.51(3)A review committee shall give the judge who is the subject of the complaint, the complainant and the chief judge

(a)a copy of its decision and reasons, if the committee makes a decision under paragraph (1)(a) or (b), or

(b)a copy of the charge, if the committee makes a decision under paragraph (1)(c).

22.51(4)The decision of a review committee is final and no appeal lies from the decision.

22.52On receiving a copy of a charge formulated against a judge, the chief judge may

(a)reassign the judge to administrative duties or to a different place, or

(b)suspend the judge with pay

until a hearing committee makes a decision with respect to the charge.

22.53(1)Upon receiving a charge under paragraph 22.51(1)(c), the chairperson of the Council shall, as soon as possible and not later than twenty-one days after receiving the charge,

(a)appoint a hearing committee of three persons from among the members of the Council to hear the complaint,

(b)designate one of the members of the hearing committee as chairperson of the committee, and

(c)lay the charge before the hearing committee forthwith after the last member of the committee is appointed.

22.53(2)A hearing committee shall adjudicate charges that are laid against a judge under paragraph (1)(c).

22.53(3)No person who is a member of the review committee who formulated a charge against a judge may be a member of the hearing committee with respect to that same charge.

22.53(4)The chief judge is not eligible to be a member of a hearing committee.

22.53(5)A person who is appointed to a hearing committee continues to remain a member of the committee until the committee completes all matters with respect to a particular charge or set of charges against a judge, notwithstanding that his or her membership on the Council has expired or otherwise terminated.

22.53(6)Three members of a hearing committee constitute a quorum and a decision of the majority of the members of the committee is the decision of the committee.

22.53(7)If the members of a hearing committee agree, a member may participate in a meeting of the committee, other than a hearing of the committee, by telephone or other means of communication that permits all persons participating in the meeting to hear each other, and a member so participating is deemed to be present at the meeting.

22.53(8)A hearing committee and each member of the hearing committee has all the powers of a commissioner appointed under the Inquiries Act.

22.54(1)Where a charge is laid against a judge before a hearing committee, the hearing committee shall hold a hearing to adjudicate the charge in accordance with this Part.

22.54(2)At least thirty days before the date of the hearing, a hearing committee shall give the judge against whom the charge is laid and the counsel appointed by the review committee under paragraph 22.51(2)(a), a notice of hearing stating the date, time and place of the hearing, and the notice shall state the particulars of the charge against the judge.

22.54(3)The counsel appointed by the review committee under paragraph 22.51(2)(a) has conduct of the proceedings and shall present the case before a hearing committee.

22.54(4)The judge against whom the charge is laid is entitled to be present at the hearing and to be represented by counsel.

22.54(5)At a hearing, the oral evidence of witnesses shall be taken on oath or solemn affirmation and there shall be a full right to cross-examine witnesses and adduce evidence.

22.54(6)A hearing committee may hear and accept any relevant evidence even though it is not admissible under the rules applying to trials in The Court of Queen's Bench of New Brunswick.

22.54(7)A hearing committee may, on proof that it has given notice of the hearing to the judge against whom the charge is laid, proceed with the hearing in the absence of the judge and decide on the charge in the same manner as if the judge were present.

22.54(8)A hearing shall be held in private unless the judge whose conduct is in question requests that it be held in public or the hearing committee determines that there are compelling reasons in the public interest that it be held in public.

22.54(9)A hearing shall commence not later than sixty days after the chairperson of the Council appoints the last member of the hearing committee.

22.55(1)After completing the hearing, a hearing committee may

(a)dismiss the charge, or

(b)find that there has been misconduct by the judge.

22.55(2)Where a hearing committee makes a finding under paragraph (1)(b), it may do any one or more of the following:

(a)reprimand the judge;

(b)suspend the judge with pay for a fixed term;

(c)order the judge to take a leave of absence with pay for the purpose of obtaining counselling, remedial treatment or instruction;

(d)order the judge to obtain counselling, remedial treatment or instruction;

(e)impose such other non-monetary sanctions as the Committee considers appropriate in the circumstances;

(f)recommend to the Lieutenant-Governor in Council that the judge be removed from office.

22.55(3)A judge who refuses to comply with paragraph (1)(c), (d) or (e) commits an act of misconduct.

22.55(4)A hearing committee shall give its decision, and the reasons for it, in writing.

22.55(5)A hearing committee shall give a copy of its decision and reasons to

(a)the judge against whom the charge was laid,

(b)the complainant,

(c)the counsel appointed by the review committee,

(d)the chairperson of the Council,

(e)the chief judge,

(f)the Minister, and

(g)the Lieutenant-Governor in Council, if a recommendation is made under paragraph 22.55(2)(f).

22.56The Lieutenant-Governor in Council, on receipt of the hearing committee's recommendation to remove the judge from office, shall remove the judge from office.

22.57Where a judge is removed from office, the Minister shall lay a copy of the Order in Council and all reports, evidence and correspondence relating to such removal before the Legislative Assembly if it is then sitting, or if not, at the next ensuing sitting.

22.58(1)Where a hearing committee dismisses a charge laid against a judge, it may make such order as to the reimbursement of the judge's costs on the hearing as it considers appropriate and such reimbursement shall be paid from the Consolidated Fund.

22.58(2)Where a judge retires or resigns before a hearing is completed or where the hearing committee finds there has been misconduct, the hearing committee may make such order as to costs to be paid by the judge as it considers appropriate.

22.58(3)A hearing committee may file an order of costs against a judge under subsection (2) in The Court of Queen's Bench of New Brunswick and, when filed, the order may be enforced in the same manner as a judgment of that court.

22.59(1)If a complaint is made about the chief judge or about another judge while a complaint about the chief judge is outstanding, the associate chief judge shall deal with the complaint and shall perform the duties and exercise the powers that the chief judge would otherwise perform with respect to a complaint under this Part.

22.59(2)If a review committee refers a charge against the chief judge under paragraph 22.51(1)(c), the Chief Justice of The Court of Queen's Bench of New Brunswick may suspend the chief judge as chief judge with pay until a hearing committee makes a decision with respect to the charge.

22.6(1)No action for damages or other proceeding shall be instituted against the Judicial Council, a review committee, a hearing committee or any person engaged by them or any member or officer of the Judicial Council, a review committee or hearing committee or any person acting under their authority for any act done in good faith in the execution or intended execution of any duty or power or for any alleged neglect or default in the execution in good faith of any such duty or power.

22.6(2)Subsection (1) does not apply to prevent an application for judicial review.

22.61(1)The Council shall report annually to the Minister on matters under this Part and the report shall include

(a)a summary of the complaints referred to the chief judge during the year and the decision of the chief judge with respect to each complaint,

(b)a summary of each complaint referred to a review committee during the year and the decision of the committee with respect to the complaint, and

(c)a summary of each charge laid before a hearing committee and the disposition of the charge by the hearing committee.

22.61(2)The annual report referred to in subsection (1) shall not include information that would identify the judge or the complainant except where a hearing has been held in public under subsection 22.54(8).

22.61(3)The annual report shall be provided within three months after the end of the fiscal year of the Province.

22.61(4)The Minister shall lay the report before the Legislative Assembly, if it is then sitting, or if not, at the next ensuing sitting.

22.61(5)In paragraph (1)(a), "complaints" includes those matters dealt with by the chief judge under subsection 22.48(1).

22.62(1)A notice or other document to be given to a person under this Part shall be in writing and may be given

(a)by leaving a copy of the notice or other document with the person, or

(b)by sending a copy of the notice or other document, together with an acknowledgement of receipt card, by mail to the person.

22.62(2)Notice given by mail under paragraph (1)(b) is effective

(a)only if the acknowledgement of receipt card or a post office receipt, bearing the signature of the person to be given the notice or document, is received by the person giving the notice or document, and

(b)as of the date the person who is to be given the notice or document receives it.

19Section 23.1 of the Act is repealed.

20All written communications suggesting misconduct, neglect of duty or inability to perform duties on the part of a judge that were received by the Judicial Council before the commencement of this section shall be dealt with and concluded as though this Act had not come into force.

21This Act or any provision of this Act comes into force on a day or days to be fixed by proclamation.

EXPLANATORY NOTES

Section 1

The definitions "chairman","Judicial Council" and "panel" are repealed. The definition "misconduct" is added.

Section 2

(a)This amendment is consequential on the amendment in section 18 of this amending Act. The existing provision is as follows:

4.4(1)The Lieutenant-Governor in Council shall not remove a person from the panel established under subsection 4.3(1) except ...

(c)upon the recommendation of the Judicial Council, or

(b)This amendment is consequential on the amendment in section 18 of this amending Act. The existing provision is as follows:

4.4(3)Sections 6 to 6.13 apply with the necessary modifications to a person who is on the panel established under subsection 4.3(1).

Section 3

The existing provision is as follows:

6Subject to this Act, a judge holds office during good behaviour and may be removed from office only for misconduct, neglect of duty or inability to perform his duties.

Sections 4 to 16

These amendments are consequential on the amendments in section 18. The existing provisions are as follows:

6.1(1)There is hereby continued a Judicial Council which shall be composed of

(a)the Chief Justice of New Brunswick, who shall be chairman,

(b)a judge of The Court of Appeal of New Brunswick, who shall be appointed by the Chief Justice of New Brunswick and who shall be the vice-chairman,

(c)three judges of The Court of Queen's Bench of New Brunswick who shall be appointed by the Chief Justice of that Court, of whom the Chief Justice of The Court of Queen's Bench of New Brunswick may be one of the appointees,

(d)two judges other than the chief judge or associate chief judge, who shall be appointed by the chief judge, and

(e)three other persons who shall be appointed by the Lieutenant-Governor in Council.

6.1(2)A person appointed to the Judicial Council continues as a member of the Judicial Council until a successor is appointed.

6.1(3)The vice-chairman of the Judicial Council shall act in place of the chairman when the chairman is absent or unable to act.

6.1(4)The persons appointed to the Judicial Council in accordance with paragraph 6.1(1)(e) shall be paid such remuneration and expenses as the Lieutenant-Governor in Council determines.

6.2The Registrar of The Court of Appeal of New Brunswick shall serve as secretary to the Judicial Council.

6.3A majority of the members of the Judicial Council constitutes a quorum and is sufficient for the exercise of all the jurisdiction and powers of the Judicial Council.

6.4(1)Subject to subsection (2), where the Judicial Council is deciding any matter

(a)all members of the Judicial Council are entitled to vote,

(b)in the case of an equality of votes, the chairman shall have the deciding vote, and

(c)all deliberations shall be held in private.

6.4(2)Where the Judicial Council is deciding any matter respecting a judge appointed under paragraph 6.1(1)(d) whose conduct is the subject of a written communication under subsection 6.6(1) or (3), the judge is not entitled to vote on or participate in decisions of the Judicial Council respecting such matter.

6.4(3)The chairman may release the results of deliberations by the Judicial Council where there are compelling reasons in the public interest for such release.

6.5The conduct of a judge may be dealt with under this Act even though such conduct occurred prior to the commencement of this section.

6.6(1)The Judicial Council shall receive and the chairman shall refer to the chief judge for investigation all written communications suggesting any misconduct, neglect of duty or inability to perform duties on the part of a judge.

6.6(2)Notwithstanding subsection (1), where the Judicial Council receives a written communication suggesting any misconduct, neglect of duty or inability to perform duties on the part of the chief judge, the chairman shall refer it to the associate chief judge for investigation.

6.6(3)Where a written communication comes to the attention of the chief judge, whether by way of referral from the chairman or otherwise, suggesting any misconduct, neglect of duty or inability to perform duties on the part of a judge, the chief judge shall investigate the matter.

6.7(1)The chairman shall designate one or more members of the Judicial Council for the purpose of receiving reports referred to in this section.

6.7(2)Where a written communication is received by the chief judge or associate chief judge, whether by way of referral from the chairman or otherwise, the chief judge or associate chief judge, as the case may be, shall within fifteen days after receiving the written communication, or within such longer period as the chairman permits, report on the results of the investigation to a member of the Judicial Council who has been designated by the chairman for that purpose.

6.7(3)Based upon the report, the member of the Judicial Council who receives the report shall, within ten days after receiving the report, recommend to the chairman whether or not an inquiry should be held.

6.7(4)A recommendation that an inquiry not be held is subject to review by the Judicial Council which may determine that an inquiry should be held.

6.7(5)A recommendation that an inquiry be held is not subject to review by the Judicial Council.

6.8(1)At any time after the receipt of a written communication suggesting misconduct, neglect of duty or inability to perform duties on the part of a judge, the Judicial Council may suspend the judge whose conduct is in question from the performance of the judge's duties with pay, pending the outcome of an investigation, inquiry or formal hearing, and may lift the suspension prior to the conclusion of an investigation, inquiry or formal hearing, where a change in circumstances warrants the lifting of the suspension.

6.8(2)Where a recommendation is made to the Lieutenant-Governor in Council under paragraph 6.11(4)(d), the Judicial Council may suspend the judge whose conduct is in question or may continue a suspension until the judge is removed from office.

6.9(1)Where an inquiry is recommended under subsection 6.7(3) or where the Judicial Council determines on review under subsection 6.7(4) that an inquiry should be held, the chairman shall

(a)appoint a panel consisting of three members of the Judicial Council, one of whom shall be a person appointed to the Judicial Council in accordance with paragraph 6.1(1)(e), to conduct an inquiry,

(b)appoint a barrister to act as counsel to the panel, and

(c)designate one of the members of the panel, other than a judge of the court, as the panel chairman.

6.9(2)The appointment of the counsel to the panel may be revoked at any time and another barrister may be appointed to act as the counsel to the panel.

6.9(3)A decision by a majority of the members of the panel is a decision of the panel.

6.9(4)For the purposes of the inquiry, the panel chairman may, by summons, require the attendance before the counsel to the panel of any person whose evidence may be material to the subject of the inquiry and may order any person to produce such papers and documents as appear necessary.

6.9(5)A person summoned under subsection (4) shall attend and answer all questions put by the counsel to the panel respecting the subject of the inquiry and shall produce such papers and documents as the counsel to the panel may require.

6.9(6)Where a person summoned under subsection (4) fails to comply with the requirements of subsection (5), the provisions of section 6 of the Inquiries Act apply with the necessary modifications.

6.9(7)The counsel to the panel shall inquire into the suggestions of misconduct, neglect of duty or inability to perform duties on the part of a judge received in a written communication referred to in section 6.6 for the purpose of gathering all information that may be relevant to preparing a formal complaint.

6.9(8)The counsel to the panel shall present the findings to the panel who shall then determine whether there is sufficient evidence to warrant holding a formal hearing.

6.9(9)Where the panel determines that there is not sufficient evidence to warrant holding a formal hearing, the panel shall advise the Judicial Council that no further proceedings shall be taken and shall give the reasons for the decision.

6.9(10)Where the panel determines that there is sufficient evidence to warrant holding a formal hearing, the panel shall advise the Judicial Council that a formal hearing is to be conducted and shall instruct the counsel to the panel to prepare a formal complaint setting forth the allegations of misconduct, neglect of duty or inability to perform duties against the judge whose conduct is in question.

6.9(11)The determinations of the panel referred to in subsections (9) and (10) are not subject to review by the Judicial Council.

6.10(1)Where the panel has made a determination under subsection 6.9(10), it shall conduct a formal hearing respecting the allegations set forth in the formal complaint referred to in subsection 6.9(10) and it has all the powers of a commissioner under the Inquiries Act.

6.10(2)Where a formal hearing is to be held, it shall commence not later than ninety days after the receipt of the report from the chief judge or associate chief judge under subsection 6.7(2).

6.10(3)Notice of the formal hearing together with a copy of the formal complaint referred to in subsection 6.9(10) shall be served on the judge whose conduct is in question in accordance with the regulations.

6.10(4)The counsel to the panel shall act as the prosecutor at the formal hearing.

6.10(5)A formal hearing shall be held in private unless the judge whose conduct is in question requests that it be held in public or the Judicial Council determines that there are compelling reasons in the public interest that it be held in public.

6.11(1)After the formal hearing, the panel shall report to the chairman its findings of fact and its findings as to the allegations of misconduct, neglect of duty or inability to perform duties of the judge whose conduct is in question.

6.11(2)The chairman shall place the report of the panel before the Judicial Council for a decision.

6.11(3)The Judicial Council shall give a copy of the report of the findings of the panel to the judge whose conduct is in question and shall advise the judge of the judge's right to make representations to it either in person or through counsel and either orally or in writing, respecting the report prior to the taking of action by the Judicial Council under subsection (4).

6.11(4)Based on the findings contained in the report and the representations, if any, made under subsection (3), the Judicial Council may

(a)dismiss the complaint,

(b)direct the chief judge to issue a reprimand to the judge with such conditions as the Judicial Council considers appropriate,

(c)where the conduct of the chief judge is in question, reprimand the chief judge with such conditions as the Judicial Council considers appropriate, or

(d)recommend to the Lieutenant-Governor in Council that the judge be removed from office.

6.11(5)Where the Judicial Council dismisses the complaint, it may make such order as to the reimbursement of the judge's costs on the formal hearing as it considers appropriate and such reimbursement shall be paid from the Consolidated Fund.

6.11(6)The chief judge shall on the receipt of the Judicial Council's directive under paragraph (4)(b) issue a reprimand with such conditions as the Judicial Council considers appropriate.

6.11(7)Failure on the part of a judge to comply with conditions imposed under paragraph (4)(c) or subsection (6) shall be deemed to constitute misconduct under section 6.

6.11(8)The Lieutenant-Governor in Council shall, on receipt of the Judicial Council's recommendation under paragraph (4)(d), remove the judge from office.

6.11(9)Where a judge is removed from office, a copy of the Order in Council and all reports, evidence and correspondence relating to such removal shall be laid before the Legislative Assembly by the Minister if it is then sitting, or if not, at the next ensuing sitting.

6.12(1)The Judicial Council shall advise each person who submitted a written communication under section 6.6 of the disposition of the matter by the Judicial Council.

6.12(2)The Judicial Council shall report to the Minister on the disposition of each matter dealt with by it, but the report shall not be made public unless the Judicial Council determines that there are compelling reasons in the public interest that it be made public.

6.12(3)A report received by the Minister under subsection (2) is not subject to disclosure under the Right to Information Act.

6.13No action or other proceeding for damages shall be instituted against the Judicial Council or any member or officer of it or any person acting under the authority of the Judicial Council for any act done in good faith in the execution or intended execution of the Judicial Council's or the person's duty.

Section 17

This amendment is consequential on the amendment in section 18 of this amending Act.

Section 18

The new Part III.1 of the Act authorizes the Minister of Justice to establish a Judicial Council by agreement with the Ministers of Justice of the Provinces of Nova Scotia and Prince Edward Island. The agreement will provide for the membership of the Council and the funding of the Council, among other things.

This Part also establishes the procedure by which the Judicial Council will receive and deal with complaints of misconduct against a judge and provides for the penalties that may be imposed if there is a finding of misconduct on the part of a judge.The Judicial Council is required to report to the Minister of Justice on its handling of complaints on a yearly basis, with the report being tabled before the Legislative Assembly by the Minister.

Section 19

The existing provision is as follows:

23.1The Lieutenant-Governor in Council, on the recommendation of the Judicial Council, may make regulations respecting

(a)service of the notice of the formal hearing and a copy of the formal complaint under section 6.10;

(b)the procedure to be used in conducting a formal hearing referred to in section 6.10;

(c)forms under sections 6.9 and 6.10; and

(d)the payment of professional fees and disbursements of the counsel to the panel and costs associated with an inquiry or formal hearing.

Section 20

Complaints about the conduct of a judge that were received before the proclamation of this amending Act are to be dealt with as though this amending Act had not been enacted.

Section 21

Commencement provision.

Chapter Outline Update

Section 1

(a)Strike out "chairman -- président"

(b)Strike out "Judicial Council -- Conseil de la magistrature"

(c)Add after the definition "Minister -- Ministre" the following:

"misconduct -- inconduite"

(d)Strike out "panel -- comité"

Section 2

No change.

Section 3

No change.

Sections 4 to 16

Strike out sections 6.1, 6.2, 6.3, 6.4, 6.5, 6.6, 6.7, 6.8, 6.9, 6.10, 6.11, 6.12 and 6.13 and substitute the following:

Repealed 6.1

Repealed 6.2

Repealed 6.3

Repealed 6.4

Repealed 6.5

Repealed 6.6

Repealed 6.7

Repealed 6.8

Repealed 6.9

Repealed 6.10

Repealed 6.11

Repealed 6.12

Repealed 6.13

Section 17

No change.

Section 18

Add after section 22.4 the following:

PART III.1

JUDICIAL COUNCIL

Definitions 22.41

Agreement to establish Judicial Council 22.42

Operation of Council 22.43 - 22.45

Complaints respecting conduct of judge 22.46, 22.47

Review of complaint by chief judge 22.48

Review committee 22.49

Investigation by review committee 22.5

Decision of review committee 22.51


Action by chief judge pending hearing 22.52

Hearing committee 22.53

Hearing 22.54

Decision of hearing committee 22.55

Removal of judge from office 22.56

Report on disposition of matter 22.57

Costs 22.58

Complaint against chief judge 22.59

Immunity 22.6

Annual report 22.61

How notice to be given 22.62

Section 19

Strike out section 23.1 and substitute the following:

Repealed 23.1

Endorse: Hon. James Lockyer, Q.C.


Last Modified: 11:26am , February 11, 1998