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The Provincial Court Amendment Act

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S.M. 1994, c. 14

The Provincial Court Amendment Act

(Assented to July 5, 1994)

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:

C.C.S.M. c. C275 amended

1           The Provincial Court Act is amended by this Act.

2           Section 1 is amended by repealing the definition "Judicial Council".

3           Clause 3.1(2)(e) of the French version is amended by striking out "division manitobaine" and substituting "Division du Manitoba".

4           Section 8.1 is amended by renumbering subsection (1) as section 8.1 and by repealing subsections (2) and (3).

5           Section 12 is repealed and the following is substituted:

Court sittings and judge's residence

12(1)       The minister may, after consultation with the Chief Judge, designate

(a) places in the province where the court shall sit; and

(b) the place where a judge appointed on a full-time basis shall establish residence.

Change of residence

12(2)       Where a judge establishes residence in accordance with clause (1)(b), or before the coming into force of this subsection had established residence in the designated place, the judge shall not afterwards

(a) be required to move the residence to another place, unless the judge consents to the move; or

(b) move the residence outside the designated place unless the Chief Judge, after consultation with the minister approves the move.

6           Part IV is repealed and the following substituted:

PART IV

COMPLAINTS ABOUT JUDICIAL CONDUCT

Definitions

27          In this Part,

"administrator" means the person appointed as administrator under section 38; (« administrateur »)

"board" means the Judicial Inquiry Board established under subsection 32(1); (« Commission »)

"council" means the Judicial Council established under subsection 37(1); (« Conseil »)

"misconduct" includes

(a) conduct unbecoming a judge,

(b) neglect of duty by a judge, and

(c) inability or incapacity of a judge to perform his or her duties. (« inconduite »)

COMPLAINTS

Complaints

28(1)       Any person may make a complaint to the Chief Judge alleging misconduct by a judge and the complaint shall be dealt with in accordance with this Part.

Complaints about Chief Judge

28(2)       Despite subsection (1), if the Chief Judge is the subject of a complaint, the complaint shall be made to the Chief Justice of the Queen's Bench.

Form of complaint

28(3)       A complaint shall be in writing and signed by the complainant.

Assistance to public

28(4)       Upon request, the administrator shall arrange for the provision of assistance to any person in the preparation of a complaint.

Notification to judge

28(5)       On receiving a complaint, the Chief Judge shall give a copy of the complaint to the judge who is the subject of the complaint.

Reassignment of judge during investigation

29          The Chief Judge may reassign a judge who is the subject of a complaint to administrative duties or to a different place until the complaint is finally disposed of.

Chief Judge may investigate on own initiative

30          In addition to investigating a complaint received under subsection 28(1), the Chief Judge may, on his or her own initiative, investigate any matter respecting misconduct by a judge that comes to his or her attention, and the matter shall be dealt with in the same manner as a complaint is dealt with under this Part.

Powers of Chief Judge

31(1)       After receiving a complaint the Chief Judge may

(a) resolve the complaint if the Chief Judge obtains the agreement of the complainant and the judge;

(b) if the Chief Judge is of the opinion that there is no basis for the complaint or that 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 board for investigation.

Complaints referred directly to board

31(2)       Despite subsection (1), the Chief Judge shall refer a complaint to the board if

(a) the complaint alleges that a judge has committed an indictable offence; or

(b) in the opinion of the Chief Judge, the alleged misconduct by the judge may amount to conduct prejudicial to the administration of justice that brings the judicial office into disrepute.

Notification of decision

31(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 (1) within 60 days after the date the complaint was received, and the notice to the complainant shall include information about referring the complaint to the board under subsection (4).

Referral to board by complainant

31(4)       A complainant who is dissatisfied with a decision of the Chief Judge under clause (1)(b) or who has not been notified within the time period referred to in subsection (3) may, in writing, refer the complaint to the board within 30 days of receiving a copy of the decision, or of the expiry of the time period, as the case may be.

JUDICIAL INQUIRY BOARD ESTABLISHED

Establishment of board

32(1)       The Judicial Inquiry Board is established to investigate complaints alleging misconduct by judges and to conduct proceedings before the council when charges of misconduct against judges are laid.

Composition

32(2)       The board shall be composed of the following three members:

(a) a lawyer appointed by the Lieutenant Governor in Council on the recommendation of the President of the Manitoba Branch of The Canadian Bar Association;

(b) a person who is not a lawyer, judge or retired judge, appointed by the Lieutenant Governor in Council on the recommendation of the minister;

(c) a judge of the Court of Queen's Bench designated by the Chief Justice of the Queen's Bench.

Ineligible persons

32(3)       No person who is

(a) a member of the council; or

(b) an employee in the civil service as defined in The Civil Service Act;

may be a member of the board.

Term and reappointment

32(4)       A member of the board shall hold office for a three-year term and may be reappointed for one further three-year term.

Member continues

32(5)       If a member of the board designated under clause (2)(c) ceases to be a judge while a complaint is being investigated, the person remains a member of the board until the board completes all matters with respect to the complaint.

Appointment of successor

32(6)       A member of the board continues to hold office after the expiry of his or her term until the member is reappointed or a successor is appointed.

Queen's Bench judge as chairperson

32(7)       The member designated under clause (2)(c) shall be the chairperson of the board.

Quorum

32(8)       Three members of the board constitute a quorum and a majority of the members may make a decision.

Expert assistance

32(9)       The board may engage persons, including counsel, to assist it in its investigation and to represent it before the council, and they are entitled to receive remuneration at a rate approved by the minister.

Powers and protection under Evidence Act

32(10)      The board has all the powers of commissioners appointed under Part V of The Manitoba Evidence Act, and the board and persons engaged by it have all the protection of commissioners appointed under Part V of that Act.

Remuneration and expenses

32(11)      A member of the board, other than a member designated under clause (2)(c), is entitled to receive remuneration, and all members are entitled to reimbursement for expenses, as determined by the Lieutenant Governor in Council.

INVESTIGATION BY JUDICIAL INQUIRY BOARD

Preliminary investigation

33(1)       On referral of a complaint under this Part, the board shall consider the matter and may conduct such investigation as it considers appropriate.

Notification by board

33(2)       On referral of a complaint, the board shall give notice to the judge who is the subject of the complaint and to the Chief Judge.

Investigation private

33(3)       An investigation shall be conducted in private.

Information re complaint

33(4)       At any person's request, the administrator may confirm or deny that a particular complaint has been referred to the board.

Investigation of other matters

34          The board may investigate any other matter relating to misconduct by the judge that arises in the course of an 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.

Decision of board

35(1)       After considering the complaint, the board may

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

(b) decide that no further action is required with respect to the complaint; or

(c) formulate a charge of misconduct against the judge, stating the grounds for the charge.

Charge laid before council

35(2)       If a charge is formulated under clause (1)(c), the board shall lay the charge before the council.

Charge public, subject to exception

35(3)       The administrator shall make a copy of the charge available for public inspection, but if the charge involves an allegation of sexual misconduct or sexual harassment by the judge, the board may direct that the copy of the charge that is made available to the public not disclose the identity of the complainant or any information that could disclose the identity of the complainant.

Notice of decision

35(4)       The board 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 board makes a decision under clause (1)(a) or (b); or

(b) a copy of the charge laid before the council, if the board makes a decision under clause (1)(c).

Board's decision final

35(5)       The decision of the board under subsection (1) is final and no appeal lies from the decision.

Reassignment or suspension of judge

36(1)       On receiving a copy of a charge formulated against a judge, the Chief Judge may

(a) reassign the judge under section 29;

(b) suspend the judge with pay until the council makes a decision with respect to the charge; or

(c) suspend the judge without pay until the council makes a decision with respect to the charge, if in the opinion of the Chief Judge the alleged misconduct may amount to conduct prejudicial to the administration of justice that brings the judicial office into disrepute.

Appeal of suspension without pay

36(2)       A judge who is suspended without pay under clause (1)(c) may appeal the suspension to The Court of Appeal.

Stay pending appeal

36(3)       The suspension remains in effect pending an appeal to The Court of Appeal unless the Court, on application, stays the suspension pending the appeal.

Powers of Court on appeal

36(4)       The Court of Appeal, on hearing the appeal, may

(a) confirm the suspension; or

(b) quash the suspension and order that all or part of any pay not paid to the judge be paid to the judge.

JUDICIAL COUNCIL ESTABLISHED

Establishment of council

37(1)       The Judicial Council is established to adjudicate charges that are laid against judges under subsection 35(2).

Composition

37(2)        The council shall be composed of the following six members:

(a) three persons, each of whom is a judge of the Provincial Court of Alberta, British Columbia or Saskatchewan, or the Territorial Court of Yukon or the Northwest Territories, or another jurisdiction specified by regulation, as designated by the Chief Judge of the person's court;

(b) the President of The Law Society of Manitoba, or another member of the Law Society designated by the President;

(c) two persons who are not lawyers, judges or retired judges, appointed by the Lieutenant Governor in Council on the recommendation of the minister.

Judicial members

37(3)       The request for members to be designated under clause (2)(a) shall be made on a rotating basis to the jurisdictions referred to in that clause.

Ineligible persons

37(4)       No person who is

(a) a member or former member of the board; or

(b) an employee in the civil service as defined in The Civil Service Act;

may be a member of the council.

Substitute judicial members

37(5)       If three persons are not designated under clause (2)(a), the Lieutenant Governor in Council may, on the recommendation of the minister after the minister consults with the Chief Justice of the Queen's Bench or the Chief Judge, appoint

(a) a judge of the Court of Queen's Bench; or

(b) a judge of the Provincial Court, other than the Chief Judge;

to be a substitute member of the council in place of a member referred to in clause (2)(a) and in this case, the substitute member is deemed to be a member appointed under clause (2)(a).

Member continues

37(6)       A member of the council under clause (2)(a) or (b) holds office until the council completes all matters with respect to a particular charge or set of charges against a judge.

Term of office

37(7)       A member of the council appointed under clause (2)(c) shall hold office for a three-year term and may be reappointed for one further three-year term.

Appointment of successor

37(8)       A member of the council appointed under clause (2)(c) continues to hold office after the expiry of his or her term until the member is reappointed or a successor is appointed.

Judicial member to be chairperson

37(9)        The members of the council shall choose a member designated under clause (2)(a) to be the chairperson of the council.

Chairperson may vote

37(10)      The chairperson is entitled to vote, and may cast a second deciding vote if there is a tie.

Quorum

37(11)      Six members of the council constitute a quorum and a decision of the council may be made by a majority of the votes cast.

Participation by telephone

37(12)      If the members of the council agree, a member may participate in a meeting of the council, other than a hearing 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 that meeting.

Engagement of counsel

37(13)      The council may engage counsel to assist it, and the counsel is entitled to receive remuneration at a rate approved by the minister.

Powers and protection under Evidence Act

37(14)      The council has all the powers of commissioners appointed under Part V of The Manitoba Evidence Act, and the council and persons engaged by it have all the protection of commissioners appointed under Part V of that Act.

Remuneration and expenses

37(15)      A member of the council, other than a member appointed under clause (2)(a), is entitled to receive remuneration, and all members are entitled to reimbursement for expenses, as determined by the Lieutenant Governor in Council.

Administrator

38          The minister may appoint an employee of the civil service as administrator for the purpose of performing the duties of the administrator under this Part, including

(a) providing administrative services for the council, the board and the Chief Judge with regard to the complaint process set out in this Part;

(b) providing information to the public about the complaint process;

(c) receiving and giving notices and other documents on behalf of the Chief Judge, the board or the council under this Part;

(d) making the administrative arrangements necessary for convening the council for the purpose of holding a hearing;

(e) assisting in the preparation of the annual reports under section 39.9; and

(f) performing such other duties relating to the complaint process set out in this Part as the council, the board or the Chief Judge may require.

ADJUDICATION BY JUDICIAL COUNCIL

Adjudication by council

39(1)       When a charge against a judge is laid before the council under subsection 35(2), the council shall hold a hearing to adjudicate the charge in accordance with this Part.

Administrator convenes council

39(2)       On receiving a copy of the charge, the administrator shall

(a) ensure that the Chief Judge of each jurisdiction that is to designate a member of the council under clause 37(2)(a) is promptly notified that the council is being convened; and

(b) promptly notify all other members of the council that the council is being convened.

Notice of hearing

39(3)       At least 30 days before the date of the hearing, the council shall give the judge against whom the charge is laid and the chairperson of the board a notice of hearing stating the date, time and place at which the council will hold a hearing, and the notice shall state the particulars of the charge against the judge.

Board has conduct

39(4)       The board has conduct of the proceedings and shall present the case before the council.

Right to counsel

39(5)       The judge against whom the charge is laid is entitled to be present at the hearing before the council and to be represented by counsel.

Evidence

39(6)       At a hearing of the council, the oral evidence of witnesses shall be taken on oath and there shall be a full right to cross-examine witnesses and adduce evidence.

Hearing in absence of judge

39(7)       The council 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 in attendance.

Hearing to be public, subject to exception

39(8)       Except as otherwise provided in subsection (9), a hearing shall be held in public.

Exclusion of public

39(9)       At the request of the judge, the complainant or another witness, the council may, by order, exclude the public from a hearing or part of a hearing or may direct that the complainant or another witness be identified only by initials, if it is satisfied that

(a) matters involving public security may be disclosed;

(b) personal or other matters may be disclosed at the hearing that are of such a nature that the desirability of avoiding public disclosure of those matters in the interest of any person affected or in the public interest, outweighs the desirability of adhering to the principle that hearings be open to the public;

(c) a person involved in a criminal proceeding or in a civil suit or proceeding may be prejudiced; or

(d) the safety of a person may be jeopardized.

Reasons required

39(10)      If the council excludes the public or directs that the complainant or another witness be identified only by initials, it shall provide reasons for doing so.

Order prohibiting publication

39(11)      If the council excludes the public or directs that the complainant or another witness be identified only by initials, it may make any orders it considers necessary to prevent the public disclosure of matters disclosed at the hearing, including banning the publication or broadcasting of those matters.

Dispositions

39.1(1)     After completing the hearing, the council may dismiss the complaint or, if it finds that there has been misconduct by the judge, the council may,

(a) warn the judge;

(b) reprimand the judge;

(c) order that, as a condition of continuing to sit as a judge, the judge apologize to the complainant or to any other person;

(d) order that, as a condition of continuing to sit as a judge, the judge take specified measures, such as receiving education or treatment with or without requiring the judge to take a leave of absence, with or without pay;

(e) suspend the judge with pay for any period;

(f) suspend the judge without pay for a period up to 30 days;

(g) recommend to the minister that the judge be retired from office if the council finds that the misconduct is due to the judge's inability or incapacity to perform his or her duties;

(h) recommend to the minister that the judge be removed from office and, in that case, suspend the judge without pay until the judge is removed from office under section 39.4.

Combination of dispositions

39.1(2)     The council may make any combination of the dispositions set out in clauses (1)(a) to (f).

Effect of retirement recommendation

39.1(3)     Where under clause (1)(g) the council recommends that a judge be retired from office, the judge shall cease to receive pay from the date of the council's decision.

Pay

39.1(4)     The council may order that all or part of any pay not paid to a judge because of a suspension without pay imposed under clause 36(1)(c) be paid to the judge, provided that the council does not make a disposition under clause (1)(f), (g) or (h).

Costs

39.2(1)     The costs of, or incidental to, the investigation of a complaint and the hearing of a charge are in the discretion of the council, and the council may order costs in favour of or against the judge against whom the charge is laid.

Considerations re costs

39.2(2)     In determining whether costs should be awarded and the amount of the costs, the council may consider the following factors:

(a) the conduct of any party which tended to shorten or lengthen the duration of the investigation or hearing;

(b) whether any step in the proceeding was improper, vexatious or unnecessary;

(c) whether a party denied or refused to admit anything which should have been admitted;

(d) any other matter relevant to the question of costs.

Payment of costs

39.2(3)     Costs ordered in favour of a judge under subsection (1) shall be paid by the government.

Filing order to pay costs

39.2(4)     The council may file an order of costs made against a judge under subsection (1) in the Court of Queen's Bench, and when filed, the order may be enforced in the same manner as a judgment of that Court.

Reasons for decision

39.3(1)     The council shall give its decision under section 39.1, or subsection 39.2(1), 39.5(1) or 39.7(4), and the reasons for it, in writing.

Notice of decision

39.3(2)     The council shall give a copy of the decision and reasons to

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

(b) the complainant;

(c) the chairperson of the board;

(d) the Chief Judge; and

(e) the minister;

and shall make a copy of the decision available for public inspection.

Retirement or removal of judge from office

39.4        If the council made a recommendation under clause 39.1(1)(g) or (h) and an appeal under section 39.6 has been dismissed or the time allowed for an appeal has expired, the Lieutenant Governor in Council shall make an order to remove or retire the judge from office, as the case may be, and to revoke the judge's appointment.

Costs against judge who resigns or retires

39.5(1)     If a judge against whom a charge has been laid before the council resigns or retires from office before the council has made a decision about the charge, the council may continue with the hearing despite the resignation or retirement to determine whether the costs of or incidental to the investigation of the complaint and any hearing of the charge should be paid by the judge.

Considerations re costs

39.5(2)     In determining the amount of any costs ordered against a judge under subsection (1), the council may consider the following factors:

(a) the timeliness of the judge's resignation or retirement and the length of notice given;

(b) whether any step in the proceeding taken by the judge since the complaint was made was improper, vexatious or unnecessary;

(c) whether since the complaint was made the judge denied or refused to admit anything which should have been admitted;

(d) any other matter relevant to the question of costs.

Hearing continued if in public interest

39.5(3)     If

(a) a judge against whom a charge has been laid before the council resigns or retires from office before the council has made a decision about the charge; and

(b) the council is of the opinion that it is in the public interest or will aid in the administration of justice to continue the hearing;

the council may continue the hearing and, without making a finding that there was misconduct by the judge, may make recommendations to the minister that could aid in the administration of justice in the province.

APPEAL TO COURT OF APPEAL

Appeal to Court of Appeal

39.6(1)      The judge against whom a decision was made or the board may, on a question of law, appeal a decision of the council under section 39.1, or subsection 39.2(1), 39.5(1) or 39.7(4) to The Court of Appeal.

Stay pending appeal

39.6(2)     The decision of the council remains in effect pending an appeal to The Court of Appeal unless the Court, on application, stays the decision pending the appeal.

Powers of Court on appeal

39.6(3)     The Court of Appeal on hearing the appeal may

(a) make any decision that in its opinion ought to have been made; and

(b) order that all or any part of any pay not paid to a judge because of a suspension or retirement be paid to the judge.

COMPLAINTS RE CHIEF JUDGE

Complaints to Chief Justice

39.7(1)     If a complaint is made

(a) about the Chief Judge; or

(b) about another judge while a complaint about the Chief Judge is outstanding;

the Chief Justice of the Queen's Bench shall deal with the complaint and shall perform the duties and exercise the powers that the Chief Judge would otherwise perform and exercise with respect to a complaint under this Part.

Suspension of Chief Judge during investigation

39.7(2)     If the board lays a charge against the Chief Judge before the council, the Chief Justice of the Queen's Bench may, in addition to exercising the powers under subsection 36(1), suspend the Chief Judge as Chief Judge

(a) with pay; or

(b) without pay, if in the opinion of the Chief Justice, the alleged misconduct may amount to conduct prejudicial to the administration of justice that brings the judicial office into disrepute;

until the council makes a decision with respect to the charge.

Appeal of suspension

39.7(3)     If the Chief Judge is suspended under clause (2)(b), he or she may appeal the suspension to The Court of Appeal and subsections 36(3) and (4) apply, with necessary modifications.

Suspension of Chief Judge after hearing

39.7(4)     In addition to making a disposition under section 39.1 or 39.2 with respect to the Chief Judge as a judge, the council may also

(a) suspend the Chief Judge as Chief Judge with pay for any period, or without pay for a period up to 30 days; and

(b) recommend to the minister that the appointment of the Chief Judge as Chief Judge be revoked and, in that case, suspend the Chief Judge until his or her appointment as Chief Judge is revoked under subsection (5).

Revocation of appointment as Chief Judge

39.7(5)      If the council makes a decision under clause (4)(b) and an appeal from the suspension has been dismissed, or the time allowed for an appeal has expired, the Lieutenant Governor in Council shall revoke the appointment of the Chief Judge as Chief Judge.

INFORMATION TO PUBLIC

Information provided

39.8        The minister shall provide, in courthouses and elsewhere, information about how a complaint about a judge is made and about the process for dealing with a complaint as set out in this Part.

Annual reports by Chief Judge, board and council

39.9(1)     The Chief Judge, the board and the council shall each report annually to the minister on matters under this Part and

(a) the report from the Chief Judge shall include

(i) a summary of the complaints received or dealt with during the year and the decision of the Chief Judge with respect to each complaint,

(ii) a summary of the investigations made under section 30 during the year and the decision of the Chief Judge as a result of each investigation, and

(iii) any other matter respecting the conduct of judges that the Chief Judge considers relevant;

(b) the report from the board shall include a summary of each complaint referred to the board during the year and the decision of the board with respect to the complaint; and

(c) the report from the council shall include a summary of each charge laid by the board during the year and the disposition of the charge by the council and the results of any appeal.

Identifying information not disclosed

39.9(2)     The annual reports referred to in subsection (1) shall not include information that might

(a) identify the judge or the complainant if no charge of misconduct has been laid before the council; or

(b) identify the complainant if a direction was made by the board under subsection 35(3) or an order was made by the council under subsection 39(9) or (11).

Annual reports to minister

39.9(3)     The Chief Judge, the board and the council shall provide the minister with the reports referred to in subsection (1) within three months after the end of the year.

Annual reports tabled

39.9(4)     The minister shall lay the reports of the Chief Judge, the board and the council before the Legislative Assembly if it is in session within 15 days after receiving them, and if it is not in session, within 15 days after the beginning of the next session.

NOTICE

Giving notice

39.10(1)    A notice or other document to be given under this Part, shall be in writing and may be given by

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

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

Effective notice under clause (1)(b)

39.10(2)    Notice given by mail under clause (1)(b) is effective

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

(b) on the date on which the person to be given the notice or document, receives it.

7           Subsection 55(1) is amended by adding the following after clause (d):

(d.1) specifying jurisdictions for the purpose of clause 37(2)(a);

Transitional

8           A complaint that was made but not concluded before the coming into force of this Act shall be concluded as though this Act had not come into force.

Coming into force

9           This Act comes into force on a day fixed by proclamation.