Thursday, 21 November 2013

The Lori Douglas Inquiry

The Lori Douglas affair took a spectacular new turn yesterday, when the entire Inquiry Committee resigned. The Committee, established under the Judges Act, was inquiring into allegations against a Manitoba judge.

The Committee published reasons for its decision. Notably, the Committee felt its function was being frustrated by the resort of various parties to the Federal Court. Allegations of bias have been levelled against the Committee and have led to various applications and motions (see e.g. here).

An eyebrow might be raised at this point. Shouldn't the Committee be allowed to get on with its work and make a decision, after which the bias issue could be addressed? The Supreme Court of Canada recently made it very clear that reviewing courts should not get involved too early in the decision-making process: Halifax (Regional Municipality) v. Nova Scotia (Human Rights Commission), 2012 SCC 10, [2012] 1 SCR 364. The facts of that case related to jurisdictional issues rather than allegations of bias but there was an argument to be made here that the Federal Court should not intervene so early on.

But this prematurity argument was (it appears) never made before the Federal Court. Nobody spoke up for the Inquiry Committee.

Why? There is a general rule in Canadian administrative law that administrative tribunals cannot defend the merits of their decisions. The relevant principles are described by Stratas J.A. in Canada (Attorney General) v. Quadrini, 2010 FCA 246.

Had the Committee been heard, it would doubtless have strongly argued for a mandate to continue its operations.

In the event, however, the judicial review applications and associated motions continued and looked set to continue for some time. In the circumstances, the Committee chose to resign. In my view, this decision was not unreasonable, though my perspective is coloured by watching Ireland's public inquiries drag on for years due to court challenges and onerous procedural obligations.

At this point, it would be better just to start over. Perhaps Parliament, in between, could think of amending the Judges Act to ensure that someone is there to speak up for a future Inquiry Committee whose conduct is called into question. Otherwise, a cynical litigant (someone other than Justice Douglas) will be able to raise a claim of bias in order to drag the proceedings out for years.

UPDATE: Great post here with more details by Alice Woolley. 

1 comment:

  1. In my view, as someone who has twice filed a compalint with the CJC, there is no question that Parliament needs to act, promptly and decisively. The Judges Act was amended to create the CJC in 1971. Not coincidently that's the same year the Federal Court was created. I recommend having a look at what Dick Pound had to say about all that in his book about W.R. Jackett. You can access most of the relevant chapter on Google books.

    My guess is Jackett himself would now condemn the CJC and concede that it was a mistake. The solution that seems obvious to me is to create an independent office of Parliament to administer the complaints process. There may be other viable solutions, but obviously judges judging judges doesn't work.