Judicial Council has, as its mandate, responsibility to ensure a high quality of judicial service in the Territorial Court. Council carries out this mandate through the performance of its functions set out in the Territorial Court Act.
One of the major functions of Judicial Council is receiving and assessing applications for the position of judge of the Territorial Court of Yukon and deputy judge of the Territorial Court of Yukon.
Judicial Council is also responsible for recommending the appointment of justices of the peace. Justices of the peace have evolved as an indispensable and essential part of Yukon’s judicial system. Access to justice requires trained active justices in each community.
Another important function of Council is receiving and reviewing complaints about the conduct or neglect of duty or the incapacity of a judge or justice.
The Judicial Council of the Territorial Court is a body created by statute, originally in the Territorial Court Act of 1985 and continued under the present Territorial Court Act R.S.Y. 2002, c. 217. Section 31 of the Act sets out the functions of the Council:
31. The functions of the council are:
(a) to make recommendations to the Minister respecting appointments of judges and justices;
(b) subject to Part 5, to deal with complaints respecting judges and justices;
(c) to make recommendations to the Minister and the chief judge on any matters that it considers necessary respecting the efficiency, uniformity or quality of judicial services;
(d) to report to the Minister and the chief judge respecting proposals for improving the judicial services of the court or on any other matters that may be referred to it by the Minister;
(e) after consulting with the chief judge and the Minister, to consider and recommend any judicial training that in its opinion may reasonably be necessary;
(f) to serve in an educational capacity, in any manner as it sees fit;
(g) for the better consideration of justice issues of concern to the community, to establish working committees to consider reform and improvements in the areas of family and young offenders matters and criminal, and civil laws, and to make recommendations on these areas to the council. The membership of these committees shall be in the discretion of the council, but the council shall attempt to include representatives of all interested groups on these committees;
(h) at the request of the supervising judge, to consider whether a change of residence or occupation of a justice merits the dismissal of the justice;
(i) at the request of the supervising judge, to assess whether or not justices have satisfactorily completed training opportunities offered by the court or whether or not justices have engaged in behaviour inconsistent with the due administration of justice and, if it considers advisable, to refer its concerns about a justice to a tribunal; and
(j) to perform such other duties that it may be requested to perform by the Minister or the chief judge (S.Y. 1998, c. 26, s. 30).
Judicial Council consists of eight people and has representatives from the general public, the legal profession, Yukon First Nations, the judiciary and the justices of the peace. The statutory provision for the composition of the Judicial Council is contained in section 32(1) of the Act. It provides that the Commissioner in Executive Council shall appoint the Council from:
(a) two members nominated by the Minister, one of whom shall be a member of the Law Society of Yukon and the other shall be a lay person,
(b) two members nominated by Yukon First Nations, at least one of whom shall be a lay person,
(c) one member nominated by the Law Society of Yukon,
(d) one member nominated by the chief judge,
(e) one member nominated by justices, and
(f) a resident judge of the Supreme Court nominated by the Senior Judge who may, ex officio, participate in the affairs of the council, on matters other than complaints and discipline.
(2) The council may recommend the appointment of one further lay member who shall, in so far as it is reasonably possible after considering the existing membership, ensure that the council reflects the demographics and diversity of Yukon.
The Council selects a chair from its members and where the chair is for any reason unable to act, the other members of the Council choose a member to act in his or her absence. The Council makes its decisions by majority vote and where in a proceeding before Council there is no majority decision, the chair casts a second and deciding vote.
The Council meets regularly to carry out its duties and responsibilities under the Act.
Appointment Process for Judges and Justices of the Peace
One of the major functions of the Judicial Council is assessing applications for the position of territorial court judge, deputy territorial court judge and justice of the peace.
Judges and justices of the peace are appointed by the Commissioner in Executive Council on the recommendation of the minister of justice.
When a judge is to be appointed, the Council is required to submit a list of not less than three and not more than eight qualified candidates to the minister of justice. The minister recommends appointment of a candidate from this list.
When a judge is to be appointed, the Council must advertise the position in Yukon newspapers and, as it considers advisable, in other regional and national newspapers. The Council must also give notice of the position to the Yukon Law Society and, as it considers advisable, to other potential candidates.
Applicants first complete an application form and return it to the Judicial Council. All applications are reviewed by the Judicial Council. The Judicial Council considers references from a number of sources, including a report from the relevant Law Society on the applicant’s standing, interviews members of the legal community regarding the reputation and suitability of the applicant and from judges who are familiar with the applicant. After reviewing this material, Judicial Council decides whether a candidate will be interviewed by Council. After interviewing the applicant, the Judicial Council determines the acceptability of the candidate. Following this process, Council submits a list of qualified candidates to the minister of justice.
Candidates are informed that they will not hear about the outcome of their application unless they receive an offer of a position by the Commissioner in Executive Council.
Judicial Council assesses each applicant against the qualifications set out in section 7 of the Act. The applicant must meet the following qualifications:
- normally 10 years in the practice of law. Those with less legal practice are considered if they have a range of related experience;
- is a member or is qualified to be a member of the Law Society of Yukon;
- is under 65 years of age;
- the need to have a bench which is demographically representative of the community it serves;
- the scholarship and other attainments of the applicant;
- the experience and maturity of the applicant;
- the familiarity and the involvement of the applicant in northern communities;
- the familiarity and understanding of the applicant with first nations concerns;
- the applicant’s record in the community;
- additional criteria based on the needs of the court or determined by the minister to be in the public interest.
Each of the Territorial Court Judges preside in family, criminal and small claims court. The judges travel to rural communities on a regular court circuit as assigned by the chief judge.
Justice of the Peace Appointments
Judicial Council is also responsible for recommending the appointment of justices of the peace. Over the past twenty years, Yukon Justices of the Peace have evolved as an indispensable and essential part of Yukon’s judicial system. Owing to the widely dispersed Yukon population, a properly functioning and vigorous justice of the peace program is essential for the proper administration of justice in the Territory.
The Territorial Court is committed to providing more accessible community based justice. A strong justice of the peace program, which is able to ensure there are trained active justices in each community, is essential if there is to be access to justice at any time other than during the infrequent visits on court circuit.
The recruitment process for a justice of the peace is a community-based process. The circuit court judge, local justices and the senior justice may identify possible candidates who are encouraged to apply to Council. As well, Council brings the availability of a position to the local community through advertisements in the local newspaper or through local organizations.
The process for appointing a justice of the peace is very similar to the process used to appoint judges. Applicants first complete an application form and return it to the Judicial Council. Many of the qualifications considered in assessing applicants for the position of territorial court judge are also considered when assessing candidates applying to become justices of the peace. More specifically, candidates are assessed by the Judicial Council on the basis of the application form, training and previous work experience, health, reputation in the community, and absence of any conflicts of interest, as well as their commitment to ongoing training and education. Appointments are made as the need for a justice of the peace in a particular community arises.
With the amendments to the Territorial Court Act, justices of the peace are divided into two categories: administrative and presiding. Justices exercising administrative functions may receive informations, issue process, conduct small claims mediations and pre-trial conferences and perform other similar duties as determined by the supervising judge. A justice exercising presiding functions has jurisdiction to exercise all the powers conferred on a justice of the peace, or, on two justices, or, by a judge of the court, by or under an enactment of Yukon or Canada, subject to the limitations in child protection matters and imposing custodial sentences set out in section 55 of the Act.
The duties and responsibilities of each presiding justice are set out in a letter of authorization issued by the chief judge. The letter of authorization system allows the chief judge to take account of the individual’s training and abilities, as well as the specific needs of a community when assigning responsibilities and duties to a justice. It also permits both the justice of the peace and the chief judge to identify the training needs of individual justices.
The principle of judicial independence requires that judges and justices of the peace must be free to make their decisions based only upon the facts in a particular case and the law applicable to those facts, without outside interference. If a judge or justice of the peace errs in the application of the law or the finding of the facts in a particular matter, the result may be appealed or subject to judicial review by a higher court. The principle of judicial independence, however, does not eliminate judicial accountability. Section 38(1) of the Territorial Court Act does provide that judges are accountable for conduct that is outside the parameters of proper judicial conduct. Any individual who believes a judge has behaved improperly, neglected his or her duty or is impaired or diminished in his or her ability to perform his or her responsibilities, may lodge a written complaint.
The Territorial Court Act provides for a complaint process in sections 38, 39, 40 and 41:
38.(1) A person wishing to make a complaint about
(a) the conduct of a judge or of a justice;
(b) the neglect of duty by a judge or a justice; or
(c) any matter which may lead a person to conclude that the ability or capacity of a judge or justice to perform their responsibilities has become substantially impaired or diminished or that they are otherwise unfit for office;
may file a complaint in writing with the registry of the court.
(2) A person who files a complaint may withdraw that complaint at any time with the consent ofthe council (S.Y. 1998, c. 26, s. 37).
39. The registry shall provide a copy of the complaint immediately to the council, the chief judge, and to the judge or justice who is the subject of the complaint (S.Y. 1998, c. 26, s. 38).
40. Within 30 days of receipt of the complaint, the chair of the council shall call a meeting to consider the complaint (S.Y. 1998, c. 26, s. 39).
41.(1) On considering the complaint, the council may
(a) dismiss the complaint if the council finds it unnecessary, scandalous, frivolous, vexatious, unfounded, brought in bad faith, or beyond its jurisdiction;
(b) refer the complaint to the chief judge to be disposed of by the chief judge in accordance with section 42;
(c) if the council considers that the complaint is one which should be heard but which it may be able to resolve without referring it to a judicial conduct tribunal, the council may, with the consent of the judge or justice who is the subject of the complaint,
(i) give the complainant and the respondent the opportunity to speak to the complaint in the presence of each other, and
(ii) dispose of the complaint by way of reprimand or dismiss the complaint; or
(d) order an inquiry by a tribunal.
(2) A judge or justice against whom a complaint has been made shall not participate as a member of council for the purposes of its reviewing a complaint against them.
(3) The council may investigate a complaint as it considers advisable to determine the disposition of a complaint under subsection (1).
(4) Where the council refers a complaint to a judicial conduct tribunal in accordance with paragraph 1(d), it may recommend the suspension of the judge or justice who is the subject of the complaint with or without pay to the tribunal that is to hear the complaint. The tribunal shall determine immediately whether or not the suspension is warranted and, if it considers the suspension is warranted, it shall suspend the judge or justice until the complaint is disposed subject to any terms and conditions it considers advisable (S.Y. 1998, c. 26, s. 40).
42. The chief judge shall rule on every complaint referred to the chief judge under paragraph 41(1)(b) within 30 days of receiving the complaint and shall promptly report the disposition of the complaint to the complainant, the judicial council, and to the judge or justice who was the subject of the complaint (S. Y. 1998, c. 26, s. 41).
43. A complainant who believes that the chief judge has erred in the disposition of the complainant's complaint may, within 30 days of the receipt of the chief judge's ruling, ask the council to review the complaint and the council shall deal with the matter in accordance with either paragraph 41(1)(c) or 41(1)(d).
44. A judicial conduct tribunal constituted to hear a matter referred to it by the council under section 41 of this Act shall be a deputy judge of the Supreme Court appointed by the Senior Judge of the Supreme Court (S.Y. 1998, c. 26, s. 43).
As a protection for both the complainant and the judge or justice, the Council will not make the details of a complaint public.
Another important function of the Council is to ensure that both judges and justices of the peace have opportunities for ongoing education.
As the role for the justices of the peace has evolved, individuals require a higher level of training as a precondition of appointment and to maintain authorization. Over the past three years, the Council has supported the supervising judge in his efforts to develop a formal training process for justices of the peace.
Yukon Judicial Council Annual Reports
YUKON JUDICIAL COUNCIL MEMBERS
as of May 2014
Territorial Court nomination
Mr. Justice Gower
Supreme Court nomination
Yukon First Nations nomination
Yukon First Nations’ nomination
Law Society’s nomination
Note: A 9th member may be appointed pursuant to the Territorial Court Act s. 32(2)
Contact the Yukon Judicial Council:
Yukon Judicial Council
P.O. Box 31222