Canada: Ontario Judge Facing Discipline, Possible Removal From Office, For Comments Made Regarding A First Nations Land Claim

Last Updated: March 6 2017
Article by Jeffrey Spiegel (Student-at-Law)

Justice Frank Newbould of the Ontario Superior Court of Justice grew up along the shores of Sauble Beach—his family has owned a cottage there for nearly 100 years—and he was rightfully concerned about a First Nations land claim that was being made to the beachfront near his property.

Now, Newbould, who was once named one of Canada's 25 most influential members of the legal profession in 2016 by Canadian Lawyer magazine, faces the possibility of judicial discipline and removal from the bench as a result of letters he drafted and a presentation he made at a community meeting regarding the land claim.

In August 2014, the Canadian Judicial Council (CJC) began receiving complaints about the judge's involvement in a public consultation on the proposed settlement of a Saugeen First Nation land claim in Sauble Beach.  The complaints alleged that it was improper for Newbould to take a position on an issue that he knew could wind up before the Superior Court.

The land claim that Newbould spoke about would have extended the territory of the Saugeen First Nation to within about 400 metres of Newbould's cottage.

Frank Newbould, in his capacity as a "cottage owner", drafted two detailed letters and made a presentation at a public meeting, advocating why the Town of South Bruce Peninsula, which includes Sauble Beach, should fight the land claim.  In one of the letters, Newbould writes, "In my view, there are strong defences to the claim of the Saugeen First Nation." He goes on to say, "It is difficult to understand how the town could agree to the proposed settlement with all its weaknesses," and that "if a satisfactory settlement cannot be made...the town should not shy away from defending the claim along with the Province of Ontario."

In Newbould's opinion, the First Nation's case for expanding its reserve was based on a flawed interpretation of historical land surveys.

Newbould also warned that agreeing to the claim could change the character of the beach—Saugeen First Nation would likely attempt to generate revenue by allowing cars on the beach, charging user fees, and selling cigarettes.  Newbould pointed to a portion of the beach that is already under the band's control where this has happened.

In January 2015, the CJC dismissed the complaints against Justice Newbould—finding it was not in the public interest to investigate the complaint.

The CJC is mandated to review any complaint or allegation against a federally-appointed judge. The Council is chaired by the Chief Justice of the Supreme Court of Canada, Beverley McLachlin, and its other 38 council members are senior judges from across Canada.

But even with the dismissal, the matter has not gone away.  The CJC recently announced that it will hold a public inquiry into Newbould's conduct in relation to the land claim.  In a statement made by the council, the review panel acknowledged that the allegations that Newbould intervened in the context of a court case "could be so serious that they may warrant the judge's removal from office."

Newbould's lawyer, Brian Gover, says the case was reopened after the Indigenous Bar Association's president asked the CJC to reconsider its decision.  Gover also says that, in its request, the IBA's president threatened possible "political action".

Gover maintains that the CJC has no jurisdiction to reconsider a closed complaint, but the CJC, on the other hand, says that it does have the power to reconsider, and that the case was reopened after new information was received.

Justice Newbould is now asking the Federal Court of Canada to stop the CJC from taking further steps regarding the complaints about his participation in the land dispute—on the basis of that the judicial council review panel lacks the authority to order an inquiry after the matter was closed two years earlier.

Regardless of whether Justice Newbould is successful in his application to the Court, the disciplinary proceedings may be a non-issue.  Newbould, who is now 73, has already informed the Minister of Justice that he plans to retire on June 1, 2017 "for unrelated personal reasons."  Upon retirement, any outstanding complaints would be dismissed.  If Newbould does retire in June, he would be stepping down at least a year before the mandatory retirement age of 75.

In the meantime, Justice Newbould continues in his role as the lead judge of the Ontario Superior Court of Justice Commercial List, which hears complex commercial litigation cases relating to corporations and bankruptcy.

Justice Newbould's case does raise concerns over the disciplinary process that federally-appointed judges face.

This past summer, the federal government took steps to change how judges are disciplined in Canada.  In doing so, Justice Canada has asked for the public's input in how judges should be punished, whether taxpayers should fund judges' appeals, and how to accelerate the disciplinary process.

Under the current disciplinary process, complaints are made to the CJC. The CJC then investigates, holds hearings, and makes recommendations to the minister of justice about whether remedial measures should be taken against a judge, or whether a judge should be removed from the bench.

Under the current system more than 99-percent of complaints against federal judges are dealt with in secret.  Based on a study concluded in 2014, since the early 1990s, about 180 of the average 600 complaints the council receives annually are deemed worthy of a review screening process. Of the roughly 3,600 complaints the council has investigated in the past 20 years, only 11 have resulted in a public inquiry.

Unless a complaint results in an inquiry, the council does not disclose the judge's name, province, details of the allegations and results of the investigation.  The only public insight provided is an anonymous summary of the complaints—published in the council's annual report.

The Canadian Association for Legal Ethics (CALE) has responded to Justice Canada's request for input, recommending that there be public involvement in the CJC discipline process, a wider range of sanctions available to the CJC to implement, and a requirement that judges pay their own appeal costs from CJC decisions.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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