Judgments

[2000] 3 F.C. 298

A-20-98

Michael Taylor (Appellant)

v.

Attorney General of Canada (Respondent)

and

The Canadian Jewish Congress (Intervener)

Indexed as: Taylor v. Canada (Attorney General) (C.A.)

Court of Appeal, Robertson, Sexton and Evans JJ.A. —Toronto, January 27; Ottawa, March 6, 2000.

Judges and Courts — Judicial immunity from suit — Appeal from dismissal of application for judicial review of CHRC’s decision not having jurisdiction to deal with complaint about Ontario Court, General Division Judge’s ruling regarding wearing of religious head coverings by spectators at criminal trial — CHRC holding Judge protected by absolute immunity of judges — Appeal dismissed — If judges could be sued for decisions, would be no certain end to disputes, cases would take longer to be heard, resolved, judicial independence would be severely compromised — Need to protect public, not judges, basis for judicial immunity — Judicial immunity not applicable where judge knowingly acting beyond jurisdiction — Impugned order not within exception because Judge not only had jurisdiction under Criminal Code, s. 486 to make order, even if erred in exercise of discretion, thought had jurisdiction — Because order within inherent jurisdiction of court, not administrative act not protected by judicial immunity — Exception to judicial immunity not opening floodgates to vexatious claims as system (motion to strike, summary judgment award of costs) guarding against vexatious claims.

Constitutional law — Fundamental principles — Judicial immunity not inconsistent with Charter equality rights as itself fundamental constitutional principle — In light of constitutional importance of judicial immunity, “bad faith” exception to judicial immunity narrow — Not engaged merely where error in exercise of judicial discretion, as herein — Recognition of exception to judicial immunity not opening floodgates to vexatious claims — Legal system providing sufficient protection against totally unmeritorious claims.

Human rights — Appeal from dismissal of application for judicial review of CHRC’s decision not having jurisdiction to deal with complaint concerning Ontario Court, General Division Judge’s ruling regarding wearing of religious head coverings in Court — O.C.A. holding Judge may have created impression of insensitivity to minority rights, erred in suggesting only certain religious groups protected by Charter — CHRC holding Judge protected by absolute immunity of judges — Neither CHRC nor CHRT providing sufficient safeguards to protect integrity of principle of judicial independence — To afford Commission power to investigate whether Judge acting in judicial capacity would completely destroy judicial immunity, independence — Remedies under CHRA, s. 53(2) if complaint substantiated harmful to unwritten principle of judicial independence — CHRA, s. 41(1)(c), requiring Commission to deal with complaints except those beyond its jurisdiction, preventing Commission from dealing with complaint.

This was an appeal from the Trial Division’s dismissal of an application for judicial review of the Canadian Human Rights Commission’s decision that it did not have jurisdiction to deal with the applicant’s complaint. During the course of a criminal trial, Whealy J. of the Ontario Court, General Division ordered that spectators wearing hats either remove them or leave. The applicant refused to remove his headdress which he wore as part of his religious practice as a Muslim. On a motion by counsel for the accused to permit anyone wearing a head covering for religious reasons to do so during the trial, Whealy J. ordered that the wearing of a headdress would be permitted in court only if it was an article of faith demanded by a well-established and recognizable religious community. Whealy J. also dismissed a second application, supported by the applicant’s sworn affidavit explaining the religious purpose of his head covering, to permit the applicant to attend the trial. The applicant complained to both the Canadian Judicial Council and to the Canadian Human Rights Commission. The Council refused to take any action, giving as a reason that Whealy J.’s authority to make the rulings involved legal rights that could not be decided by the Council. The Ontario Court of Appeal allowed the accused’s appeal on other grounds, but held that Whealy J. erred in suggesting that only certain religious communities were within the purview of the Charter and in excluding certain members of the public from the courtroom, and that in so doing, he may have inadvertently created the impression of an insensitivity as to the rights of minority groups. Following upon the adverse comments of the Court of Appeal, the Council reconsidered the complaint, ultimately expressing disapproval of Whealy J.’s remarks, but not considering the conduct to be sufficiently serious to warrant any further action. The Canadian Human Rights Commission decided not to deal with the complaint based on the common law principle of absolute immunity of judges. The Federal Court, Trial Division held that Whealy J.’s ruling was made in his capacity as a judge and he was therefore protected by reason of judicial immunity from suit.

The issue was whether the complaint was within the Commission’s jurisdiction or was it barred by common law judicial immunity.

Held, the appeal should be dismissed.

Should this Court conclude that the Commission does not have jurisdiction to review Whealy J.’s conduct, the applicant was not left without a remedy. It appears that he could have appealed the order directly to the Supreme Court of Canada by applying for leave to appeal pursuant to Supreme Court Act, section 40. He has already lodged a complaint with the Canadian Judicial Council.

If judges could be sued for their decisions, there would be no certain end to disputes, cases would take longer to be heard and resolved thus wasting already scarce judicial resources, and judicial independence would be severely compromised. Accordingly, the basis for judicial immunity is rooted in the need to protect the public, not in a need to protect judges.

It has been suggested that there are limits to judicial immunity. In Sirros v. Moore, Lord Denning held that nothing will make a judge liable unless it be shown that he knowingly acted beyond his jurisdiction. While it cannot be said that the Supreme Court of Canada has definitively decided the point, this Court was inclined to accept Lord Denning’s exception as good law in Canada. The order did not fall within the “bad faith” exception to judicial immunity because Whealy J. had jurisdiction to make the order under Criminal Code, subsection 486(1), which permits a judge to exclude members of the public from the court room where it is in the interest of the maintenance of order, even if it was later determined that he had erred in the exercise of his discretion. Whealy J. made the order because he thought it was necessary to maintain order in the courtroom. Accordingly, Whealy J. had jurisdiction by reason of Criminal Code, subsection 486(1) and he clearly thought that he had jurisdiction. Thus it was not strictly necessary to decide whether any “bad faith” exception applied to the principle of judicial immunity.

The intervener, Canadian Jewish Congress, submitted that the Court should adopt a distinction between administrative acts, where no judicial immunity applies and judicial acts, where judicial immunity does apply. Whealy J.’s order was not an administrative act. It was judicial and was made with jurisdiction, albeit jurisdiction which the Ontario Court of Appeal concluded had been wrongly exercised. Something that is within the inherent jurisdiction of a Court cannot be an administrative act.

In support of its argument that judicial immunity should be modified to better accord with the Charter and human rights legislation, the intervener relied upon a statement in the Supreme Court of Canada decision in Nelles v. Ontario that to accord absolute immunity to prosecutors would strike at the very principle of equality of the law. Nelles did not deal with judicial immunity. And judicial immunity is not inconsistent with the Charter as judicial immunity itself is a fundamental constitutional principle. Finally, the exception to absolute immunity established in Sirros v. Moore is extremely narrow. Rarely will a plaintiff be able to show that a judge acted with the knowledge that he or she had no jurisdiction. In light of the constitutional importance of judicial immunity, the “bad faith” exception to judicial immunity cannot be engaged merely where a judge errs in the exercise of discretion, as was the case herein. Nor does the recognition of an exception to judicial immunity open the floodgates to vexatious claims. Our legal system provides a sufficient level of protection: frivolous claims can be struck before trial, a defendant can move for summary judgment before trial, and costs can be awarded to discourage totally unmeritorious claims.

As to the proposition that judges may be subject to the provisions of the Canadian Human Rights Act, neither the Canadian Human Rights Commission nor the Canadian Human Rights Tribunal possesses sufficient safeguards to protect the integrity of the principle of judicial independence. To afford the Commission the power to investigate whether Whealy J. had acted in a judicial capacity would completely destroy judicial immunity and judicial independence. Once the Commission was seized of an investigation, it could request the Canadian Human Rights Tribunal to inquire into Mr. Taylor’s complaint so long as the Commission was satisfied, having regard to all the circumstances of the complaint, that an inquiry was warranted. If the Tribunal heard the complaint the consequences for judicial independence would be no less dire. Subsection 53(2) of the Canadian Human Rights Act establishes several broad remedies made available to the Tribunal if it concludes that a complaint is substantiated. These remedies would be equally harmful to the unwritten constitutional principle of judicial independence, and further serve to highlight the necessity that the principle of judicial immunity applies so as to prevent proceedings against judges before the Commission.

Canadian Human Rights Act, paragraph 41(1)(c) prevents the Commission from dealing with Mr. Taylor’s complaint as beyond its jurisdiction.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44].

Canadian Human Rights Act, R.S.C., 1985, c. H-6, ss. 5, 41(1)(c), 43(2.2) (as enacted by R.S.C., 1985 (1st Supp.), c. 31, s. 63), 49(1) (as am. by S.C. 1998, c. 9, s. 27), 53(2)(a) (as am. idem), (b) (as am. idem), (c) (as am. idem), (e) (as am. idem).

Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item 1) [R.S.C., 1985, Appendix II, No. 5].

Criminal Code, R.S.C., 1985, c. C-46, s. 486(1) (as am. by R.S.C., 1985 (1st Supp.), c. 27, s. 203).

Supreme Court Act, R.S.C., 1985, c. S-26, s. 40 (as am. by S.C. 1990, c. 8, s. 37).

CASES JUDICIALLY CONSIDERED

APPLIED:

Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835; (1994), 120 D.L.R. (4th) 12; 94 C.C.C. (3d) 289; 34 C.R. (4th) 269; 25 C.R.R. (2d) 1; 175 N.R. 1; 76 O.A.C. 81; Sirros v. Moore, [1974] 3 All ER 776 (C.A.); Scott v. Stansfield (1868), L.R. 3 Ex. 220; MacKeigan v. Hickman, [1989] 2 S.C.R. 796; (1989), 94 N.S.R. (2d) 1; 61 D.L.R. (4th) 688; 41 Admin. L.R. 236; 50 C.C.C. (3d) 449; 72 C.R. (3d) 129; 100 N.R. 81; Reference re Remuneration of Judges of the Provincial Court (P.E.I.), [1997] 3 S.C.R. 3; (1997), 204 A.R. 1; 156 Nfld. & P.E.I.R. 1; 150 D.L.R. (4th) 577; [1997] 10 W.W.R. 417; 121 Man. R. (2d) 1; 49 Admin. L.R. (2d) 1; 118 C.C.C. (3d) 193; 11 C.P.C. (4th) 1; 217 N.R. 1.

DISTINGUISHED:

Nelles v. Ontario, [1989] 2 S.C.R. 170; (1989), 60 D.L.R. (4th) 609; 41 Admin. L.R. 1; 37 C.P.C. (2d) 1; 71 C.R. (3d) 358; 42 C.R.R. 1; 98 N.R. 321; 35 O.A.C. 161.

CONSIDERED:

R. v. Laws (1998), 41 O.R. (3d) 499; 165 D.L.R. (4th) 301; 18 C.R. (5th) 257 (C.A.); Bradley v. Fisher (1872), 13 Wall. 335 (U.S.S.C.); McC v. Mullan, [1984] 3 All ER 908 (H.L.); Morier et al. v. Rivard, [1985] 2 S.C.R. 716; (1985), 23 D.L.R. (4th) 1; 17 Admin. L.R. 230; 64 N.R. 46; revg [1983] C.A. 334 (Que. C.A.); Royer v. Mignault, [1988] R.J.Q. 670; (1988), 50 D.L.R. (4th) 345; 32 C.R.R. 1; 13 Q.A.C. 39 (C.A.); leave to appeal to S.C.C. denied [1988] 1 S.C.R. xiii; 50 D.L.R. (4th) viii; Proulx c. Québec (Procureur général), [1997] R.J.Q. 419; (1997), 145 D.L.R. (4th) 394 (C.A.).

REFERRED TO:

Garnett v. Ferrant (1827), 6 B. & C. 611; 108 E.R. 576 (K.B.); McCann v. The Queen, [1975] F.C. 272 (C.A.); Forrester v. White, 484 U.S. 219 (1988).

AUTHORS CITED

Brun, Henri et Guy Tremblay. Droit constitutionnel, Cowansville (Qué.): Éditions Yvon Blais, 1982.

Friedland, Martin L. A Place Apart: Judicial Independence and Accountability in Canada. Ottawa: Canadian Judicial Council, 1995.

Halsbury’s Laws of England, vol. 1, 4th ed. London: Butterworths, 1973.

APPEAL from the Trial Division’s dismissal of an application for judicial review of the Canadian Human Rights Commission’s decision that it did not have jurisdiction to deal with a complaint regarding a ruling by a Justice of the Ontario Court, General Division concerning the wearing of religious head coverings by spectators at a criminal trial (Taylor v. Canada (Attorney General) (1997), 155 D.L.R. (4th) 740 (F.C.T.D.)). Appeal dismissed.

COUNSEL:

Peter M. Rosenthal and J. R. Richards for appellant.

Richard A. Kramer and Michael H. Morris for respondent.

Ed Morgan for intervener.

SOLICITORS OF RECORD:

African Canadian Legal Clinic, Toronto, for appellant.

Deputy Attorney General of Canada for respondent.

Ed Morgan, Toronto, for intervener.

The following are the reasons for judgment rendered in English by

Sexton J.A.:

INTRODUCTION

[1]        Judges are human. Judges make mistakes. While a person generally has a right to appeal a decision that the person considers to be wrong, a corresponding right to sue the judge or to complain to the Canadian Human Rights Commission of the judge’s conduct raises many difficult issues.

[2]        In our adversarial system, persons frequently feel aggrieved by a judge’s decision. If a judge knows that a mistaken decision can lead to personal liability, this could influence his or her decision. A judge may be reluctant to find against the more powerful side.

[3]        The matter becomes more complicated when one considers what might constitute an actionable mistake, providing a right to make a claim against a judge. Has a judge made such a mistake if he or she is reversed on appeal? What if the trial judgment is restored on a further appeal? Have the appeal judges committed an actionable mistake? What if both a trial judge and a Court of Appeal are reversed by the Supreme Court of Canada? Is there liability on the part of the trial and Appeal Court judges?

[4]        Among the most important attributes that judges owe to the public are objectivity, independence and impartiality. These attributes must be protected and any innovative legal principle which permits a litigant to invoke an administrative proceeding that encroaches on these attributes must be carefully scrutinized.

BACKGROUND FACTS

[5]        On November 15, 1993, Whealy J. of the Ontario Court, General Division was scheduled to preside over the criminal trial of Dudley Laws. When the courtroom session began, Whealy J. noted that he saw some people wearing hats in the courtroom. He ordered that either the hats be removed or that the people wearing them leave.

[6]        On November 22, 1993, the appellant, Mr. Taylor, attended Mr. Laws’ trial. After he had been sitting in court for about five minutes, he was approached by a court officer and was told that Whealy J. did not permit persons to wear “hats” in his court. Mr. Taylor told the officer that he was a Muslim and that the headdress was part of his religious practice. The officer told him that there were no exceptions, and that he had to either remove his headdress or leave the court. Mr. Taylor left.

[7]        That same day, Whealy J. ruled on a motion brought by Mr. Laws’ counsel, who sought an order directing that any person who wore a hat or other head covering for religious reasons could wear such a hat or head covering during Mr. Laws’ trial.

[8]        In his ruling, Whealy J. held that “it cannot be doubted that a presiding judge not only has the authority but also the duty to oversee the demeanour, solemnity and dignity which must prevail in a superior court of law.”[1] He outlined suitable dress code criteria, one of which was that “male heads must be bare and that if females wear head cover, it must not interfere with other members of the public or be flamboyant.”[2] He then addressed the circumstances under which members of the public could wear religious head coverings in his courtroom:

Some head coverings, by their shape, colour and design, are obvious and easily recognizable as signalling to the eye an adherent of a well established and recognizable race, culture, national or religious community; one of those communities who is clearly within the purview of the Charter. I am unable to think of any such community who has adopted a headdress which lacks the dignity and uniformity that I have been speaking of. Even among those communities, headdress in court will only be permitted if it is an article of faith demanded by that well established and recognizable religious community.

[9]        On November 25, 1993, Mr. Taylor again attempted to enter Whealy J.’s courtroom, and was again denied entry by a court officer.

[10]      Mr. Taylor asked Mr. Laws’ counsel to bring a second application to permit him to attend Mr. Laws’ trial. Mr. Laws’ counsel agreed to do so. In support of the motion, Mr. Taylor swore an affidavit explaining the religious purpose of his head covering. Again, Whealy J. dismissed this application, and gave substantially the same reasons offered in his earlier ruling. At trial, Mr. Laws was eventually convicted of most of the offences with which he was charged.[3]

[11]      Mr. Taylor filed a complaint regarding Whealy J.’s conduct with the Ontario Human Rights Commission. The Ontario Human Rights Commission concluded that it could not investigate the complaint because it did not have jurisdiction to do so. It justified its conclusion by reason of the fact that the Ontario Human Rights Commission only has jurisdiction over provincial matters, and that Ontario Court—General Division judges are appointed by the federal government.

[12]      Mr. Taylor then complained of Whealy J.’s conduct to both the Canadian Judicial Council (the Council) and to the Canadian Human Rights Commission (the Commission).

[13]      The Council advised Mr. Taylor that it would not take any action on his complaint, saying that “it is apparent that Mr. Justice Whealy took the steps he considered necessary to maintain order in his courtroom.” It concluded that “his authority to make these rulings … involved legal rights that cannot be decided or reviewed by this Council.” It advised him that Whealy J.’s rulings could only be challenged by way of appeal to the Ontario Court of Appeal, something that Mr. Laws, the accused from whose trial Mr. Taylor was excluded, was pursuing.

[14]      Mr. Taylor asked the Council to reconsider its refusal to take no action. The Council refused to do so, saying that “rulings made by judges in the independent discharge of their judicial function are best left with the appeal courts.” The Council added, however, that “if the Court of Appeal should comment adversely about the conduct of a judge, this Council could well consider whether that conduct was such as would engage the jurisdiction of the Council which, as you know, is to determine whether a recommendation should be made that a judge should be removed from office.”

[15]      At the Court of Appeal, one of the grounds of appeal raised by Mr. Laws was that Whealy J.’s order to exclude members of the public who wore head coverings “undermined the appearance of a fair trial.”[4] On September 9, 1998, the Ontario Court of Appeal released its decision in Mr. Laws’ appeal, in which it quashed Mr. Laws’ conviction and ordered a new trial.

[16]      In its reasons, the Court of Appeal did not “consider it necessary to form a concluded view”[5] on whether the exclusion of members of the public who wore head coverings “is in itself sufficient to constitute reversible error,”[6] in light of its decision to accept Mr. Laws’ appeal on other grounds.[7] Still, the Court of Appeal did hold that Whealy J. erred in “the exercise of his discretion”[8] when he distinguished “between a requirement of a particular faith and a chosen religious practice,”[9] since “[f]reedom of religion under the Charter surely extends beyond obligatory doctrine.”[10] The Court also held that Whealy J. erred “in suggesting that only certain communities are clearly within the purview of the Charter,”[11] adding that “[n]o individuals or religious communities enjoy any less Charter protection than the major and recognizable religions.”[12] The Court concluded that “the trial judge erred in excluding certain members of the public from the courtroom,”[13] and that in so doing, he “may well have inadvertently created the impression of an insensitivity as to the rights of minority groups.”[14]

[17]      In light of the Court of Appeal’s judgment and the Council’s earlier statement that it could well consider whether Whealy J.’s conduct would engage the jurisdiction of the Council if the Court of Appeal commented adversely about the conduct of a judge, Mr. Taylor wrote to the Council shortly after the Ontario Court of Appeal’s decision was released, and asked that the Council reconsider his complaint.

[18]      The Council did so. It sought comments from Whealy J., who advised the Council that he “sincerely regretted if the impression was created that I am insensitive to the rights of minority groups,” and “that is not the case and was never my intent.”

[19]      In its review of Mr. Taylor’s complaint, the Council expressed disapproval of the comments Whealy J. made during Mr. Laws’ trial. It did not, however, consider the conduct to be sufficiently serious to warrant any further action by the Council, such as recommending that Whealy J. be removed from office. The Council’s decision is currently the subject of an application for judicial review by Mr. Taylor.

[20]      Mr. Taylor’s complaint to the Canadian Human Rights Commission was not successful. The Commission decided, pursuant to paragraph 41(1)(c) of the Canadian Human Rights Act,[15] not to deal with the complaint because it considered that the complaint was beyond its jurisdiction. It concluded that it did not have jurisdiction because Whealy J. benefited from the common law absolute immunity for judges.

[21]      Mr. Taylor sought judicial review of that decision to the Federal Court, Trial Division [(1997), 155 D.L.R. (4th) 740], which dismissed the application on the basis that Whealy J.’s ruling was made in his capacity as a judge and he was therefore protected by reason of judicial immunity from suit. Mr. Taylor now appeals that decision to this Court. The Canadian Jewish Congress (CJC) was granted leave to intervene in the appeal.

DECISION UNDER APPEAL

[22]      In his decision, Dubé J. [at page 744] relied on Sirros v. Moore[16] for the proposition that “a judge of a superior court is protected when he is acting in the bona fide exercise of his office and under the belief that he has jurisdiction.”[17] He held that “[i]t is common ground in the instant case that Judge Whealy acted in the course of duty and, therefore, could not be subjected to an action in damages.”[18] He added that section 5 of the Canadian Human Rights Act, which makes it a discriminatory practice to deny the provision of goods, services, facilities or accommodation customarily available to the public on a prohibited ground of discrimination, “appear[ed] to be directed to commercial premises,”[19] and “could hardly be said to encompass the conduct of a judge in [a] courtroom.”[20] Ultimately, he concluded that the Council would be a better forum in which to address Mr. Taylor’s complaint. Obviously, Dubé J.’s judgment was released before the Council’s final decision summarized above was released.

ISSUE ON APPEAL

Does Mr. Taylor’s complaint fall within the jurisdiction of the Commission, or is it barred by common law judicial immunity?

ANALYSIS

Was Mr. Taylor without a remedy?

[23]      The CJC began its submissions with the proposition that the harm complained of by Mr. Taylor has been compounded by the fact that he was left without a traditional right to appeal Whealy J.’s decision. The CJC explains that because Mr. Taylor was not a party to the criminal trial that he sought to attend, Mr. Taylor had no recourse to a right of appeal. Accordingly, the CJC submits that should this Court conclude that the Commission may not review Whealy J.’s conduct, Mr. Taylor will be left without a just and appropriate remedy. This, of course, ignores the remedy of lodging a complaint to the Canadian Judicial Council, a remedy of which Mr. Taylor availed himself.

[24]      In any event, it appears that Mr. Taylor could have appealed Whealy J.’s order. In Dagenais v. Canadian Broadcasting Corp.,[21] Lamer C.J. considered the method that third parties should adopt to appeal publication bans made under “common law or legislated discretionary authority.”[22] He concluded that where a provincial superior court judge issued such a publication ban, the media (and other third parties) could challenge the ban directly to the Supreme Court of Canada by applying for leave to appeal to the Supreme Court, pursuant to section 40 of the Supreme Court Act.[23] Therefore, Dagenais demonstrates that Mr. Taylor could have sought to appeal Whealy J.’s order, made pursuant to legislated discretionary authority, directly to the Supreme Court of Canada. Mr. Taylor did not do so.

The ambit of judicial immunity

[25]      Litigants turn to courts and judges to resolve difficult problems where all other means of resolving the dispute have failed. Consequently, as the United States Supreme Court held in Bradley v. Fisher,[24] courts are often asked to decide cases “involving not merely great pecuniary interests, but the liberty and character of the parties, and consequently exciting the deepest feelings.”[25] As that Court also noted, such litigation inevitably produces at least one losing party, who is likely to be disappointed with the result.

[26]      Consider what might happen if judges could be regularly sued for decisions that stirred such disappointment. One potential consequence is that a certain end to disputes, one of the primary advantages of resolving disputes by resort to the courts, would never occur. If one action against a judge was dismissed by another judge, the second judge might well be added as a party to the action, and so on, and so on. This consequence was highlighted in Bradley v. Fisher, where Field J. commented that an appellate judge who decided that a judge of an inferior jurisdiction was protected by judicial immunity “would be subjected to a similar burden, as he in his turn might also be held amenable by the losing party.”[26]

[27]      Similarly, if judges could be sued by disappointed litigants for damages for allegedly erroneous decisions, every judge would be required to preserve “a complete record of all the evidence produced before him in every litigated case, and of the authorities cited and arguments presented, in order that he might be able to show to the judge before whom he might be summoned by the losing party … that he had decided as he did with judicial integrity.”[27] If a suit was eventually begun against a judge, much of that judge’s time and energy would then be devoted to defending the suit, rather than to his or her judicial work. Already scarce judicial resources would be lost, and court cases would take even longer to be heard and to be resolved.

[28]      Finally, the most serious consequence of permitting judges to be sued for their decisions is that judicial independence would be severely compromised. If judges recognized that they could be brought to account for their decisions, their decisions might not be based on a dispassionate appreciation of the facts and law related to the dispute. Rather, they might be tempered by thoughts of which party would be more likely to bring an action if they were disappointed by the result, or by thoughts of whether a ground-breaking but just approach to a difficult legal problem might be later impugned in an action for damages against that judge, all of which would be raised by the mere threat of litigation. In Lord Denning’s words, a judge would “turn the pages of his books with trembling fingers, asking himself: ‘If I do this, shall I be liable in damages?’”[28]

[29]      Accordingly, the basis for judicial immunity is rooted in the need to protect the public, not in a need to protect judges. In other words, as Lord Denning explained in Sirros v. Moore, judicial immunity does not exist because a “judge has any privilege to make mistakes or to do wrong.”[29] Rather, he held that judges should be free from actions for damages to permit judges to perform their duty “with complete independence and free from fear.”[30] Similarly, in Scott v. Stansfield,[31] it was explained that judicial immunity is not meant to protect malicious or corrupt judges, but to protect the public:

It is essential in all courts that the judges who are appointed to administer the law should be permitted to administer it under the protection of the law independently and freely, without favour and without fear. This provision of the law is not for the protection or benefit of a malicious or corrupt judge, but for the benefit of the public, whose interest it is that the judges should be at liberty to exercise their functions with independence and without fear of consequences.[32]

The “bad faith” exception to judicial immunity

[30]      It has been suggested that there are limits to judicial immunity. For instance, in an extract from Halsbury’s Laws of England,[33] the authors noted:

Whenever protection of the exercise of judicial powers applies, it is so absolute that no allegation that the acts or words complained of were done or spoken mala fide, maliciously, corruptly, or without reasonable or probable cause suffices to found an action. The protection does not, however, extend to acts purely extra-judicial or alien to the judicial duty of the defendant ….

[31]      Another view is expressed in H. Brun and G. Tremblay’s textbook Droit constitutionnel,[34] where the authors state that [translation] “absolute immunity is a rule of the common law applicable to superior court judges even where bad faith has been alleged.”[35]

[32]      In Sirros v. Moore, Lord Denning held [at page 785]:

Each [judge] should be protected from liability to damages when he is acting judicially. Each should be able to do his work in complete independence and free from fear. … So long as he does his work in the honest belief that it is within his jurisdiction, then he is not liable to an action. He may be mistaken in fact. He may be ignorant in law. What he does may be outside his jurisdiction—in fact or in law—but so long as he honestly believes it to be within his jurisdiction, he should not be liable. Once he honestly entertains this belief, nothing else will make him liable. He is not to be plagued with allegations of malice or ill-will or bias or anything of the kind. Actions based on such allegations have been struck out and will continue to be struck out. Nothing will make him liable except it be shown that he was not acting judicially, knowing that he had no jurisdiction to do it.

[33]      In McC v. Mullan, Lord Bridge said:[36]

It is, of course, clear that the holder of any judicial office who acts in bad faith, doing what he knows he has no power to do, is liable in damages. If the Lord Chief Justice himself, on the acquittal of a defendant charged before him with a criminal offence, were to say, “That is a perverse verdict,” and thereupon proceed to pass a sentence of imprisonment, he could be sued for trespass. But, as Lord Esher MR said in Anderson v Gorrie [1895] 1 QB 668 at 670:

“… the question arises whether there can be an action against a judge of a Court of Record for doing something within his jurisdiction, but doing it maliciously and contrary to good faith. By the common law of England it is the law that no such action will lie.”[37]

[34]      In Morier et al. v. Rivard,[38] the Supreme Court of Canada quoted all of the above passages without clearly saying which it agreed with. Morier et al. v. Rivard was an appeal from the Quebec Court of Appeal [[1983] C.A. 334]. In its decision, the Quebec Court of Appeal had cited Sirros v. Moore for the proposition that the action at issue should not be dismissed by reason of judicial immunity, since “[j]udicial attitudes to its scope have evolved.”[39] It held that “[t]he immunity does not seem to be absolute but to depend largely on the ultra vires of the act committed by the judge and on the knowledge which he has that he lacked jurisdiction.”[40]

[35]      On appeal to the Supreme Court of Canada, Chouinard J. disagreed with the Quebec Court of Appeal. He concluded that “Sirros does not support the proposition of the Court of Appeal that the immunity is not absolute.”[41] However, later in his judgment, he noted:

It should be noted that neither Lord Bridge of Harwich nor Lord Denning cited authorities in support of the qualification made by them. In any case, it is not necessary to decide the merits of that for the purposes of this appeal.[42]

[36]      Chouinard J. decided it was not necessary in the context of a motion to dismiss, where one must assume that “the facts alleged are true,”[43] to determine whether judicial immunity would not apply where it is shown that a judge “was not acting judicially, knowing that he had no jurisdiction to do it”.[44] He arrived at that conclusion despite the fact that one of the allegations in the plaintiff’s statement of claim was that the defendants, members of the Commission de police du Québec who benefited from a statutory provision that conferred on its members “the same protection and privileges as are conferred upon judges of the Superior Court, for any act done or omitted in the execution of their duty,”[45] had “knowingly committed a fraud on the law.”[46]

[37]      Since Morier et al. v. Rivard was decided, the Quebec Court of Appeal has accepted that an exception to judicial immunity indeed exists. In Royer v. Mignault,[47] Rothman J.A. cited Sirros v. Moore; McC v. Mullan; and Morier et al. v. Rivard, and concluded:

… a Superior Court judge is protected by absolute immunity from any civil liability for anything he does or says in the performance of his functions as a judge. He will not be liable in damages unless he acts outside of his jurisdiction knowing that he has no power to do what he does.[48]

[38]      Similarly, Professor Friedland in his report A Place Apart: Judicial Independence and Accountability in Canada, implicitly supports the notion of a bad faith exception to the absolute immunity rule.[49]

[39]      More recently, in Proulx c. Québec (Procureur général),[50] the Quebec Court of Appeal reiterated its commitment to the Sirros v. Moore exception to judicial immunity:

… it cannot be clearly inferred from Morier that Chouinard J. adopted the reservations expressed by Lord Denning in Sirros v. Moore, … and Lord Bridge of Harwich in McC v. Mullan, … to the effect that the immunity given the members of the superior courts would not stand in the way of an action in damages against “a judge who in bad faith did something which he knew he did not have the jurisdiction to do” or “a judge who was not acting in the course of his judicial duties knowing that he had no jurisdiction to act” … this Court acknowledged the limits to immunity contemplated by the English cases in Royer v. Mignault, [1988] R.J.Q. 670, 50 D.L.R. (4th) 345 (C.A.); Lachance v. Québec, no. 200-09-000278-942, July 5, 1994 …[51]

[40]      In oral argument, Mr. Taylor and the CJC submitted that Whealy J.’s conduct falls within the bad faith exception to judicial immunity. They conceded that this argument was being raised for the first time in this Court and that it had not been raised in their written material or before Dubé J. They also conceded that the complaint Mr. Taylor had made to the Commission on October 28, 1994, did not allege that Whealy J. had acted in bad faith.

Conclusion on the “bad faith” exception

[41]      While it cannot be said that the Supreme Court of Canada has definitively decided the point, I am inclined to accept the proposition that Lord Denning’s exception to judicial immunity is good law in Canada: that is, judicial immunity does not apply where it is shown that a judge knowingly acts beyond his jurisdiction.

Does Judge Whealy’s order fall within the “bad faith” exception?

[42]      I do not think that Whealy J.’s order falls within the “bad faith” exception to judicial immunity. The exception does not apply because Whealy J. had jurisdiction to make the order he made.

[43]      Whealy J.’s order was authorized by subsection 486(1) of the Criminal Code [R.S.C., 1985, c. C-46 (as am. by R.S.C., 1985 (1st Supp.), c. 27, s. 203)]. In R. v. Laws, the Ontario Court of Appeal recognized that “[t]he relevant statutory enactment regarding exclusion of the public from a courtroom is s. 486(1) of the Criminal Code, R.S.C., 1985, c. C-46,”[52] which states:

486. (1) Any proceedings against an accused shall be held in open court, but where the presiding judge, provincial court judge or justice, as the case may be, is of the opinion that it is in the interest of public morals, the maintenance of order or the proper administration of justice to exclude all or any members of the public from the court room for all or part of the proceedings, he may so order.

[44]      The Ontario Court of Appeal accepted that Whealy J. erred by excluding Mr. Taylor from the courtroom. Nevertheless, subsection 486(1) of the Criminal Code gave him jurisdiction to make the order, even if it was later determined that he had erred in the exercise of his discretion. Indeed, in its reasons in Laws, the Ontario Court of Appeal noted that Whealy J. had made an error “in relation to the exercise of his discretion.”[53]

[45]      In the reasons offered for his first ruling, Whealy J. held that “it cannot be doubted that a presiding judge not only has the authority but also the duty to oversee the demeanour, solemnity and dignity which must prevail in a superior court of law,”[54] language that parallels subsection 486(1) of the Criminal Code. It is clear from the following quote that Judge Whealy was making the order because he thought it was necessary to maintain order in the courtroom, one of the purposes of subsection 486(1):

There are, as well, many self-proclaimed and unrecognized forms of religion or cults claiming to be religious which have occurred not only this year, but throughout history. They come and go. Often, to attract attention and new adherents, bizarre, intrusive or simply impolite attire is worn. These religions may exist and may have limited Charter protection, but the Charter does not guarantee some right to enter and remain in a courtroom where the result is disruptive.

[46]      Accordingly, in my view, Whealy J. did not act outside of his jurisdiction. His actions did not reach the point in the example offered above by Lord Bridge, where jurisdiction was clearly lacking.

[47]      In his second ruling, Whealy J. noted that “absolutely no case law was put forward to support any of the submissions made by the accused, whether concerning the court’s authority to govern its own process or concerning religious discrimination or any other aspect of the accused’s submissions, even though the court specifically enquired if there was to be any.”[55] Similarly, in its reasons in Laws, the Ontario Court of Appeal noted that any impression of insensitivity created by Whealy J.’s order was inadvertent.[56] Accordingly, in my view, this is not a case where Whealy J. neither believed he was without jurisdiction nor lacked jurisdiction. Rather, he in fact did have jurisdiction by reason of subsection 486(1) of the Criminal Code, and he clearly thought he had jurisdiction. Thus, in this case, it is strictly not necessary to decide whether any “bad faith” exception applies to the principle of judicial immunity.

Administrative acts

[48]      The CJC submits that this Court should adopt a distinction between administrative acts, where no judicial immunity applies, and judicial acts, where judicial immunity does apply. The distinction appears to have been drawn in some U.S. cases.[57] However, none of the U.S. cases were concerned with the maintenance of order and decorum in the courtroom. They were rather concerned with what were clearly administrative acts, not involving the exercise of judicial functions.

[49]      I do not agree with the proposition that Whealy J.’s order constituted an administrative act. His order was judicial and was made with jurisdiction, albeit jurisdiction that the Ontario Court of Appeal concluded he had wrongly exercised. This conclusion is supported by the Federal Court of Appeal’s judgment in McCann v. The Queen,[58] where the Court held that it was within the inherent jurisdiction of the Court “to make orders for the control of order and decorum in the Court room during the course of the trial.” In that sense, something that is within the inherent jurisdiction of a Court cannot be an administrative act.

Does the Charter require that judicial immunity be relaxed?

[50]      Mr. Taylor submits that should judicial immunity serve to immunize federally appointed judges from the Canadian Human Rights Act, any such principle should be modified to accord with basic Charter [Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]] values.

[51]      Similarly, the CJC submits that the purpose of judicial immunity is to protect judges from civil suits, not from an administrative human rights proceeding. Like Mr. Taylor, the CJC also submits that judicial immunity has been or ought to be modified to better accord with human rights legislation and the Charter. CJC submits that judicial authority would be better served by subjecting federally-appointed judges to a human rights process than it would be if it were not.

[52]      I do not agree with these submissions. The primary authority cited for these propositions is the Supreme Court of Canada’s decision in Nelles v. Ontario.[59] In that case, the Supreme Court considered whether several parties, including the Attorney General for Ontario, benefited from a common law absolute immunity from civil liability in a suit for malicious prosecution.

[53]      In his reasons, Lamer J. (as he then was) concluded that to provide absolute immunity to prosecutors would strike at equality under the law:

The existence of an absolute immunity strikes at the very principle of equality under the law and is especially alarming when the wrong has been committed by a person who should be held to the highest standards of conduct in exercising a public trust.[60]

[54]      Accordingly, he concluded that the Attorney General did not benefit from absolute immunity to claims of malicious prosecution.

[55]      In its reasons, the Supreme Court noted that a plaintiff must meet four tests to successfully establish malicious prosecution. One of these tests requires demonstrating that a prosecutor brought proceedings against a person with “malice, or a primary purpose other than that of carrying the law into effect,”[61] something that Lamer J. characterized as having “a wider meaning than spite, ill-will or a spirit of vengeance, and includes any other improper purpose, such as to gain a private collateral advantage.”[62]

[56]      Firstly, it must be pointed out that the Supreme Court of Canada in Nelles was not dealing with “judicial immunity” but rather immunity for prosecutorial officers.

[57]      Secondly, I conclude that judicial immunity is not inconsistent with the Charter, since judicial immunity itself is a fundamental constitutional principle. In MacKeigan v. Hickman,[63] McLachlin J. (as she then was) held that “[t]he analysis in Beauregard v. Canada supports the conclusion that judicial immunity is central to the concept of judicial independence.”[64]

[58]      Lamer C.J. held in Reference re Remuneration of Judges of the Provincial Court (P.E.I.), that judicial independence is an unwritten constitutional principle, recognized by the preamble to the Constitution Act, 1867 [30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item 1) [R.S.C., 1985, Appendix II, No. 5]].[65] He also said that “[j]udicial independence is valued because it serves important societal goals”[66] one of which is “the maintenance of public confidence in the impartiality of the judiciary, which is essential to the effectiveness of the court system.”[67]

[59]      Accordingly, judicial immunity is itself a constitutional principle, contrary to the proposition submitted by Mr. Taylor and the CJC that judicial immunity is inconsistent with the enactment of the Charter and quasi-constitutional human rights legislation.

[60]      Finally, in my view, the exception to absolute immunity established in Sirros v. Moore is an extremely narrow one. It will be the rare case indeed where a plaintiff can show that a judge acted with the knowledge that he or she had no jurisdiction. The example cited by Lord Bridge in McC v. Mullan demonstrates both the need for an exception to the judicial immunity principle, as well as the limited nature of the exception.

[61]      Nelles also demonstrates just how narrow the exception to judicial immunity is. In Nelles, Lamer J. narrowly circumscribed the malicious prosecution exception to prosecutorial immunity. He held that malicious prosecution was not concerned with instances of mere “second-guessing a Crown Attorney’s judgment in the prosecution of a case.”[68] Rather, he held that malicious prosecution dealt with “allegations of misuse and abuse of the criminal process and of the office of the Crown Attorney”:[69] something that Lamer J. described as “the deliberate and malicious use of the office for ends that are improper and inconsistent with the traditional prosecutorial function.”[70]

[62]      Lamer J. held that in the context of a claim for malicious prosecution, “a plaintiff … has no easy task.”[71] He held that “the burden on the plaintiff is onerous and strict.”[72] He added that a claim for malicious prosecution required a plaintiff to demonstrate “improper motive or purpose,”[73] and that “errors in the exercise of discretion and judgment are not actionable.”[74] In that sense, Nelles is consistent with the proposition that the “bad faith” exception to judicial immunity cannot be engaged merely where a judge errs in the exercise of his or her discretion, as happened in the present case.

[63]      In light of the constitutional importance of judicial immunity, I conclude that any “bad faith” exception to judicial immunity that exists is just as narrow, if not more so, than the exception to prosecutorial immunity addressed in Nelles.

[64]      I also disagree with the proposition that to recognize any exception to judicial immunity would open the flood-gates to vexatious claims. Lord Denning decided Sirros v. Moore in 1974, and the flood-gates have not opened.

[65]      The flood-gates argument was advanced in Nelles, where the Attorney General for Ontario submitted that to provide prosecutors with anything less than absolute immunity “would act as a “chilling effect” on the Crown Attorney’s exercise of discretion” or would raise a “flood-gates” of unmeritorious claims.[75] Lamer J. rejected these arguments, highlighting the strict burden summarized above that plaintiffs must fulfill to establish malicious prosecution. He also noted that frivolous claims could be “struck before trial as a matter of substantive inadequacy,”[76] or that a defendant could “move for summary judgment before a full-fledged trial takes place.”[77] He added that “the potential that costs will be awarded to the defendant if an unmeritorious claim is brought acts as financial deterrent to meritless claims.”[78] Accordingly, he concluded that “ample mechanisms exist within the system to ensure that frivolous claims are not brought.”[79]

[66]      Since these same protective mechanisms would apply to claims made in the name of judicial “bad faith,” I also conclude that our system provides a sufficient level of protection to guard against totally unmeritorious claims.

Does judicial immunity apply to complaints brought before the Canadian Human Rights Commission?

[67]      Mr. Taylor and the CJC rely on the following excerpt from McLachlin J.’s judgment in MacKeigan for the proposition that judges may be subject to the provisions of the Canadian Human Rights Act:

I do not say that the power in the courts to control their own administration is absolute, if by absolute what is meant is that in no circumstances can the Legislature or Parliament enact laws relating to the functioning of the courts or enquire into the conduct of particular judges. As noted earlier, Parliament and the Legislatures have long enacted legislation establishing courts and setting general guidelines as to how they function. Nor is there any doubt that Parliament may impeach a federally appointed judge for dereliction of duty. To this extent the fundamental principle of judicial independence must leave scope for another cardinal doctrine—the principle of Parliamentary supremacy.[80]

[68]      In MacKeigan, McLachlin J. concluded that she would “leave to other cases the determination of whether judges might be called on matters such as these before other bodies … which possess sufficient safeguards to protect the integrity of the principle of judicial independence.”[81] Presumably, the Canadian Judicial Council would qualify as such a “body.”

[69]      I do not think that the Canadian Human Rights Commission or the Canadian Human Rights Tribunal possess such safeguards. If the Commission were afforded the opportunity to investigate Mr. Taylor’s complaint, an investigator could be afforded the power to obtain a warrant, which would authorize the investigator to “enter and search [any] premises” where there is “any evidence relevant to the investigation of a complaint.”[82] The warrant may be obtained on an ex parte application to a Federal Court judge where the judge “is satisfied by information on oath that there are reasonable grounds to believe that there is in any premises any evidence relevant to the investigation of a complaint.” Essentially, such an ex parte order would permit the Commission to search through Whealy J.’s chambers, his files, his draft reasons, and so on. In my view, to even afford the Commission the power to investigate whether Whealy J. was acting in a judicial capacity would completely destroy judicial immunity and judicial independence.

[70]      Once the Commission was seized of an investigation, it could request the Canadian Human Rights Tribunal to inquire into Mr. Taylor’s complaint so long as the Commission was satisfied, “having regard to all the circumstances of the complaint, an inquiry is warranted.”[83] If the Tribunal eventually heard Mr. Taylor’s complaint, the consequences for judicial independence would be no less dire. Subsection 53(2) of the Canadian Human Rights Act establishes several broad remedies made available to the Tribunal if it concludes that a complaint is substantiated. The subsection permits the Tribunal to require, inter alia, “that the person compensate the victim for any or all of the wages that the victim was deprived of”[84] or “that the person compensate the victim, by an amount not exceeding twenty thousand dollars, for any pain and suffering that the victim experienced as a result of the discriminatory practice.”[85] The Tribunal may also require that “the person cease the discriminatory practice,” and adopt “a special program … to redress the practice or to prevent the same or a similar practice from occurring in the future.”[86] Other remedies include the requirement that a person “make available to the victim of the discriminatory practice, on the first reasonable occasion, the rights, opportunities or privileges that are being or were denied the victim as a result of the practice.”[87] These remedies would be no less harmful to the unwritten constitutional principle of judicial independence, and further serve to highlight the necessity that the principle of judicial immunity applies so as to prevent proceedings against judges before the Commission.

CONCLUSION

[71]      Accordingly, I do not think that Dubé J. or the Commission erred in concluding that paragraph 41(1)(c) of the Canadian Human Rights Act prevents the Commission from dealing with Mr. Taylor’s complaint because it was beyond their jurisdiction. I would dismiss the appeal with costs.

[72]      The Attorney General of Canada will not be awarded costs against the CJC, in light of Noël J.A.’s order dated August 28, 1998, which granted the CJC leave to intervene in the appeal, and which ordered that the Attorney General shall not seek costs against the CJC in any event of the appeal.

Robertson J.A.: I agree.

Evans J.A.: I agree.

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