Subpoena For Judge Denied In Bar Investigation
The Manitoba Law Society has denied a preliminary motion to compel the testimony of a justice at the discipline hearing on counts of alleged misconduct
The facts that give rise to the citation arose out of a complex litigation file being managed in the Court of King’s Bench. The member acted for one of the parties to the litigation and there was counsel representing the other parties. A case management conference, presided over by Justice Rempel, was held on March 20, 2023. The conference took place over a videoconferencing platform, operated by the court. The member recorded the conference. The Law Society alleges in count 1 of the citation, that the making of the recording was contrary to a court direction and was made without the “assent or knowledge” of the judge.
A second case management conference was held on May 9, 2023, and was not recorded. At this conference, an affidavit of documents prepared by the member was filed and the recording of the March 20, 2023 case management conference was listed. The judge took exception to the case management conference having been recorded and, by letter dated May 12, 2023, sent a complaint to the Law Society, with a copy to the member.
The justice notified the Law Society and an investigation was commenced.
Once the member was aware that the judge had made a complaint against him, he wrote to the judge on June 1, 2023, asking the judge to recuse himself. There was a subsequent case management conference held on June 9, 2023. This was recorded by the court. The transcript shows that the judge declined to discuss anything related to the Law Society complaint and indicated that he would not address recusal without a Notice of Motion and proper supporting materials being filed. A subsequent case management conference was held on June 23rd and at that hearing the member filed a motion seeking recusal. This was then set down for a hearing to be held on September 15th. The hearing was subsequently adjourned to no fixed date.
On September 8, 2023, the member wrote to the judge and copied several people including the Chief Executive Officer of the Society. Some of the statements in the letter describe the judge as a “hog” and an “accused”; he is stated to have
“improper[ly] interfere[ed] with access to justice” and that this had prevented the appeal of his “needless odd orders”; he is said to have acted in a manner that is “despicable and unbecoming.” This letter forms the basis of the third count in the citation which alleges a breach of the duty to treat the court with candour, fairness courtesy and respect
Following its receipt of the copy of the September 8th letter, the Law Society wrote to the member seeking an explanation. In his reply, dated November 27, 2023, the member asserts that Justice Rempel had said several things to the member during the unrecorded May 9, 2023 case conference, (and perhaps on other occasions), that were humiliating, embarrassing and discriminatory. For example, one complaint is that the judge “insulted my gender enquiring as to whether I was a he or she.” This letter forms the basis for the fourth count in the citation which alleges a breach of the duty of candour, fairness, courtesy and respect, as well as a breach of the duty to not communicate in a manner that is abusive, offensive, or otherwise inconsistent with the proper tone of professional communication from a lawyer.
At issue here is the lawyer’s subpoena for the justice’s testimony
Based on these authorities, it is clear that the Law Society, a body emanating from the legislature (to paraphrase McLachlin, J.) has no power to compel testimony from Justice Rempel to explain or justify how he reached his decisions. The Law Society cannot compel Justice Rempel to answer questions regarding his decision not to record case management conferences over which he presided. It cannot compel testimony on his decision to decline to voluntarily recuse himself from the file. It cannot compel evidence from him on his refusal to address recusal at the June 9th case conference. All of these decisions fall squarely within his judicial functions.
However, the member goes further. He argues that there is an exception to the general rule of judicial immunity where the judge acts with bias, bad faith and malice.
I do not accept that there is an exception to judicial immunity in the face of bad faith or malice allegations.
(Mike Frisch)