This power is clearly set out in section 99 of the former British North America Act now known as the Constitution Act 1867 which established Canada as a nation.
99. (1) Subject to subsection (2) of this section, the judges of the superior courts shall hold office during good behaviour, but shall be removable by the Governor General on address of the Senate and House of Commons.
Subsection 2 is the mandatory retirement age.
(2) A judge of a superior court, whether appointed before or after the coming into force of this section, shall cease to hold office upon attaining the age of seventy-five years, or upon the coming into force of this section if at that time he has already attained that age.
These provisions of the Canadian Constitution distinguish Canada from the United States where most judges are elected.
In Canada, all judges are appointed by the elected representatives of the people and so all judges can be removed by the elected representatives of the people. There is not one single elected judge in the whole of Canada.
Many years ago, under the leadership of Justin Trudeau`s father, Pierre Trudeau, parliament created the Canadian Judicial Council and conferred on that council the power to carry out investigations and recommend to the Governor General, Senate and House of Commons that a judge be removed. This was a legitimate development and was intended to have a body that was removed from politics review judicial conduct.
In fact, many genuine cases of judicial misconduct are handled quietly and without any public comment by the Council.
When a judge is notified that the Council has found certain facts that establish that he or she is guilty of some kind of misconduct that judge will often resign instead of facing an embarrassing investigation that may or may not be public. Once in a while a judge will fight the case but usually they go quietly.
The Canadian Government and the Judiciary prefers that the system operate this way so the public will not lose faith in its judicial administration.
Any member of the public has the right to make a complaint to the Canadian Judicial Council and the Council may investigate that complaint. The Council is not required to investigate any complaint by the public and often it does not.
Section 63 (2) of the Judges Act clearly states:
So, when Wilfred Doyle and his wife Shelly Mosher witnessed the judges of the superior courts of Prince Edward Island bending and twisting the law to favour their family and friends they wrote the Canadian Judicial Council and asked for an investigation.
Naturally, the Canadian Judicial Council refused to investigate.
Observers of the Canadian Judicial Council have noticed that the institution rarely carries out an proper investigation upon a complaint by an average citizen.
In 99% of the cases filed, the Council refused to investigate.
The Council consists of the Chief Justices and Associate Chief Justices of each province and so, if you are complaining about a Chief Justice and his cousin or his daughter, the Council is not going to investigate itself.
So, when Wilfred Doyle and his wife, Shelly Mosher, complained to the Canadian Judicial Council and under section 63 (2), as they are entitled to do, the Council, as expected, did nothing because chief justices do not investigate themselves.
63 (1) The Council shall, at the request of the Minister or the attorney general of a province, commence an inquiry as to whether a judge of a superior court should be removed from office for any of the reasons set out in paragraphs 65(2)(a) to (d).
As expected, neither Jody Raybould-Wilson nor Wade McLaughlin had the moral courage to exercise the power that they have under section 63 (1) of the Act. Well, this may not be entirely true because it is probable that, in the case of Jody Raybould Wilson, Jody was never informed of the request because Department of Justice lawyers often deliberately keep the minister unaware of issues and the Department is so big that the Minister simply cannot know what is going on but, in the case of Wade, well..., Prince Edward Island is so small that the Premier and Attorney General usually read their own mail.
However, when Parliament, under the guidance of the wiley Pierre Trudeau, enacted the Judges
Act Parliament made it abundantly clear that Parliament reserved for itself the ultimate power to fire crooked judges because Parliament and Pierre Trudeau clearly knew that, sooner or later, the Judges at the Judicial Council would refuse to investigate a real case of judicial corruption because they were too deeply involved themselves.
Section 71 of the Judges Act makes this abundantly clear:
71 Nothing in, or done or omitted to be done under the authority of, any of sections 63 to 70 affects any power, right or duty of the House of Commons, the Senate or the Governor in Council in relation to the removal from office of a judge, a prothonotary of the Federal Court or any other person in relation to whom an inquiry may be conducted under any of those sections.
So, when Jody Raybould-Wilson and Wade McLaughlin refused to co-operate and exercise the power they have under the section 63 (1) of the Judges Act Wilfred Doyle and Shelly Mosher contacted Prime Minister Justin Trudeau, Jody Raybould-Wilson, Dominic Leblanc and House Speaker Geoff Regan and asked them to collectively act under under section 71.
Click here to read June 10, 2016 letter to Prime Minister Trudeau Jody Raybould-Wilson, Dominic Leblanc and House Speaker Geoff Regan
When Ministers in Canada take office Oath of Office they swear as follows:
I, (name), do solemnly and sincerely promise and swear (or declare) that I will truly and faithfully, and to the best of my skill and knowledge, execute the powers and trusts reposed in me as (office), so help me God.The prime minister's oath is slightly different:
I, (name), do solemnly and sincerely promise and swear (or declare) that I will truly and faithfully, and to the best of my skill and knowledge, execute the powers and trust reposed in me as Prime Minister of Canada. So help me God.[citation neededSo, time will tell whether or not Justin Trudeau, Jody Raybould Wilson and Dominic Leblanc will keep their Oath of Office and execute the "powers" and "trusts" reposed upon them by section 71 of the Judges Act and section 99(1) of the Constitution Act.
And God is watching ....