Girouard v. Canadian Judicial Council

Girouard v. Canadian Judicial Council
Court (s) Database
Federal Court Decisions
Date
2015-03-11
Neutral citation
2015 FC 307
File numbers
T-646-14
Decision Content
Date: 20150311
Docket: T-646-14
Citation: 2015 FC 307
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Montréal, Quebec, March 11, 2015
PRESENT: The Honourable Mr. Justice Martineau
BETWEEN:
MICHEL GIROUARD
Applicant
and
THE REVIEW PANEL CONSTITUTED UNDER THE PROCEDURES FOR DEALING WITH COMPLAINTS MADE TO THE CANADIAN JUDICIAL COUNCIL ABOUT FEDERALLY APPOINTED JUDGES
AND
THE ATTORNEY GENERAL OF CANADA
Respondents
ORDER AND REASONS
[1] The applicant, the Honourable Michel Girouard, is asking that the Court’s order striking his application for judicial review be set aside. For the purposes of ruling on this motion to set aside, the Court has considered all the documentation already submitted by the parties in T-646-14 and T‑1557‑14 in light of the additional evidence, the written submissions filed with the motion records and replies of the parties, and the oral arguments of counsel at the hearing of February 24, 2015.
[2] It should be noted that on December 5, 2014, the Court allowed the motion to strike filed by the Attorney General of Canada (respondent) in this matter, on the ground that the application for judicial review was premature: Girouard v Attorney General of Canada et al, 2014 FC 1175 (Girouard 1). At the same time, the Court allowed the motion to strike filed by the Respondent in T-1557-14 because the application for judicial review did not disclose a reasonable cause of action: Girouard v Attorney General of Canada and al, 2014 FC 1176 (Girouard 2).
[3] Briefly, the applicant now seeks the Court not only to set aside its order of December 5, 2014, in this matter, but also to order a complete stay of proceedings before the Canadian Judicial Council (CJC). The applicant alleges that he has recently discovered the existence of a “matter” in the CJC’s record that shows, first, that the principle of separation was not observed, resulting in an irremediable lack of procedural fairness, and second that the inquiry commenced before the Inquiry Committee in his absence, which infringes his right to a full answer and defence.
[4] Concurrently with the Applicant’s motion to set aside, the CJC asked for intervener status. On February 24, 2015, the Court granted in part the motion to intervene before hearing the oral submissions of the parties on the merits of this motion to set aside.
[5] On February 23, 2015, on instructions of the Court, the CJC served and filed the following draft order:
[Translation]
The Court authorizes the Canadian Judicial Council to intervene in this case and grants it intervener status, with all the rights accorded to a party, including the right to submit a file containing documents and evidence, including an affidavit, the right to make oral submissions at the hearing, the right to appeal the decision and any other right enjoyed by a party in connection with the motion to set aside the decision rendered on December 5, 2014, but only in regard to the following:
All allegations concerning the integrity of the inquiry process, the Council’s inadequate application of its own inquiry process through its By-laws, Procedures and enabling legislation, and in particular allegations of irremediable lack of procedural fairness, infringing a fundamental principle of “separation” of each step in the inquiry process, and commencing the inquiry in the applicant’s absence, thus infringing his fundamental right to a full answer and defence.
Without costs.
[6] It is very difficult for me to see, in the above draft order, a [Translation] “conservatory intervention” as one of CJC’s counsel claimed at the hearing. An administrative tribunal is not generally allowed to defend the merits of a decision disputed on judicial review. And, by and large, as so eloquently put in Northwestern Utilities Ltd et al v Edmonton, [1979] 1 SCR 684, at page 710: “To allow an administrative board the opportunity to justify its action and indeed to vindicate itself would produce a spectacle not ordinarily contemplated in our judicial traditions.”
[7] Moreover, the Federal Court of Appeal, in Canada (Attorney General) v Quadrini, 2010 FCA 246, at paragraphs 15 to 24 (Quadrini), aptly summarized why the common law restricts the scope of an administrative tribunal’s submissions in a judicial review proceeding. Besides the principle of the finality of decisions, there is the principle of impartiality. The problem is not only with respect to the unpleasant [Translation] “spectacle” that tarnishes the image of impartiality to be ascribed to the decision maker, which must be maintained in the interests of justice. Worse yet is the fact that the CJC is very poorly placed to defend before this Court, in any manner whatsoever, its actions in a matter, all the more so as in this case, the inquiry before the Inquiry Committee is not yet completed, and the CJC might subsequently be called upon to sit, as a full board, to consider this case.
[8] The range of remedies available to a court sitting on judicial review may be severely affected, ultimately, by aggressive interventions (Samatar v Canada (Attorney General), 2012 FC 1263, at paragraphs 41, 181, 185 and 186 (Samatar)). A fair distance must necessarily be kept. Here is, essentially, what Stratas J. reminds us of at paragraph 16 of Quadrini, above:
When a court allows an application for judicial review, it has a broad discretion in the selection and design of remedies: MiningWatch Canada v. Canada (Fisheries and Oceans), 2010 SCC 2, [2010] 1 S.C.R. 6. One remedy, quite common, is to remit the matter back to the tribunal for redetermination. If that happens, the tribunal must redetermine the matter, and appear to redetermine it, impartially, with an open mind. Submissions by the tribunal in a judicial review proceeding that descend too far, too intensely, or too aggressively into the merits of the matter before the tribunal may disable the tribunal from conducting an impartial redetermination of the merits later. Further, such submissions by the tribunal can erode the tribunal’s reputation for evenhandedness and decrease public confidence in the fairness of our system of administrative justice. [Emphasis added.]
[9] At the risk of repeating myself, I will say that the Review Panel constituted under the Procedures for dealing with complaints made to the Canadian Judicial Council about federally appointed judges, in force between October 14, 2010, and April 3, 2014 (Procedures), should not have been named at the outset by the applicant as co-respondent in the notice of application for judicial review. Furthermore, the Inquiry Committee constituted under the presumed authority of subsection 63(3) of the Judges Act, RSC 1985, c. J-1 (Act) and of section 2 of the Canadian Judicial Council Inquiries and Investigations By-laws, SOR/2002-371 (By-laws), has not yet sat publicly, nor has it ruled on the preliminary motions of the independent counsel and of the applicant in this matter. The applicant says today that the inquiry before the Inquiry Committee commenced in his absence. That alone does not make a respondent, since it must be presumed that the Inquiry Committee has jurisdiction at this point in the proceedings (Girouard 1, above, at paragraph 26).
[10] Because, let us recall, according to subsections 303(1) and (2) of the Federal Courts Rules, SOR/98-106 (Rules), the tribunal whose decision or competence is disputed must not be named as a respondent. Where no one can be named by default as respondent under the Rules or a statute, the Attorney General of Canada is named as respondent. To date, however, the Attorney General of Canada has not applied, under subsection 303(3) of the Rules, to be replaced by the CJC, and it is far from clear that such a motion would be allowed by the Court (see Douglas v Canada (Attorney General), 2013 FC 451).
[11] The respondent is not in conflict of interest in this case, though we have to expect that it will be the one to intervene before the Inquiry Committee (Girouard 1, above, at paragraphs 23-26), and in judicial review proceedings if there are any, to support the validity and constitutionality of the provisions of the By-laws and Procedures that the applicant is attacking (Canada (Attorney General) v Sam Lévy & Associés Inc., 2005 FC 171; Sam Lévy & Associés Inc. v Mayrand, 2005 FC 702, affirmed by 2006 FCA 205). Nor is there talk of the CJC initiating an inquiry under subsection 63(1) of the Act to consider the removal of a judge from office at the request of the minister of Justice or an attorney general of a province, as in Boilard and Cosgrove, but rather of an “ordinary complaint” made under subsection 63(2) of the Act.
[12] In this regard, should no other interested party come forward to uphold the legality of the impugned decision, the Attorney General’s intervention before the Federal Court should tend towards being that of an amicus curiae, although the Attorney General has more latitude than an amicus curiae. After all, the respondent represents the public interest: Samatar, above, at paragraphs 43 and 44. Questions of independence or institutional impartiality fall within the area of expertise of the Attorney General of Canada. The fact remains that for the purposes of the debate before the Court today, the respondent should, first and foremost, enlighten the Court, in an objective and comprehensive way, about the applicable law and the facts referred to in the proceedings, without hunting for justifications that are not provided by the tribunal itself in the impugned decision (or in the letters of the CJC). Now, up to today, the Respondent has acquitted itself very well of this delicate task.
[13] Having considered and weighed up all the relevant factors (Rothmans, Benson & Hedges v Canada (Attorney General), [1990] 1 FC 74, [1989] FCA No. 446, at paragraph 12, affirmed by [1990] 1 FC 90 (FCA); Canada (Attorney General) v Pictou Landing Band Council and Maurina Beadle, 2014 FCA 21, at paragraph 11), and noting moreover that the CJC has never expressed a desire to intervene in the present matter (Girouard 1, above, at paragraph 2), this Court, on February 24, 2015, nonetheless authorized the production, in the interests of justice, of an affidavit completed by the Executive Director and Senior General Counsel of the CJC, Norman Sabourin (Executive Director), dated February 6, 2015, and of a certain number of letters previously issued by CJC, in so far as their contents may enlighten the Court in its review of the applicant’s motion to set aside the order made on December 5, 2014. The CJC’s motion to intervene has, in other respects, been dismissed by the Court.
[14] Paragraph 399(2)(a) of the Rules provides:
399. [. . .](2) On motion, the Court may set aside or vary an order
399. […] (2) La Cour peut, sur requête, annuler ou modifier une ordonnance dans l’un ou l’autre des cas suivants :
(a) by reason of a matter that arose or was discovered subsequent to the making of the order; or
a) des faits nouveaux sont survenus ou ont été découverts après que l’ordonnance a été rendue;
[15] Due to the principle of the finality of judgments, Rule 399 has the character of an exception, and the Court will not set aside an order lightly (Rostamian v Canada (Minister of Employment and Immigration), (1991) 27 ACWS (3d) 557, [1991] FCA No. 525 (FCA) at paragraph 5). In Ayangma v Canada, 2003 FCA 382, at paragraph 3, the Federal Court of Appeal summarizes as follows the conditions that must be fulfilled for the Court to be able to allow a motion under paragraph 399(2)(a) of the Rules:
1- the newly discovered information must be a “matter” within the meaning of paragraph 399(2)(a);
2- the “matter” must not be one which was discoverable prior to the making of the order by the exercise of due diligence; and
3- the “matter” must be something which would have a determining influence on the decision in question.
[16] Although the applicant satisfies the first two conditions, I am not convinced in the case at bar that the “matter” he cites in his motion to set aside is “something which would have a determining influence on the decision in question,” since the striking of his application for judicial review is based on its premature character.
I. The newly discovered information must be a “matter” within the meaning of the Rule [17] Let us start again from the beginning. To assess the relevance of the matter alleged by the respondent within the meaning of paragraph 399(2)(a) of the Rules, the matter must be framed within a chronology taking into account that two motions for judicial review were filed by the applicant regarding the CJC’s inquiry. Unless indicated to the contrary, references to the exhibits refer to the proceedings in this case (T‑646-14).
[18] On September 30, 2010, the applicant was appointed to the Superior Court of Québec. In May 2012, he was the subject of an allegation by an informer who stated, as part of a criminal investigation, that he allegedly sold cocaine to the applicant, a lawyer at the time, until late 1989 or 1991. Moreover, this was not the only allegation concerning the actions of the applicant while he was a lawyer. On October 30, 2012, the Director of Criminal and Penal Prosecutions of the Province of Quebec sent this information to the Chief Justice of the Superior Court of Québec, the Honourable François Rolland (Exhibit D-3). The applicant—who has always denied the truth of the allegations in question—was relieved of his judicial duties in the interim. Bâtonnier Gérald R. Tremblay and Bâtonnier Louis Masson, have represented the applicant from the outset in the proceedings before the CJC and the Federal Court.
[19] On November 30, 2012, Justice Rolland approached the CJC to have it review the applicant’s conduct, and sent the CJC a copy of the relevant documents (Exhibit D-3) (the complaint). Indeed, the Executive Director treated this letter as a complaint and decided to open a file. Where a complaint is manifestly irrational or amounts to an obvious abuse of the complaint filing procedure, the Executive Director may close the file: section 2.2 of the Procedures; Canada (Attorney General) v Cosgrove, 2007 FCA 103, at paragraph 70 (Cosgrove). This is not the case in the matter before us.
[20] We come to the second level. The Vice-Chairperson of the Judicial Conduct Committee of the CJC, the late Honourable Edmond Blanchard, Chief Justice of the Court Martial Appeal Court and Justice of the Federal Court (Vice-Chairperson), examined the complaint and reviewed the documents in the record, which included the applicant’s version (letter of January 11, 2013). On February 7, 2013, as allowed by section 7.1 and paragraph 5.1(c) of the Procedures, the Vice-Chairperson asked Raymond Doray, of the law firm Lavery (the outside counsel), to make [Translation] “ further inquiries” (Exhibit D-4). The names of the persons met and the contents of the information gathered on that occasion are confidential. Suffice it to mention the following.
[21] Between February 27 and May 6, 2013, the outside counsel had various meetings or telephone conversations with judges, a representative of criminal and penal prosecutions, and investigators of the Sûreté du Québec. On May 6, 2013, the first version of the outside counsel’s [Translation] “summary report” (volume 1) was communicated to the applicant. On July 9 and 10, 2013, the outside counsel had other telephone conversations with judges, former partners or professionals who knew the applicant (volume 2). Finally, on August 13, 2013, the outside counsel met with the applicant in the company of the applicant’s counsel (volume 3). Then, on or about August 13, 2013, the outside counsel finalized his summary report (Exhibit D-5). On August 14, 2013, through his counsel, the applicant sent the outside counsel written submissions.
[22] Subsequently, as the Executive Director of the CJC notes in his affidavit of February 6, 2015, the outside counsel produced a [Translation] “confidential legal report” to the attention of the Vice-Chairperson of the CJC. The applicant says he discovered the existence of this second [Translation] “confidential report” after the order of December 5, 2014, was issued. I am satisfied in the case at bar that this is a “matter.” No such report appears in the certified record of the tribunal. It remains to be determined whether this second report could have reasonably been discovered by the applicant before December 5, 2014, and whether it represents a determining factor.
[23] On October 22, 2013, the Vice-Chairperson decided to constitute a Review Panel composed of the Honourable Justices Ernest Drapeau, Glen Joyal and Arthur J. LeBlanc. The matter now moved to the third level. Through a letter addressed to them and signed by the Executive Director, the Vice-Chairperson informed the members of the Review Panel that he had many questions about the applicant’s credibility, and recommended the inquiry be pursued (Exhibit D-6). The same day, under separate cover, the Executive Director of the CJC sent the applicant a copy of the letter of the Vice-Chairperson and of the documents pertaining to the matter.
[24] On February 6, 2014, the Review Panel decided to constitute an Inquiry Committee under subsection 63(3) of the Act, thinking the case sufficiently serious to justify the applicant`s disqualification as judge. The reasons of the Review Panel are contained in the confidential report dated the same day (Exhibit D-7).
[25] On February 11, 2014, the Executive Director informed the applicant of the Review Panel’s unanimous decision. In the letter made public at the hearing of February 24, 2015 (Exhibit ANS-2), the Executive Director specifically states:
. . .
[Translation]
In accordance with article 9.9 of the Complaint Procedures of the CJC (the “Procedures”), I am giving you a copy of a report that sets out the reasons for the Review Panel’s decision in this regard. A copy has also been sent to your counsel. I would ask you to note that this report is confidential, and as is mentioned in the report, some of the appended exhibits might be the subject of a possible publication ban by the Inquiry Committee.
Under the provisions of the By-laws, the Minister of Justice will be asked to designate one or more lawyers to sit on the Inquiry Committee. Chief Justice Blanchard will proceed, under subsection 2(1) of the By-laws, to appoint members of the Council to sit on the Inquiry Committee. He will also proceed to appoint an independent counsel who will be responsible for presenting the case to the Inquiry Committee. I will notify you of the composition of the Inquiry Committee as soon as it is finalized.
Furthermore, I ask you to note that the Council [intends to] issue a press release shortly concerning the makeup of the Inquiry Committee.
. . .
[26] The inquiry that then began before the Inquiry Committee constitutes the fourth level. After that, the CJC reviews the complaint and is called upon to rule on its merits (fifth level). The CJC then presents to the Minister of Justice a report on its conclusions and recommendations, which could ultimately lead to the disqualification of the judge (sixth level).
[27] On February 12, 2014, in accordance with subsection 1.1(4) of the By-laws, the Executive Director approached the Minister of Justice to have him appoint one or more counsel to the Inquiry Committee (Exhibit ANS-3).
[28] On March 13, 2014, the applicant filed a notice of application for judicial review of the Review Panel’s decision (the first notice of application). The applicant thereby sought to have the impugned decision struck and to have the By-laws and Procedures declared inapplicable, in whole or in part (see Girouard 1, above, at paragraph 11).
[29] Asked by letter dated April 9, 2014 (Exhibit ANS-3) to appoint one or more counsel to sit on the Inquiry Committee, the Minister of Justice appointed Ronald LeBlanc, Q.C.
[30] On April 10, 2014, in response to the request made by the applicant in his first notice of application, the Registrar of judicial conduct at the CJC filed with the Court, under Rule 318, in a sealed envelope, a certified copy of the confidential record that was before the Review Panel (record of the tribunal). The confidentiality of these documents has been maintained by the Court, which has issued various confidentiality orders that have not been revoked to date, although a large part of the correspondence exchanged since the decision of the Review Panel has by now become public (e.g. Exhibits ANS-1 to ANS-4 appended to the affidavit of the Executive Director and Exhibit CCM-1 filed at the hearing of February 24, 2015).
[31] On April 16, 2014, the respondent served and filed a notice of motion seeking to strike the first notice of application for judicial review (the first motion to strike).This notice was returnable at the general session to be held in Quebec City on May 15, 2014. The motion was not heard on this latter date, but was postponed to be heard at a special session, since the planned hearing was for more than two hours.
[32] That spring, our colleague Justice Blanchard was absent from the Court. We were ultimately to learn that this would be his last spring. In the last weeks, he remained bedridden in hospital. In his affidavit, the Executive Director explains that he was nonetheless in telephone communication with Justice Blanchard:
[Translation]
Following [the letter of April 9, 2014 of the Minister of Justice], Chief Justice Blanchard informed me by telephone of his decision to appoint, as members of the Inquiry Committee, the Honourable Richard Chartier, Chief Justice of Manitoba (chairperson) and the Honourable Paul Crampton, Chief Justice of the Federal Court, in accordance with section 2 of the By-laws. He asked me to take the usual administrative steps to give effect to his decision.
In April 2014, Chief Justice Blanchard informed me by telephone of his intention to appoint Marie Cossette as independent counsel, in accordance with section 3 of the By-laws.
On April 29, 2014, I had discussions with Gérald R. Tremblay, one of Justice Girouard’s counsel, and I informed him of the intention of Chief Justice Blanchard to appoint Marie Cossette as independent counsel.
Given the fact that Ms. Cossette, though practising in Quebec City, was part of the same law firm Lavery as Raymond Doray, who practices in Montréal, my discussions with Mr. Tremblay were intended to assure me, on behalf of Chief Justice Blanchard, that this situation would not cause any difficulty, and the undersigned thus asked Mr. Tremblay to indicate whether he saw any difficulties in Ms. Cossette being appointed.
On May 5, 2014, I followed up with Mr. Tremblay about the appointment of Ms. Cossette. Shortly thereafter, he informed me that he did not have any concerns, in so far as a “firewall” was in place between Mr. Doray and Ms. Cossette.
I advised Chief Justice Blanchard, who confirmed to me his decision to appoint Mr. Cossette, and asked me to take the usual administrative steps to give effect to his decision.
I immediately advised Ms. Cossette of her appointment and asked her to contact Mr. Tremblay to discuss the question of a [Translation] “firewall.”
At no time has the undersigned been involved in the discussions between the independent counsel and Mr. Tremblay about the drafting of Exhibit P-3 produced as confidential in T-1557-14.
[33] On June 18, 2014, the CJC publicly revealed the names of the members of the Inquiry Committee and the name of the independent counsel. That said, although no official letter had been sent to the applicant, the Executive Director had informed Mr. Tremblay of these appointments in May 2014.
[34] The second “matter” was revealed in the Executive Director’s February 6, 2015 affidavit. Concurrently with the publication of the official press release, the Executive Director of the CJC sent the three members of the Inquiry Committee, on June 18, 2014, a letter (Exhibit ANS-4) in which he mentions in particular:
[Translation]
Chief Justice Blanchard asked me to provide you with the report of the Review Panel in this case. I would please ask you to note the video recording that is included. It is possible that the judge would seek to exclude this exhibit from the evidence.
[35] Here is a “matter” of which the Court was certainly not informed when it handed down its order of December 5, 2014. On February 9, 2015, at his examination on affidavit, the Executive Director explained, in this regard:
[Translation]
And because of the submissions made on behalf of Justice Girouard, I knew that questions could be raised about the admission or exclusion of the exhibits. And I mentioned it, Chief Justice Blanchard thought that it was good to mention it, so that if anyone had difficulties with these—with the nature of the report and the enclosures, well! he could take the necessary steps to object to them.
[36] Moreover, not only were the report of the Review Panel of February 6, 2014, and the video in question sent by the Executive Director, on June 18, 2014, to the members of the Inquiry Committee on that occasion, but also [Translation] “its appendices” (paragraph 48 of the affidavit of February 6, 2015, of the Executive Director of the CJC and paragraph 60 of the written submissions of the CJC dated February 6, 2015).
[37] At the same time, on June 18, 2014, the Executive Director of the CJC sent [Translation] “the same information to the independent counsel.” In this latter case, however, no “matter” is involved since counsel for the applicant and counsel for the respondent agree that the Review Panel’s decision and the information in the CJC’s record must be disclosed to the independent counsel so that she can prepare the advance notice that must be given to the judge under subsection 5(2) of the By-laws. This is indeed what counsel for both parties explained verbally to the Court on November 20, 2013, at the hearing of the motions to strike. We shall come back to this question further on, in our analysis of the third criterion of paragraph 399(2)(a) of the Rules.
[38] Thereafter freed of his duties as Vice-Chairperson of the CJC, Chief Justice Blanchard passed away on June 27, 2014. Since then, questions concerning the management of the applicant’s file come under the purview of the Chairperson of the CJC, the Honourable Michael MacDonald, Chief Justice of Nova Scotia.
[39] On July 9, 2014, the applicant served and filed a notice of application for judicial review, in T-1557-14, of [Translation] “the decision of June 18, 2014, of the Canadian Judicial Council. . .to reveal the composition of the Inquiry Committee. . .[and that] indicates that its mandate is to [Translation] ‘review the matter as a whole’” (the second notice of application).
[40] According to the entries recorded inT-646-14 and T-1557-14, the following instruction of Chief Justice Crampton dated March 13, 2014, was communicated and transmitted by fax to the parties’ counsel on July 16, 2014:
[Translation]
Given my duties as member of the Inquiry Committee of the Canadian Judicial Council that will examine the conduct of the Honourable Michel Girouard, I am assigning to Justice Simon Noël all the tasks of the administration (including summons) of the file or files involving Justice Girouard and the inquiry regarding him, in accordance with section 6(2)(a) of the Federal Courts Act.
[41] On July 31, 2014, the Registrar of judicial conduct at the CJC filed with the Court, under Rule 318, a certified copy of the [Translation] “documents in possession of the Council,” with the following caveat:
[Translation]
The application for judicial review is not precise as far as the impugned “decision” is concerned. In the Council’s opinion, no decision was made on June 18, 2014. In so far as the application for judicial review is valid and deals with the decision of the Vice-Chairperson of the Council to appoint the members of the Inquiry Committee and an independent counsel within the meaning of subsection 1.1(2) of the Canadian Judicial Council Inquiries and Investigations By-laws, I am delivering to you, in accordance with section 318, the documents pertaining to this decision.
[42] In fact, the certified record in T-1557-14 includes the letter dated February 12, 2014, sent by the Executive Director to the Minister of Justice, the letter dated April 9, 2014 sent by the Minister of Justice to the Executive Director (Exhibit ANS-3), the press release of June 18, 2014, and the letter of June 27, 2014, sent by the Executive Director to counsel for the applicant, which states [Translation]: “[t]he decisions that are referred to in the Council’s press release have been rendered in accordance with the provisions of the Canadian Judicial Council Inquiries and Investigations By-laws.”
[43] On August 12, 2014, the respondent served and filed a motion to strike the second notice of application, alleging that no [Translation] “decision” had yet been made by the Inquiry Committee and that the applicant could not challenge the legality of the press release of June 18, 2014 (the second motion to strike).
[44] On the instructions of Justice Noël, the two motions to strike were heard by the Court on November 20, 2014. As mentioned above, they were allowed on December 5, 2014. No appeal has been lodged in this case or in T-1557-14. The two orders are thus final.
[45] We now arrive at the incident that triggered this motion to set aside. On December 11, 2014, Doug Mitchell (counsel for the Inquiry Committee) sent to the independent counsel and to counsel for the applicant a letter that reads as follow:
[Translation]
I am writing to you on behalf of the Inquiry Committee after receiving and reading the decision of Justice Martineau dated December 5, 2014.
At paragraph 45 of his decision, Justice Martineau states:
“It is furthermore impossible at this stage to foresee the course of events. Could it be that allegations previously considered by the Review Panel will not be subject to the inquiry or will be withdrawn? I simply do not know. Based on explanations by the representative for the Attorney General at the hearing, the Court understands that it will be up to the independent counsel to review the file and determine for herself “impartially and in accordance with the public interest” what specific evidence will be adduced at the hearing (subsections 3(3) and 5(2) of the By-laws). The Court must also assume at this stage that nothing in the file (Exhibits D-3 to D-7) was submitted to the Inquiry Committee. By this reasoning, the investigation previously conducted by the Review Panel, although it may have been inquisitorial, did not compromise the applicant’s fundamental right to defend himself, as part of an adversarial process before the Inquiry Committee involving the particular facts that may be alleged against him.”
The Committee would like to point out to you that what Justice Martineau said in paragraph 45 is not accurate, since on June 18, 2014, the Vice-Chairperson of the Judicial Conduct Committee of the Canadian Judicial Council sent to each member of the Inquiry Committee the report of the Review Panel in this matter, together with the supporting evidence.
Furthermore, the Committee would like to inform you that one member of the Committee has examined the decision of the Review Panel, but not the supporting evidence, that one member has examined all the documentation submitted by the Canadian Judicial Council, and that no member has examined the elements of the documentation.
The Committee wishes to advise you that the Inquiry Committee is planning to rely solely on the evidence that it deems admissible at the hearing to settle all the issues required to perform its duties. Moreover, as you know, judges are, by the nature of their duties, able to ignore evidence that they have heard in certain contexts, for example in a voir dire, or that they will declare inadmissible, either during the hearing or in the final judgment.
Sincerely, [Emphasis added.]
[46] The contents of the letter of December 11, 2014, of counsel for the Inquiry Committee constitutes a “matter.” I am satisfied that up to the date of this last communication, the applicant did not have knowledge of the fact that [Translation] “. . .on June 18, 2014, the Vice-Chairperson of the judicial conduct committee of the Canadian Judicial Council sent to each member of the Inquiry Committee the Review Panel’s report in this matter, together with the supporting evidence.” Nor could the applicant have known, as counsel for the Inquiry Committee points out, “. . .that one member of the Committee examined the decision of the Review Panel, but not the supporting evidence, that one member examined all the documentation submitted by the Canadian Judicial Council, and that no member examined the elements of the documentation.”
[47] Finally, I am also satisfied that the facts related at paragraphs 28 and 46 of the affidavit of February 6, 2015, of the Executive Director of the CJC are a “matter,” namely: (1) after the applicant sent to the outside counsel on August 14, 2013, through his counsel, written submissions concerning the summary report, the outside counsel [Translation] “produced a confidential legal report to the attention of Chief Justice Blanchard" (confidential report); (2) [Translation] “[t]he confidential report of the outside counsel in this case was not shared with the Review Panel, the Inquiry Committee, the independent counsel or anyone other than Chief Justice Blanchard;” and (3) [Translation] “[o]nly the summary document was shared.” It is only recently that the applicant has come to know all this “matter.”
II. The “matter” must not be one which was discoverable prior to the making of the order by the exercise of due diligence. [48] All the “matter” alleged by the applicant concerns information that was under the exclusive control of the CJC, so that the applicant was not in a position where it would have been possible for him to discover it before the order of December 5, 2014.
[49] On the one hand, the Executive Director, in his examination on affidavit, which took place on February 9, 2015, acknowledged that the “confidential report” of the outside counsel used by the Vice-Chairperson of the CJC [Translation] “was not revealed [to the applicant]” and that [Translation] “the very existence of the legal opinion was not revealed.” On the other hand, on November 20, 2014, when the respondent’s two motions to strike were argued, nothing led the applicant to think that the Executive Director of the CJC and/or the late Edmond Blanchard could have taken the initiative, on June 18, 2014, to communicate any information whatsoever to the members of the Inquiry Committee.
[50] I am therefore satisfied that the “matter” referred to by counsel for the Inquiry Committee in his letter of December 11, 2014, could not have been discovered by the applicant, prior to the order of December 5, 2014, by the exercise of due diligence. The applicant satisfies the second jurisprudential condition.
III. The “matter” must be something which would have a determining influence on the decision in question. [51] On February 24, 2015, counsel for the applicant resumed before me a line of argument that is not really new. As evidence of this, I note that in the notice of application for judicial review that had been filed with the Court on July 9, 2014, under the heading [Translation] “jurisdictional contradiction,” the applicant alleges, at paragraphs 18 to 21:
[Translation]
After establishing that the Inquiry Committee shall determine the scope of its inquiry, the decision of June 18, 2014, indicates that its mandate is “to review the matter as a whole;”
The applicant submits that there is nothing, at this stage, that can be “reviewed;”
Indeed, the Inquiry Committee must commence its inquiry, as the case may be, without having read any facts other than those that will eventually be brought to its attention;
This tight separation is indeed crystallized by the existence of prevention measures designed to ensure that the independent counsel, to assist the Inquiry Committee, does not read any facts on the record other than those that are legally led in evidence, as the case may be. These preventive measures appear in Exhibit P-3, which will be produced before the Tribunal after a request has been submitted to seal, keep confidential, not disclose and not publish this document. It is thus contrary to the legislative and regulatory provisions that the Inquiry Committee be called upon “to review the matter as a whole” while there is no jurisdictional framework, no evidence and, for the moment, nothing that can be “reviewed.”
[52] According to the applicant, the “matter” disclosed by counsel for the Inquiry Committee and the Executive Director of the CJC shows that the principle of separation that frames each step in the complaints process at the CJC has not been observed. Section 9.10 of the Procedures clearly provides that once the report has been written, the members of the Review Panel are functus officio, precisely to avoid having the knowledge acquired during the review pollute the inquiry. No rule provides that the report of the Review Panel must be transmitted to the Inquiry Committee, and in so doing, the CJC has irremediably influenced the course of the inquiry. Now, the Inquiry Committee received documents and information coming from the Review Panel even before the independent counsel prepared, and sent to the applicant, the advance notice required under the By-laws. Indeed, at the time of the hearing of the present motion to set aside, the allegations concerning which the Inquiry Committee will conduct an inquiry had yet to be specified by the independent counsel in a [Translation] “detailed final notice of allegations” that she intended to send to the applicant on March 13, 2015. The applicant alleges that this creates a situation of irremediable lack of procedural fairness.
[53] Furthermore, several documents and a video, whose admissibility has not been the subject of any debate about filing them as evidence, have already been reviewed by the members of the Inquiry Committee. Eight months have elapsed since June 18, 2014. According to the applicant, this clearly indicates that the inquiry began in his absence, which infringes his fundamental right to a full answer and defence.
[54] At the hearing, counsel for the applicant, in support of the motion for an immediate stay of the proceedings, alleged the apparent bias of the current members of the Inquiry Committee in regard to some of the questions at issue. The applicant refers to the letter of December 11, 2014, which was sent to them in the name of the Inquiry Committee. If we are to believe counsel for the Inquiry Committee: [Translation] “judges are, by the nature of their duties, able to ignore evidence that they have heard in certain contexts, for example in a voir dire, or that they will declare inadmissible, either during the hearing or in the final judgment.” Counsel for the applicant concede that this is perhaps true, but not before the debate has taken place in proper form before the tribunal! There is the rub precisely, since the declaration of December 11, 2014, seems to indicate that the members of the Inquiry Committee already considered the issue of appearances of bias, in the absence of the applicant, and decided in advance that they would not recuse themselves. This constitutes a clear violation of procedural fairness. Furthermore, according to the letter dated December 11, 2014, it is impossible to know which specific elements of the documentation or of the Review Panel’s report have been considered by the Inquiry Committee since then.
[55]