Canada (Judicial Council) v. Girouard

Canada (Judicial Council) v. Girouard
Court (s) Database
Federal Court of Appeal Decisions
Date
2019-05-16
Neutral citation
2019 FCA 148
File numbers
A-269-18
Notes
A correction was made on December 11, 2019.
Reported Decision
Decision Content
Date: 20190516
Docket: A-269-18
Citation: 2019 FCA 148
[ENGLISH TRANSLATION]
CORAM:
PELLETIER J.A.
DE MONTIGNY J.A.
GLEASON J.A.
BETWEEN:
CANADIAN JUDICIAL COUNCIL
Appellant
and
THE HONOURABLE MICHEL GIROUARD, THE ATTORNEY GENERAL OF CANADA, THE ATTORNEY GENERAL OF QUEBEC
Respondents
and
THE CANADIAN SUPERIOR COURTS JUDGES ASSOCIATION,
THE HONOURABLE PATRICK SMITH
Interveners
Heard at Ottawa, Ontario, on May 3, 2019.
Judgment delivered at Ottawa, Ontario, on May 16, 2019.
REASONS FOR JUDGMENT OF THE COURT BY:
THE COURT
Date: 20190516
Docket: A-269-18
Citation: 2019 FCA 148
CORAM:
PELLETIER J.A.
DE MONTIGNY J.A.
GLEASON J.A.
BETWEEN:
CANADIAN JUDICIAL COUNCIL
Appellant
and
THE HONOURABLE MICHEL GIROUARD, THE ATTORNEY GENERAL OF CANADA, THE ATTORNEY GENERAL OF QUEBEC
Respondents
and
THE CANADIAN SUPERIOR COURTS JUDGES ASSOCIATION,
THE HONOURABLE PATRICK SMITH
Interveners
REASONS FOR JUDGMENT OF THE COURT
I. OVERVIEW
[1] The Canadian Judicial Council (the Council or the appellant) is appealing the Federal Court judgment (the Honourable Justice Noël), rendered on August 29, 2018 (the Decision), dismissing its motions to strike the applications for judicial review filed by the Honourable Justice Michel Girouard (Justice Girouard). The underlying applications cover various decisions made by the Council during inquiries conducted under sections 63 et seq. of the Judges Act, R.S.C. 1985, c. J‑1 (the Act), regarding Justice Girouard’s conduct, particularly the Council’s report recommending his removal to the Minister of Justice (the Minister).
[2] The Council essentially argues that its reports and recommendations, as well as decisions made in the course of an inquiry by an inquiry committee, are not subject to judicial review under section 18.1 of the Federal Courts Act, R.S.C. 1985, c. F‑7 (FCA). It claims that it simply is not a “federal board, commission or other tribunal” within the meaning of section 2 of that statute.
[3] For the reasons set out below, the appeal will be dismissed, without costs.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. General legal framework
[4] Subsection 99(1) of the Constitution Act, 1867, 30 & 31 Victoria, c. 3 (U.K.), (CA 1867) provides that 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. In 1971, Parliament created the Council through amendments to the Act and conferred on it the power to investigate complaints against federally appointed judges.
[5] Section 63 of the Act provides two circumstances in which the Council can investigate the conduct of a federally appointed judge: at the request of the Minister of Justice or the attorney general of a province (subsection 63(1) of the Act), or following receipt of any complaint or allegation made in respect of a judge of a superior court (subsection 63(2) of the Act). The procedure differs somewhat depending on the subsection under which the process is initiated.
[6] In both cases, an inquiry committee, composed of an uneven number of members, can be called to look into the conduct of a given judge. If the committee includes members of the bar of a province appointed by the Minister, the majority of the members of the committee must be Council members (see subsection 63(3) of the Act and section 3 of the Canadian Judicial Council Inquiries and Investigations By‑laws, 2015, SOR/2015‑203 (the By‑laws)). The powers of an inquiry committee are set out in subsection 63(4) of the Act. The inquiry committee hears the evidence concerning the complaints or allegations and, under section 8 of the By‑laws, submits to the Council a report in which it sets out the findings of the inquiry. This report contains findings of fact and conclusions of the committee as to whether or not a recommendation should be made for the judge’s removal.
[7] The Council then examines the allegations and makes a decision on their merit. In order to perform this task, sections 10 and 11 of the By‑laws provide that the Council shall be made up of at least 17 members of the Council who did not participate in the inquiry process and who are not of the same court as that of the judge who is the subject of the inquiry or investigation. It is then up to the Committee to determine whether the judge in respect of whom an inquiry or investigation has been made has become incapacitated or disabled from the due execution of the office of judge. In that respect, it should be noted that the Chairperson of the Council, that is, the Chief Justice of Canada, does not participate in deliberations in matters involving the conduct of judges.
[8] Section 65 of the Act states that, after an inquiry or investigation has been completed, the Council shall report its conclusions and submit the record of the inquiry or investigation to the Minister. The Council’s inquiry report contains a recommendation as to whether or not the judge should be removed from office.
B. Factual background
[9] Justice Girouard was appointed to the Superior Court of Quebec on September 30, 2010.
[10] On November 30, 2012, a complaint was filed with the Council after a video was sent by the Director of Criminal and Penal Prosecutions to the Honourable François Rolland, then Chief Justice of the Superior Court. According to the complaint, the video showed a transaction involving an illicit substance between the respondent Girouard, then a lawyer, and one of his clients at the time.
[11] In October 2013, the Council established a review committee to consider the complaint and have a preliminary inquiry conducted by outside counsel. The review committee concluded that, if the allegations were substantiated, they would be serious enough to warrant the removal of the judge.
[12] In February 2014, the Council constituted, in accordance with subsection 63(3) of the Act, an inquiry committee responsible for considering the complaint received. The first inquiry committee said it was unable to conclude that the exchange captured on video involved an illicit substance despite the fact that a majority of its members questioned the reliability and credibility of Justice Girouard’s testimony. The committee therefore rejected all of the allegations against him. The Council subsequently accepted the recommendations of the first inquiry committee in that regard.
[13] In June 2016, the Minister and the Minister of Justice of Quebec filed a joint complaint to the Council regarding Justice Girouard’s conduct in the first disciplinary proceeding. This complaint triggered the mandatory inquiry under subsection 63(1) of the Act. It also consequently led to the establishment of a new inquiry committee, as stipulated in subsection 63(3) of the Act.
[14] On November 6, 2017, the second inquiry committee submitted its report. It concluded that Justice Girouard had become incapacitated or disabled from the due execution of the office of judge by reason of the misconduct of which he had been found guilty during the inquiry of the first inquiry committee.
[15] On February 20, 2018, 20 of the 23 Council judges adopted the findings of the second inquiry committee and concluded that Justice Girouard had become incapacitated or disabled from the due execution of the office of judge. The three dissenting judges suggested that he not be removed as they were of the opinion that he did not have a fair hearing to the extent that some of the Council members could not understand and evaluate the entire record by reason of their unilingualism.
[16] Justice Girouard applied for judicial review of the recommendation made by the majority of the Council. This proceeding was in addition to a number of other applications filed over the course of the two inquiries against various decisions made by inquiry committees and the decision of the two Ministers of Justice to file a complaint with the Council.
[17] In response, the Council filed a motion to strike the applications for judicial review in question on the ground that the Federal Court does not have jurisdiction to hear the case under sections 2 and 18 of the FCA since the Council is not a “federal board, commission or other tribunal”.
III. FEDERAL COURT DECISION
[18] On August 29, 2018, Federal Court Justice Simon Noël dismissed the Council’s motions to strike. After his analysis, he reached the conclusion that the Council and its inquiry committee are federal boards, commissions or other tribunals under section 2 of the FCA (Decision at paras. 61–111). According to him, the Council’s investigative powers do not derive from the Constitution, but from the Act (at para. 81). In addition, he stated that these powers belong to the Council as an institution, not to the chief justices individually because of their status (Ibid.). He also rejected the idea that paragraphs 63(4)(a) and (b) of the Act grant the Council superior court status. In his opinion, the purpose of these paragraphs is only to recognize the immunity of the Council and the inquiry judges, to grant them powers to summon witnesses and compel them to give evidence and to grant to the judges subject to inquiry protection with respect to their testimony (at para. 156). The judge also rejected the Council’s claims that the Council’s reports and recommendations are not reviewable decisions under section 18 of the FCA (at para. 172).
IV. ISSUES
[19] The following issues arise in this appeal:
Are the Council and its inquiry committees federal boards, commissions or other tribunals subject to the Federal Court’s jurisdiction with respect to judicial review?
Are the Council’s reports and recommendations reviewable decisions?
[20] The Council’s notice of appeal and memorandum of fact and law raise another issue, that is, a reasonable apprehension of bias on the part of the judge. The Council did not mention this issue during the hearing of the appeal and did not rely on its memorandum on this matter. There was no mention of this issue by counsel for Justice Girouard or the Attorney General of Canada (AGC). In the circumstances, this Court considers this ground of appeal to be abandoned. Moreover, nothing in the appellant’s written submissions rebutted the strong presumption of the judge’s impartiality, as established in Wewaykum Indian Band v. Canada, 2003 SCC 45 at para. 59.
[21] The two issues will be dealt with in turn.
V. PRELIMINARY ISSUES
[22] Before dealing with the merits, there are two preliminary issues to examine. Two motions were made at the beginning of the appeal hearing. The first, filed by Justice Girouard, requests the addition to the appeal book of a copy of the application for judicial review amended with the permission of Justice Simon Noël as the case management judge. As the other parties did not object, the motion was granted from the bench.
[23] However, there was no unanimity on the second motion. In that motion, the appellant asked the Court to grant it leave to present new evidence on a question of fact under section 351 of the Federal Court Rules, SOR/98‑106. The evidence in question is the minutes of the annual conference of the chief justices of Canada, which took place when Parliament was considering the amendments to the Act that established the Council. The minutes reveal that during that meeting, the Honourable Justice Fauteux, then Chief Justice of Canada, apparently explained that subsection 32(4), now subsection 63(4) of the Act, was amended to prevent the possibility of the Council being subject to the Federal Court’s power of review.
[24] The appellant argues that that evidence meets the criteria applicable to the admissibility of new evidence under Rule 351, as set out in Brace v. Canada, 2014 FCA 92 at para. 11:
(1) The evidence should not be admitted if, by due diligence, it could have been adduced at trial. . . .
(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial. . . .
(3) The evidence must be credible in the sense that it is reasonably capable of belief. . . .
(4) The evidence must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result. . . .
(See also Shire Canada Inc. v. Apotex Inc., 2011 FCA 10.)
[25] Since all of these criteria must be met, the failure to meet one of them is enough for the motion to be dismissed.
[26] On the basis of this evidence, the appellant wants to show that the intention of Parliament, when it amended subsection 63(4) of the Act to include the expression “shall be deemed to be a superior court”, was to insulate the appellant from the Federal Court’s jurisdiction as concerns judicial review.
[27] Yet, as the judge aptly noted in paragraphs 138 and 140 of his reasons, a public servant from the Department of Justice who testified before the parliamentary committee during the debates regarding this amendment explained that the purpose of amending the bill to insert the phrase “shall be deemed to be a superior court” was “[t]o give the judges . . . the usual judicial protection that they would need”, that is, immunity from prosecution (Standing Committee on Justice and Legal Affairs, House of Commons, Minutes of Proceedings and Evidence, 28th Parliament, 3rd Session, Vol. 2, No. 27 (16 June 1971) at p. 27:27). The new evidence that the appellant wishes to present contradicts this testimony. First, the appellant did not demonstrate that the minutes are authentic and accurately reflect the comments of Justice Fauteux; second, the comments attributed to Justice Fauteux would only be his opinion and can in no way be considered Parliament’s intent. It is therefore difficult to say that this new evidence could “be expected to have affected the result”.
[28] It should also be noted that the document in question contradicts the main argument put forward by the appellant before this Court, that is, that the Council’s members derive their immunity from the Constitution. In fact, it suggests instead that in the absence of the current subsection 63(4) of the Act, the Council’s decisions would indeed be subject to the supervisory authority of the Federal Court. It is therefore difficult to conclude, as required by the case law, that if believed, the new evidence could be expected to have affected the result in favour of the appellant.
[29] In short, the criteria for the admission of the new evidence were not met. The appellant’s motion will therefore be dismissed.
VI. STANDARD OF REVIEW
[30] The issue of whether the Federal Court had jurisdiction to rule on the applications for judicial review in dispute is a question of law that must be reviewed on a standard of correctness (Canada (Governor General in Council) v. Mikisew Cree First Nation, 2016 FCA 311 at para. 18 (Mikisew FCA), aff’d by 2018 SCC 40; Spike Marks Inc. v. Canada (Attorney General), 2008 FCA 406 at para. 11, leave to appeal to the S.C.C. refused, April 30, 2009 (33023); Housen v. Nikolaisen, 2002 SCC 33 at para. 8).
VII. ANALYSIS
A. Is the Council a federal board, commission or other tribunal subject to the Federal Court’s jurisdiction with respect to judicial review?
(1) General legal framework
[31] The Federal Court’s jurisdiction is not inherent; it is statutory. It follows that, in order for the Court to hear and decide a case, Parliament must have conferred on it the necessary jurisdiction (Canada (Attorney General) v. TeleZone Inc., 2010 SCC 62 at para. 43 (TeleZone)). By adopting section 18 of the FCA, Parliament granted the Federal Court exclusive jurisdiction to review the actions taken or decisions made by a “federal board, commission or other tribunal”, except for those in respect of which the Federal Court of Appeal has express jurisdiction under section 28. Section 18.1 of the FCA sets out the scope of the remedies available on an application for judicial review by the Attorney General or by an interested party.
[32] The term “federal board, commission or other tribunal” generally means a “body exercising statutory powers or powers under an order made pursuant to a prerogative of the Crown” (Mikisew Cree First Nation v. Canada (Governor General in Council), 2018 SCC 40 at para. 18 (Mikisew SCC)). More specifically, section 2 of the FCA defines this notion as follows:
2 (1) In this Act,
federal board, commission or other tribunal means any body, person or persons having, exercising or purporting to exercise jurisdiction or powers conferred by or under an Act of Parliament or by or under an order made pursuant to a prerogative of the Crown, other than the Tax Court of Canada or any of its judges, any such body constituted or established by or under a law of a province or any such person or persons appointed under or in accordance with a law of a province or under section 96 of the Constitution Act, 1867;
2 (1) Les définitions qui suivent s’appliquent à la présente loi.
office fédéral Conseil, bureau, commission ou autre organisme, ou personne ou groupe de personnes, ayant, exerçant ou censé exercer une compétence ou des pouvoirs prévus par une loi fédérale ou par une ordonnance prise en vertu d’une prérogative royale, à l’exclusion de la Cour canadienne de l’impôt et ses juges, d’un organisme constitué sous le régime d’une loi provinciale ou d’une personne ou d’un groupe de personnes nommées aux termes d’une loi provinciale ou de l’article 96 de la Loi constitutionnelle de 1867.
[33] With respect to this definition, the Supreme Court of Canada stated that it is “sweeping” and that it “goes well beyond what are usually thought of as ‘boards and commissions’” (Telezone at paras. 3 and 50).
[34] To determine whether a body is a “federal board, commission or other tribunal” within the meaning of section 2 of the FCA, this Court developed a two‑step test. According to Anisman v. Canada (Border Services Agency), 2010 FCA 52 (Anisman), the Court must determine “what jurisdiction or power” the body seeks to exercise and then “what is the source or the origin” of that jurisdiction or power (at para. 29; Mikisew SCC at para. 109).
[35] It should also be noted that Parliament amended the definition of “federal board, commission or other tribunal” several times to explicitly exclude bodies that could otherwise be included. This is notably the case with the Senate, the House of Commons, any committee or member of either House, and the ethics commissioners of these institutions with respect to the exercise of their powers pursuant to the Parliament of Canada Act, R.S.C. 1985, c. P‑1 (see subsection 2(2) of the FCA).
(2) Discussion
a) Anisman criteria
[36] The Federal Court judge set out the Anisman test in paragraph 96 of his reasons. Examining the statutory scheme at issue in light of the criteria established in the case law, he concluded that the Council and its committees exercise powers that are investigative in nature (at para. 97), similar to those of a commissioner of inquiry under the Inquiries Act, R.S.C. 1985, c. I‑11 (Inquiries Act) (at para. 83). He also found that the source of these powers can only be found in paragraphs 60(2)(c) and (d) and subsections 63(1) and 63(4) of the Act, that is, an “Act of Parliament” within the meaning of section 2 of the FCA (at para. 97).
[37] The appellant is challenging the judge’s conclusions in relation to (i) the source of the powers exercised and (ii) the nature of those powers. These criticisms will be considered in turn. As the “source” of the powers is the “principal determinant” of whether a decision‑maker falls within the definition of a “federal board, commission or other tribunal”, this question will be dealt with first (Mikisew SCC at para. 109; Donald J.M. Brown and the Honourable John M. Evans, Judicial Review of Administrative Action in Canada, looseleaf, (Toronto: Thomson Reuters Canada Limited, 2018) at pp. 2‑50, 2‑51).
(i) The source of powers
[38] Relying on Ruffo v. Conseil de la magistrature, [1995] 4 S.C.R. 267 (Ruffo), the appellant argues that the powers in dispute here are “inherent” in its members’ exercise of their functions. According to the appellant, the result is that these powers are constitutional and that they are therefore not conferred by or under an “Act of Parliament” within the meaning of section 2 of the FCA.
[39] These arguments do not withstand scrutiny.
[40] The judge was quite correct to conclude that the only source of the powers of the Council and its committees is the Act, notably paragraphs 60(2)(c) and (d) and subsections 63(1) and 63(4). Had the Act not been adopted by Parliament, the Council would simply not exist. Furthermore, it should be noted that it has only been in existence since 1971; before that date, judicial discipline was entrusted to ad hoc commissions of inquiry established by the Governor in Council. In addition, there is every reason to believe that if the roles and composition of the Council were to be modified, it would be up to Parliament and not the Council itself to make such changes through legislation. The only power granted to the Council in that respect, under subsection 61(3) of the Act, is that of making by‑laws to regulate the procedure in regard to its meetings and its inquiries and investigations.
[41] As rightly noted by the respondent the AGC, the Anisman analysis implies that this Court must focus on the source of the powers conferred on the body that exercises them—in this case, the Council, not its members. In any event, even if the powers conferred on chief justices were to be taken into account, the same conclusion applies in this case.
[42] The appellant’s argument that its powers are constitutional since they are inherent to the office of chief justice is based on the following passage from Ruffo:
[57] . . . It must not be forgotten that a large part of the chief judge’s role in maintaining high‑quality justice was defined gradually over the years, in the same way as judicial precedents. Many aspects of this role derived from judicial tradition without being transferred to legislation. Therefore, the fact that there was no explicit legislation on ethics until quite recently does not mean we can doubt the continuity that marked the development of the chief judge’s responsibilities in this regard. It accordingly cannot be argued that the supervisory powers conferred on the chief judge by . . . s. 96 [of the Courts of Justice Act, R.S.Q., c T‑16 then in force] were assigned spontaneously by the legislature; in my view, they must rather be seen as the expression of a reality that is consistent with general practice and gradual developments over time.
[58] This opinion is shared by the American author . . . Geyh, who asserts that the chief judge’s supervisory powers over ethics are inherent in the exercise of his or her functions and need not be conferred by specific statutory provisions . . . . I agree.
[Emphasis in original.]
[43] However, to understand its real import, this excerpt from Ruffo should be put in its original context. Those comments were made by Justice Gonthier, on behalf of the majority, in response to the argument that the chief judge of the Court of Québec should not be allowed to lay a complaint with the Conseil de la magistrature against a judge of his court because it would go against the principles of judicial impartiality and independence. It is in this very specific context that the comments reproduced above were made and should be understood. This is clear from the paragraph that follows:
[59] We must recognize that the chief judge, as primus inter pares in the court, the efficient operation of which he or she oversees in all other respects, is in a preferred position to ensure compliance with judicial ethics. First, because of the chief judge’s role as co‑ordinator, events that may raise ethical issues are more readily brought to his or her attention. As well, because of the chief judge’s status, he or she is often the best situated to deal with such delicate matters, thereby relieving the other judges of the court of the difficult task of laying a complaint against one of their colleagues where necessary. In short, the power to lay a complaint is an intrinsic part of the chief judge’s responsibility in this area and it would not be fitting for the chief judge to act through someone else, whether a judge or a person outside the judiciary, to fulfil his or her obligations in this regard.
[Emphasis added.]
[44] What we understand from this passage is that the only inherent power of a chief justice identified by the Supreme Court in Ruffo with respect to judicial discipline is that of laying a complaint against one of the judges under his or her supervision. There is nothing to suggest that this power should necessarily include that of holding an inquiry into such a complaint. Moreover, when chief justices act in such a way, they do so by reason of their role as coordinators of the court in their division. In other words, if this power is “inherent,” it is so with respect to their functions as chief justices, which are essentially administrative functions (Canada (Minister of Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. 391, at para. 99), not their functions as judges (if that were the case, every judge would be granted this power). Nor does that decision mention that a chief justice would have such power in respect of judges other than those of his or her court. The Council’s powers are not limited in this manner.
[45] In Ruffo, the Court never cited any “constitutional origin” for the functions of chief justices, contrary to the appellant’s arguments in paragraph 44 of its memorandum. It is also interesting to note that at no point in that decision does the Court refer to section 96 of the CA 1867. In short, the appellant reads into the Court’s decision in Ruffo something that it does not say.
[46] In summary, the Council’s investigative power is strictly statutory. This means that if the Act were to be repealed, the Council and, certainly, the chief justices would not be empowered to conduct inquiries or investigations, summon witnesses and compel them to give evidence during these investigations or inquiries. The only procedure provided for by the Constitution to remove a superior court judge from office is that set out in subsection 99(1) of the CA 1867.
(ii) The nature of powers
[47] With regard to the second criterion, the appellant claims that the powers and jurisdiction of its members are judicial in nature. In that respect, the appellant argues that the exercise of those powers is not subject to judicial review. In support of this argument, the appellant draws this Court’s attention to various passages from, notably, Therrien (Re), 2001 SCC 35 (Therrien) and Valente v. The Queen, [1985] 2 S.C.R. 673 (Valente). It also states that the motions judge was wrong to distinguish this case from Minister of Indian Affairs and Northern Development v. Ranville et al. [1982] 2 S.C.R. 518 (Ranville) on the sole ground that the Council’s powers are exercised collectively. The appellant further argues that the fact that Council members can have substitutes and the fact that lawyers can sit on inquiry committees established by the Council is in no way determinative.
[48] These arguments must be rejected.
(iii) Inquisitorial powers
[49] The judge was right to conclude that the power exercised by the Council “over the conduct of judges and certain public servants holding office during good behaviour is investigative in nature”, that it is a “power of inquiry” (Decision at para. 97). Paragraph 60(2)(c) of the Act, from which the Council derives its jurisdiction in this case, very clearly grants it the power to “make the inquiries and the investigation of complaints or allegations described in section 63 [of the Act]”. This power is circumscribed by sections 63 and 64, which are found in the section of the Act entitled “Inquiries concerning Judges”. As Justice Girouard correctly notes, the subheadings for the applicable subsections (“Investigations”, “Inquiries”, “Powers of Council or Inquiry Committee”, etc.) also speak to the nature of the powers granted to the Council and its committees (Justice Girouard’s Memorandum of Fact and Law at para. 39).
[50] As the judge points out in paragraph 83 of his decision, this interpretation is also supported by a report from the Council itself in March 2014, which states that the investigative powers in question are “similar” to those of a commissioner of inquiry under the Inquiries Act (Canadian Judicial Council, Review of the Judicial Conduct Process of the Canadian Judicial Council: Background Paper, Ottawa, Canada, 2014, at p. 47). The report states the following:
. . . [T]he statutory framework suggests that the [Council]’s judicial conduct review process is inquisitorial. Under the [Act], an Inquiry Committee is constituted to inquire into whether a federally appointed judge has become incapacitated or disabled in the due execution of the office of a judge. The Inquiry Committee has investigative powers under the [Act], including the power to summon witnesses and to require them to testify under oath and to produce documents, and the power to enforce the attendance of witnesses as is vested in a superior court. Those powers are similar to those of a commissioner of inquiry under the Inquiries Act. An Inquiry Committee has no explicit power to impose sanctions. . . . [Emphasis added; footnotes omitted.]
[51] The distinction that should be drawn between “investigative” powers and “judicial” powers was discussed in Beno v. Canada (Commissioner and Chairperson, Commission of Inquiry into the Deployment of Canadian Forces to Somalia), [1997] 2 F.C. 527 (C.A.). Although made in a different context, that is, that of determining which criterion should apply when assessing allegations of bias in the exercise of either of these powers, this Court’s comments in this regard remain relevant:
. . . A public inquiry is not equivalent to a civil or criminal trial. In a trial, the judge sits as an adjudicator, and it is the responsibility of the parties alone to present the evidence. In an inquiry, the commissioners are endowed with wide‑ranging investigative powers to fulfil their investigative mandate. The rules of evidence and procedure are therefore considerably less strict for an inquiry than for a court. Judges determine rights as between parties; the Commission can only “inquire” and “report” . . . . Judges may impose monetary or penal sanctions; the only potential consequence of an adverse finding by the Somalia Inquiry is that reputations could be tarnished . . . . [at p. 539; references omitted.]
[52] In that case, the report of the Commission of Inquiry into the Deployment of Canadian Forces in Somalia, chaired by Justice Létourneau, was considered reviewable.
[53] These statements were reiterated by this Court in Gagliano v. Gomery, 2011 FCA 217. As stated by the Court, “contrary to commissioners whose primary and essential function is to seek out, find and gather evidence”, a judge “only weigh[s] the evidence the parties already have in hand and have submitted to the court to be assessed” (at para. 23). In that case, the Court implicitly found that the report issued by Commissioner Gomery at the conclusion of the Commission of Inquiry into the Sponsorship Program and Advertising Activities was reviewable by the Federal Court pursuant to its power of judicial review.
[54] These comments are consistent with those of Justice Gonthier in Ruffo as to the nature of the proceedings before an inquiry committee established under a previous version of the Courts of Justice Act, C.Q.L.R. c. T‑16 (CJA), which are worth reproducing here:
[72] . . . [T]he Comité’s mandate is to ensure compliance with judicial ethics . . . . For this purpose, it must inquire into the facts to decide whether the Code of Ethics has been breached and recommend the measures that are best able to remedy the situation. . . . [T]he debate that occurs before it does not resemble litigation in an adversarial proceeding; rather, it is intended to be the expression of purely investigative functions marked by an active search for the truth.
[73] In light of this, the actual conduct of the case is the responsibility not of the parties but of the Comité itself, on which the CJA confers a pre‑eminent role in establishing rules of procedure, researching the facts and calling witnesses. Any idea of prosecution is thus structurally excluded. . . . [T]he Comité’s primary role is to search for the truth; this involves not a lis inter partes but a true inquiry in which the Comité, through its own research and that of the complainant and of the judge who is the subject of the complaint, finds out about the situation in order to determine the most appropriate recommendation based on the circumstances of the case before it.
[Emphasis added.]
[55] In addition, Justice Girouard is right to point out that if the powers of the Council and of its committees were actually judicial in nature, Parliament would not have had to confer on them, in subsection 63(4) of the Act, the powers and immunities enjoyed by superior courts. The members, if they acted as judges, would de facto have had these powers and immunities (Justice Girouard’s Memorandum of Fact and Law at para. 44). What is more, the fact that Council members can appoint substitutes (subsection 59(4) of the Act; Decision at para. 86) and that the Minister of Justice can require that an inquiry or investigation be held in public (subsection 63(6) of the Act) is at odds with the idea that they act as judges. The appellant merely stating that the possibility of appointing a substitute is not determinative, without specifying its reasoning (Appellant’s Memorandum of Fact and Law at para. 66) is not enough to establish that the judge erred.
[56] In light of the foregoing, the arguments put forth by the appellant do not show that the judge was mistaken in concluding, as he did, that the role given to the Council by the Act is dissimilar to the role that a judge can play in a court of law. It follows that the appellant’s position that its members’ powers are “judicial in nature” and that, as such, the exercise of such powers is not subject to judicial review must be rejected.
[57] Before ending this discussion, however, it is appropriate to look briefly at the appellant’s arguments based on the Supreme Court’s decisions in Therrien, Valente and Ranville.
(iv) Judicial inquiry
[58] The appellant also relies upon the following passage from the Supreme Court’s decision in Therrien to support its position that its members exercise “judicial” functions:
[39] . . . [T]he procedure for removal of a judge established by the Courts of Justice Act is part of the more general context of the constitutional requirements relating to judicial independence. The fact that the report of the Court of Appeal is judicial and is in the nature of a decision is one of the conditions that ensure the constitutionality of the process for removal of judges provided by the C.J.A.. . . To satisfy [the] guarantee [of security of tenure] as regards the removal of provincial court judges, the following two criteria must be met: (1) the removal must be for cause, which must be specific and be related to the judge’s capacity to perform his or her judicial functions; and (2) there must be a judicial inquiry to establish that such cause exists, at which the judge affected must be afforded an opportunity to be heard . . . . For the province of Quebec, this judicial forum is the Court of Appeal.
[Emphasis in original; references omitted.]
[59] Citing the decision of the Court of Queen’s Bench of Alberta in R. v. Campbell, [1995] 2 W.W.R. 469 (Campbell), the appellant submits that the Court used the term “judicial inquiry” in Therrien and Valente to indicate the need for an inquiry leading to a judge’s removal to be conducted by judges in order to ensure the judicial independence enshrined in paragraph 11(d) of the Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11. According to the appellant, the result is that the powers exercised by these magistrates are necessarily “judicial in nature”. This argument is not convincing.
[60] It should first be noted that the decision in Campbell, cited by the appellant in support of its position that the term “judicial inquiry” necessarily means a proceeding conducted by judges, was overturned by the Supreme Court in Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island), [1997] 3 S.C.R. 3 (Reference). The Supreme Court concluded that, to the extent that the issue dealt with in the passages cited by the appellant, that is, the constitutionality of the provisions governing the removal of judges, was not even before the judge, he could under no circumstances proceed “on his own motion to consider the constitutionality of these provisions, let alone make declarations of invalidity” (at paras. 263–264). This comment undermines not only the authority of the decision in Campbell, but also the decision by the Court of Appeal of Quebec in Québec (Conseil de la magistrature) c. Québec (Commission d’accès à l’information), [2000] R.J.Q. 638 (QCCA) to the extent that it relies, in paragraphs 96–97 of its reasons, on Campbell.
[61] That said, even assuming that the judge in Campbell was right to conclude that by “judicial inquiry” the Supreme Court meant a proceeding conducted by judges, that has no bearing here. There are two reasons for this.
[62] First, it should be noted that Justice Le Dain’s comments on the need for a “judicial inquiry” were made in the context of a discussion on the process for removing provincial court judges, not superior court judges. This is of great importance to the extent that the process for superior court judges is the only one subject to the requirement, set out in section 99 of the CA 1867, that the removal be by the Governor General on address of the Senate and House of Commons. This condition ensures that superior court judges enjoy, writes Justice Le Dain in Valente, “what is generally regarded as the highest degree of security of tenure” possible (at p. 695). Yet, it is precisely the absence of this protection in the provincial removal process that, in the opinion of the judge in Campbell, justified a “judicial inquiry”. According to him:
The emphasis of Le Dain, J.’s, remarks in these passages is upon the judicial inquiry as a significant protection of security of tenure when the executive government is given the power of removal. The inquiry is viewed as a substitute for the protection which for superior court judges is found in s. 100 of the Constitution Act, 1867, pursuant to which such a judge may be removed only upon joint address of the Houses of Parliament. . . . If that issue is not to be considered in the “solemn, cumbersome and publicly visible” process of a proceeding in the Legislative Assembly, and instead final decision is to be taken by a nonjudicial body . . . it is not surprising that the inquiry that Le Dain, J., regarded as a substitute restraint should be a “judicial inquiry”. By this he must have intended an inquiry conducted by persons who themselves enjoy security of tenure as judges . . . .
[Emphasis added.]
[63] If that reasoning were to be accepted, the requirement of a “judicial inquiry” would quite simply not apply to the present dispute, which pertains to the process for removing superior court judges and is subject to section 99 of the CA 1867. The provision makes no mention of a “judicial i