Girouard v. Canada (Attorney General)

Girouard v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2019-10-10
Neutral citation
2019 FC 1282
File numbers
T-409-18
Notes
A correction was made on November 15, 2019.
Reported Decision
Decision Content
Date: 20191010
Docket: T-409-18
Citation: 2019 FC 1282
[UNREVISED CERTIFIED ENGLISH TRANSLATION]
Ottawa, Ontario, October 10, 2019
PRESENT: The Honourable Mr. Justice Paul Rouleau, Deputy Judge
BETWEEN:
THE HONOURABLE MICHEL GIROUARD
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
and
THE ATTORNEY GENERAL OF QUEBEC
Third Party
and
THE CANADIAN JUDICIAL COUNCIL
Intervener
JUDGMENT AND REASONS
I. OVERVIEW
[1] The applicant, the Honourable Justice Michel Girouard (Justice Girouard), seeks an order to invalidate a number of decisions and procedural steps that resulted in a report to the Minister of Justice Canada (the Minister) recommending that the judge be removed from office. For the reasons that follow, I dismiss the application for judicial review.
[2] In 2012, the Canadian Judicial Council (the Council) was asked to conduct an inquiry into the conduct of Justice Girouard when he was still a lawyer. Following that request, the majority of the members of the Inquiry Committee (the first Inquiry Committee) was of the view that the allegations had not been proved but that Justice Girouard had deliberately and intentionally attempted to conceal the truth during the inquiry. The majority therefore recommended that he be removed from office. However, after reviewing the first Inquiry Committee’s report, the Council refused to make such a recommendation to the Minister, stating that the allegation of misconduct on which the majority of the first Inquiry Committee’s recommendation was based had not been put to the judge to allow him to respond and therefore could not be relied on to support such a recommendation for removal.
[3] In 2016, following a joint request from the ministers of Justice of Canada and Quebec (jointly, the Ministers), a second inquiry was launched to investigate said misconduct, and a new inquiry committee was constituted (the second Inquiry Committee). The second Inquiry Committee issued a report concluding that Justice Girouard should be removed from office as a result of his behaviour during the first inquiry. Upon review by a second panel of the Council, a majority made up of 20 judges concluded that Justice Girouard was indeed guilty of misconduct and should therefore be removed from office. Three members of the panel dissented as, in their view, Justice Girouard was not granted a fair hearing.
[4] Justice Girouard now seeks, before the Federal Court, judicial review of the letter from the Ministers calling for an inquiry, the second Inquiry Committee’s constitution and inquiry process, the decision of the second Inquiry Committee on the preliminary motions, and the second panel of the Council’s report recommending his removal. Justice Girouard raises issues of procedural fairness and natural justice, claims that his language rights were not respected and raises constitutional issues.
II. FACTS
A. History of the case
[5] Justice Girouard was appointed to the Superior Court of Québec on September 30, 2010. Prior to that, he was a practising lawyer, primarily in criminal law, for 25 years in Abitibi.
[6] At about the same time as Justice Girouard’s appointment, Mr. Lamontagne, one of the Justice’s former clients, was arrested and charged with drug trafficking and gangsterism following an investigation by the Sûreté du Québec. The video rental store operated by Mr. Lamontagne was the subject of a search on October 6, 2010, during which video recordings were seized.
[7] Then, in 2012, the Director of Criminal and Penal Prosecutions informed the Chief Justice of the Superior Court of Québec, François Rolland, that Justice Girouard had been identified by a former drug trafficker as being one of his clients. A video collected during the investigation captured an interaction between Mr. Lamontagne and Justice Girouard dated September 17, 2010, when the latter was still a lawyer. Justice Girouard was then suspected of having purchased an illicit substance. On November 30, 2012, Chief Justice Rolland therefore asked the Council to investigate Justice Girouard’s conduct.
[8] The video recording referenced in the previous paragraph shows an interaction between Justice Girouard and Mr. Lamontagne. There is no sound. As described by the first Inquiry Committee at page 21 of its report, this is what can be observed:
Time of the recording
Description
12:26:35
Mr. Lamontagne sits alone at his desk. He takes a “Post-it” self-stick note from a pad. The self-stick note seems to be of medium size. Mr. Lamontagne places the self-stick note in front of him on the desk.
12:26:48 to
12:26:57
Mr. Lamontagne takes a small object from the right pocket of his trousers and places it on the “Post-it” self-stick note that he had already placed on his desk.
12:26:58 to
12:27:06
Mr. Lamontagne rolls the small object (three or four times) inside the “Post-it” self-stick note and folds its two ends.
12:27:07 to
12:27:12
Mr. Lamontagne takes the small object rolled inside the “Post-it” self-stick note and places it in the right pocket of his trousers.
12:37:02 to
12:37:59
A woman enters Mr. Lamontagne’s office. She files a document in a cabinet behind Mr. Lamontagne. They have a discussion. She walks out of the surveillance camera’s field of view. She returns, takes a few papers, and then leaves the office. During this time, Mr. Lamontagne remains seated at his desk.
13:01:56
Mr. Girouard enters Mr. Lamontagne’s office.
13:01:57 to
13:02:09
Mr. Girouard searches in the left pocket of his jacket and takes out dollar bills that he immediately slips under Mr. Lamontagne’s desk pad. He also holds in his hands a piece of paper that he places on Mr. Lamontagne’s desk.
13:02:01 to
13:02:08
Mr. Lamontagne searches in the right pocket of his trousers and takes out an object that he hides in his hand.
13:02:08 to
13:02:09
Mr. Lamontagne, hiding the object in his hand, places his hand on the desk and slides his hand toward Mr. Girouard. Mr. Girouard slides his hand forward in the same manner and receives the object from Mr. Lamontagne.
13:02:10
Mr. Lamontagne no longer has the object in his hand.
13:02:11 to
13:02:14
Mr. Lamontagne takes the money that Mr. Girouard had slipped under the desk pad.
[9] When the request for an inquiry was made, the late Chief Justice Blanchard was the Chairperson of the Judicial Conduct Committee. Following an initial review of the matter, he asked outside counsel to conduct a confidential inquiry and, subsequently, decided to constitute a review panel. Following the death of the late Chief Justice Blanchard, Chief Justice MacDonald succeeded him as Chairperson of the Judicial Conduct Committee.
[10] A review panel (Panel) was therefore established by the Council in October 2013 to deal with the request for an inquiry and have outside counsel conduct a preliminary inquiry. Chief Justices Drapeau and Joyal, as well as Justice LeBlanc, were appointed to sit on the Panel. The Review Panel tabled its report on February 6, 2014, in which it recommended that an inquiry committee be constituted.
[11] On June 18, 2014, the Council constituted the first Inquiry Committee to conduct the requested inquiry. Chief Justices Chartier and Crampton and Mr. LeBlanc sat on the first Inquiry Committee.
[12] On March 17, 2015, the first Inquiry Committee issued a detailed notice of allegations. These allegations, as amended, included the following eight charges:
Count 1: While he was a lawyer, Mr. Girouard allegedly used drugs on a recurring basis.
. . .
Count 2: For a period of three to four years between 1987 and 1992, while he was a lawyer, Mr. Girouard allegedly purchased cocaine from Mr. X for his personal use, namely a total of about 1 kilogram with an approximate value of between $90,000 and $100,000.
. . .
Count 3: On September 17, 2010, while his application for appointment as a judge was pending, and more specifically two weeks before his appointment on or about September 30, 2010, Mr. Girouard allegedly purchased an illicit substance from Yvon Lamontagne, who was also his client.
. . .
Count 4: In the early 1990s, while he was a lawyer, Mr. Girouard allegedly exchanged professional services provided to Mr. X worth about $10,000, in relation to a case before the predecessor of the Régie des alcools, des courses et des jeux, for cocaine for his personal use.
. . .
Count 5: While he was a lawyer, Mr. Girouard was allegedly under the influence of an organization involved in organized crime, since he allegedly set up a mini greenhouse for cannabis plants in the basement of his home with the help of two members of that organization.
. . .
Count 6: On January 25, 2008, Mr. Girouard signed the Personal History Form used by the Office of the Commissioner for Federal Judicial Affairs and failed to disclose the information included in this Notice of Allegations in answer to the following question: “Is there anything in your past or present which could reflect negatively on yourself or the judiciary, and which should be disclosed?”.
. . .
Count 7: On or about January 11, 2013 and on or about August 14, 2013, Justice Girouard tried to mislead the Canadian Judicial Council by providing explanations that concealed the truth about the video recording of the transaction on September 17, 2010.
. . .
Count 8: On or about January 11, 2013 and on or about August 14, 2013, Justice Girouard made unbecoming comments that discredited certain officers of the court (agents of the Crown, lawyers and police officers) by insinuating that they had acted together to encourage false statements against him as retaliation.
[13] Before the Inquiry Committee, Justice Girouard testified that the video depicts him paying Mr. Lamontagne for previously viewed movies. He also testified that the purpose of his visit was to discuss a tax matter for which he had been retained and which concerned Mr. Lamontagne. With regard to the “Post-it”, Justice Girouard testified that it contained a note on which Mr. Lamontagne had written the amount he was prepared to accept to settle the tax matter.
[14] On November 18, 2015, the first Inquiry Committee issued its report. The majority of the members rejected all allegations against Justice Girouard, but nonetheless identified six contradictions, inconsistencies and implausibilities in Justice Girouard’s testimony. This led them to conclude that Justice Girouard’s testimony regarding the transaction captured on video was logically incoherent. The majority was of the view that Justice Girouard had deliberately and intentionally attempted to conceal the truth. Indeed, the majority determined that Justice Girouard’s conduct was so manifestly destructive of the concept of integrity that public confidence was sufficiently undermined to render him incapable of executing his judicial office. The majority therefore recommended his removal from office.
[15] For his part, Chief Justice Chartier wrote dissenting reasons in which he did not recommend that Justice Girouard be removed from office. Although he stated that he agreed with much of the majority’s analysis, his dissent focused mainly on the assessment of the evidence surrounding Justice Girouard’s testimony and on the application of the law to the facts. Chief Justice Chartier opined, inter alia, that the inconsistencies identified by the majority in Justice Girouard’s testimony were predictable, since they were of the kind that can be expected given the circumstances surrounding the inquiry and in a testimony that lasted five days. As for the content of the video recording, while Chief Justice Chartier certainly characterized it as being “shady”, he was of the view that in order to conclude that Justice Girouard deliberately attempted to mislead the first Inquiry Committee or that he lied during the process, there needed to be more than a simple credibility assessment. According to Chief Justice Chartier, there needed to be evidence that was independent of Justice Girouard’s testimony to confirm that what he had stated was not true. Chief Justice Chartier also concluded that the first Inquiry Committee could not impose a consequence on Justice Girouard for his misconduct during the inquiry, as that was not part of the Notice of Allegations.
[16] Subsequently, the Council reviewed the recommendation of the first Inquiry Committee and, on April 20, 2016, filed its report to the Minister. In its report, the Council unanimously rejected the recommendation for removal made by the first Inquiry Committee and recommended to the Minister that Justice Girouard not be removed. The Council stated that it did not consider the conclusion of the majority of the first Inquiry Committee that Justice Girouard attempted to mislead the Committee by concealing the truth. The Council was of the view that Justice Girouard was “not informed that the specific concerns of the majority were a distinct allegation of misconduct to which he must reply in order to avoid a recommendation for removal” (Canadian Judicial Council, Report to the Minister of Justice (April 20, 2016) at para 42).
[17] On June 14, 2016, in a joint letter, the Ministers requested a second inquiry “be held into the findings of the majority of the Inquiry Committee that prompted it to recommend Justice Girouard’s removal from office”.
[18] Following that request, the Council formed the second Inquiry Committee. Chief Justices Drapeau and Joyal, Associate Chief Justice Rivoalen, Bâtonnier Synnott and Mr. Veilleux sat on that committee.
[19] Before this second Inquiry Committee, Justice Girouard brought numerous preliminary motions and filed an application for a stay of proceedings and the dismissal of the second inquiry. The second Inquiry Committee dismissed all of the judge’s applications during the February 22, 2017 hearing. Reasons were issued in a decision dated April 5, 2017.
[20] Justice Girouard brought, before the Federal Court, 20 applications for judicial review of the decision on the preliminary motions. He also filed an interlocutory application to suspend the inquiry process.
[21] On May 4, 2017, the Federal Court dismissed the application to stay the second Inquiry Committee’s investigation and stayed the proceedings with regard to the 20 applications for judicial review.
[22] The Notice of Allegations issued by the Council for the second inquiry, as amended, included the following four allegations against Justice Girouard:
First Allegation
Judge Girouard has become incapacitated or disabled from the due execution of the office of judge by reason of his misconduct during the inquiry conducted by the First Committee, which misconduct is more fully set out in the findings of the majority reproduced at paragraphs 223 to 242 of its Report:
a) Judge Girouard failed to cooperate with transparency and forthrightness in the First Committee’s inquiry;
b) Judge Girouard failed to testify with transparency and integrity during the First Committee’s inquiry;
c) Judge Girouard attempted to mislead the First Committee by concealing the truth;
Second Allegation
Judge Girouard has also become incapacitated or disabled from the due execution of the office of judge by reason his misconduct and his failure in the due execution of the office of judge (ss. 65(2)(b) and (c) of the Judges Act), by falsely stating before the First Committee that:
a) he never used drugs;
b) he never obtained drugs;
Third Allegation
Judge Girouard has also become incapacitated or disabled from the due execution of the office of judge by reason of his misconduct and failure in the due execution of the office of judge (ss. 65(2)(b) and (c) of the Judges Act), by falsely stating before this Inquiry Committee that he never used cocaine when he was a lawyer;
Fourth Allegation
Judge Girouard has also become incapacitated or disabled from the due execution of the office of judge by reason of his misconduct and failure in the due execution of the office of judge (ss. 65(2)(b) and (c) of the Judges Act), by falsely stating before this Inquiry Committee that he never became acquainted with and was never provided a copy of Volume 3 of the Doray Report before May 8, 2017, his testimony on point being:
“A. That is... that is... I was never shown Volume 3, even in the first inquiry, never; I saw it for the first time on Monday, May 8, this week;
O.K.?
That is…
Q. But…
A. …the truth!”
Inquiry Committee concerning the Honourable Michel Girouard, Report of the Inquiry Committee to the Canadian Judicial Council (November 6, 2017) at para 1 [Report of the Second Inquiry Committee].
[23] In his testimony before the second Inquiry Committee, Justice Girouard attempted to explain once again the transaction captured on video. On November 6, 2017, the second Inquiry Committee filed its report in which it confirmed the contradictions, inconsistencies and implausibilities identified by the majority of the first Inquiry Committee. The second Inquiry Committee concluded that the first, third and fourth allegations had been established on a balance of probabilities and that Justice Girouard should be removed from office. As for the second allegation, it had not been established.
[24] On December 5, 2017, Justice Girouard provided his written submissions to the second panel of the Council. On February 20, 2018, the Council submitted its second report to the Minister, in which it recommended that Justice Girouard be removed from office. The Council only considered the first allegation and, after concluding that it had been established, determined that the judge’s integrity had been fatally compromised, that public confidence in the judiciary had been undermined, and that Justice Girouard had become incapacitated or disabled from the due execution of his office of judge. Three members of the second panel of the Council, Chief Justices Smith and Bell and Associate Chief Justice O’Neil, wrote a dissenting opinion based on the Council’s failure to translate into English all the transcripts of the testimonies before the first and second Inquiry Committees.
B. History of the case
[25] The conduct of this case was not simple. A great deal of work was done by the parties and Justice Noël, the case management judge, to ensure the progress of the case so that it could be heard on the merits. Indeed, Justice Girouard brought 24 separate applications for judicial review before this Court to review the decisions of the second Inquiry Committee, the Council and the Minister. As part of the preliminary proceedings, this Court refused to allow an application by Justice Girouard to stay this judicial review (Girouard v Canada (Attorney General), 2017 FC 449).
[26] Following a number of case management conferences, some of the 24 applications for judicial review were set aside and others were consolidated by order dated May 3, 2018. My judgment disposes of all the remaining applications for judicial review.
[27] Delays were also incurred following the Council’s refusal to produce its record. Before this Court, on May 24, 2018, the Council filed motions to strike based on its claim that the Federal Court does not have jurisdiction to review a decision rendered by the Council. By judgment rendered on August 29, 2018, Justice Noël dismissed those motions and denied the Council’s application to stay this judicial review (Girouard v Canada (Attorney General), 2018 FC 865 [Girouard (2018)]). On May 16, 2019, an appeal to the Federal Court of Appeal was also dismissed (Canadian Judicial Council v Girouard, 2019 FCA 148). An application for leave to appeal to the Supreme Court of Canada is currently pending.
[28] Then, a series of appearances and motions before Justice Noël was required to resolve the content of the record and determine which documents are covered by privilege. A judgment rendered by Justice Noël, dated November 26, 2018, which dealt with these issues, was appealed by Justice Girouard (see Girouard v Canada (Attorney General), 2018 FC 1184). The hearing of the appeal before the Federal Court of Appeal was heard on September 30, 2019 (Docket A‑394‑18), and the decision is currently under reserve.
[29] On March 8, 2019, Justice Girouard filed his memorandum and his application record on the merits in this matter. They consist of 44 public volumes comprising 14,851 pages, in addition to a confidential volume.
[30] A notice of motion was filed by the Council on March 18, 2019, for an order under rule 109(1) of the Federal Courts Rules, SOR/98-106 authorizing it to participate in the proceeding as an intervener. The motion was granted in part by judgment of Justice Noël dated April 9, 2019 (see Girouard v Canada (Attorney General), 2019 FC 434 [Girouard (2019)]). More specifically, the Council was granted permission to intervene only on topics related to the mission and functioning of the Council as well as the procedure followed for inquiries conducted under section 63 of the Judges Act, RSC 1985, c J-1 [the Act], including the application of the Canadian Judicial Council Inquiries and Investigations By-laws, 2015, SOR/2015-203 [2015 By-laws] and the Handbook of Practice and Procedure of CJC Inquiry Committees [the Handbook]. The Council’s memorandum of fact and law and record were filed on April 16, 2019, which consist of a single volume comprising 303 pages.
[31] On April 30, 2019, the Attorney General of Canada [the AGC] filed his memorandum of fact and law and record, which consist of ten volumes comprising 2,081 pages.
[32] On May 15, 2019, the applicant filed his reply, which consists of five volumes comprising 869 pages.
[33] Finally, on May 22, 2019, the first day of the hearing, the AGC filed his ten-page surreply.
[34] The Attorney General of Quebec did not file a record or make any submissions.
[35] The hearing was held on May 22 and 23, 2019, in Montréal. During the hearing, the parties filed compendiums and excerpts from statutes and the case law.
[36] A transcript of the hearing was made available on June 5, 2019.
C. Background
[37] Before proceeding to the analysis of the issues raised by Justice Girouard, it is important to describe the context in which these issues arise. I will thus first discuss the importance of judicial independence and then summarize the disciplinary process provided for by the Act.
(1) The importance of judicial independence
[38] The separation of powers among the three branches of government—the legislature, the executive and the judiciary—is one of the defining features of the Canadian Constitution (Cooper v Canada (Human Rights Commission), [1996] 3 SCR 854, at para 10, 140 DLR (4th) 193). It follows from this separation that no government, stakeholder group, individual or even another judge can interfere with the way in which a judge makes his or her decision (Beauregard v Canada, [1986] 2 SCR 56, at p 69, 30 DLR (4th) 481 [Beauregard]).
[39] A judge must be able to properly exercise his or her functions and be able to render a decision without fear of reprisal. The principle of judicial independence is one of the main reasons why a judge holds office during good behaviour. The public must have confidence that all decisions are impartial and objective; otherwise, the principle of the rule of law would be eroded.
[40] In Conférence des juges de paix magistrats du Québec v Quebec (Attorney General), 2016 SCC 39, the Supreme Court of Canada described three sources of the principle of judicial independence in Canada:
The Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, reprinted in RSC 1985, Appendix II, No 5 [Constitution Act], which provides that the Constitution is “similar in Principle to that of the United Kingdom” (Beauregard at p 72);
Subsection 11(d) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (UK), 1982, c 11 [Charter], which guarantees the accused’s right to a fair trial by an impartial tribunal (Valente v The Queen, [1985] 2 SCR 673, at pp 685–89, 24 DLR (4th) 161 [Valente]); and
An unwritten constitutional principle (Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island; Reference re Independence and Impartiality of Judges of the Provincial Court of Prince Edward Island, [1997] 3 SCR 3, at paras 83‑109, 150 DLR (4th) 577).
[41] In addressing this principle, the Supreme Court of Canada explained in Valente that judicial independence is essential to the capacity to do justice in a particular case and to public confidence in the administration of justice. It follows that, without this confidence, the system cannot command the respect and acceptance that are essential to its effective operation. The public must therefore have confidence not only in the judicial institution, but also in its main actors, the judges.
[42] For a judge, however, judicial independence is a double-edged sword. Indeed, in Moreau-Bérubé v New-Brunswick (Judicial Council), 2002 SCC 11, at para 46 [Moreau-Bérubé], the Supreme Court of Canada explained the two branches of the integrity of the judiciary as follows:
The integrity of the judiciary comprises two branches which may at times be in conflict with each other. It relates, first and foremost, to the institutional protection of the judiciary as a whole, and public perceptions of it, through the disciplinary process that allows the Council to investigate, reprimand, and potentially recommend the removal of judges where their conduct may threaten judicial integrity (Therrien, supra, at paras. 108-12 and 146-50). Yet, it also relates to constitutional guarantees of judicial independence, which includes security of tenure and the freedom to speak and deliver judgment free from external pressures and influences of any kind (see R. v. Lippé, [1991] 2 S.C.R. 114; Beauregard v. Canada, [1986] 2 S.C.R. 56; Valente, supra.
[43] Thus, the security of tenure of judges is such that, while they are protected from external actors, they must also maintain high standards of behaviour so as to ensure the public’s confidence in them and the judiciary as a whole. In the words of Philip B. Kurland, the provisions for securing the independence of the judiciary were “not created for the benefit of the judges, but for the benefit of the judged” (Gratton v Canadian Judicial Council, [1994] 2 FC 769, at p 11, 115 DLR (4th) 81 [Gratton], citing Philip B. Kurland, “The Constitution and the Tenure of Federal Judges: Some Notes from History” (1969) 36 U Chicago L Rev 665 at p 698, as cited by Irving R. Kaufman, “Chilling Judicial Independence” (1979) 88 Yale LJ 681 at p 690). As noted by the Supreme Court of Canada in Moreau-Bérubé at paragraph 59, citing Therrien (Re), 2001 SCC 35 at para 111 [Therrien], litigants are therefore able to require
virtually irreproachable conduct from anyone performing a judicial function. It will at least demand that they give the appearance of that kind of conduct. They must be and must give the appearance of being an example of impartiality, independence and integrity. What is demanded of them is something far above what is demanded of their fellow citizens.
[44] It is therefore important that a process be put in place to launch an inquiry into any conduct of an individual judge that is inappropriate and may undermine public confidence in the judicial system.
[45] In the early 1970s, the Act was amended to create the Council. The Council’s mission is to promote efficiency and uniformity, and to improve the quality of judicial service, in superior courts. The Council is responsible for, among other things, dealing with and investigating complaints filed against superior court judges and, where applicable, submitting a report to the Minister on the appropriate sanction.
[46] Accordingly, Justice Noël’s explanation in his decision regarding the Council’s intervention in Girouard (2019) at paragraph 26 includes the following point:
I acknowledge at the outset that the [Council] is a special body with a special purpose, and that it is a group composed of chief justices and associate chief justices and is chaired by the Chief Justice of Canada. This in itself gives the [Council] a distinctive and notable status. The [Council], both collectively and through each of its members, has unique experience. When investigating the conduct of judges in response to a complaint, it has the confidence of those who are under investigation and the public. It also has an extraordinary knowledge and understanding of such matters.
(2) Description of the disciplinary process
(a) The Act
[47] Part II of the Act is entitled “Canadian Judicial Council”. The Act provides that the Council may “investigate any complaint or allegation made in respect of a judge of a superior court” (Act, s 63(2)). Under subsection 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, if the judge in respect of whom an inquiry or investigation has been conducted has become incapacitated or disabled from the due execution of the office of judge, notably by reason of having been found guilty of misconduct. Moreover, subsection 63(3) of the Act provides that the Council may constitute an inquiry committee comprising one or more of its members along with such members of the bar as may be designated by the Minister.
[48] The relevant excerpts from the Act read as follows:
Judges Act, RSC 1985, c J-1
Loi sur les juges, LRC 1985, ch J-1
Inquiries concerning Judges
Enquêtes sur les juges
Inquiries
Enquêtes obligatoires
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).
63 (1) Le Conseil mène les enquêtes que lui confie le ministre ou le procureur général d’une province sur les cas de révocation au sein d’une juridiction supérieure pour tout motif énoncé aux alinéas 65(2)a) à d).
Investigations
Enquêtes facultatives
(2) The Council may investigate any complaint or allegation made in respect of a judge of a superior court.
(2) Le Conseil peut en outre enquêter sur toute plainte ou accusation relative à un juge d’une juridiction supérieure.
Inquiry Committee
Constitution d’un comité d’enquête
(3) The Council may, for the purpose of conducting an inquiry or investigation under this section, designate one or more of its members who, together with such members, if any, of the bar of a province, having at least ten years standing, as may be designated by the Minister, shall constitute an Inquiry Committee.
(3) Le Conseil peut constituer un comité d’enquête formé d’un ou plusieurs de ses membres, auxquels le ministre peut adjoindre des avocats ayant été membres du barreau d’une province pendant au moins dix ans.
Powers of Council or Inquiry Committee
Pouvoirs d’enquête
(4) The Council or an Inquiry Committee in making an inquiry or investigation under this section shall be deemed to be a superior court and shall have
(4) Le Conseil ou le comité formé pour l’enquête est réputé constituer une juridiction supérieure; il a le pouvoir de :
(a) power to summon before it any person or witness and to require him or her to give evidence on oath, orally or in writing or on solemn affirmation if the person or witness is entitled to affirm in civil matters, and to produce such documents and evidence as it deems requisite to the full investigation of the matter into which it is inquiring; and
a) citer devant lui des témoins, les obliger à déposer verbalement ou par écrit sous la foi du serment — ou de l’affirmation solennelle dans les cas où elle est autorisée en matière civile — et à produire les documents et éléments de preuve qu’il estime nécessaires à une enquête approfondie;
(b) the same power to enforce the attendance of any person or witness and to compel the person or witness to give evidence as is vested in any superior court of the province in which the inquiry or investigation is being conducted.
b) contraindre les témoins à comparaître et à déposer, étant investi à cet égard des pouvoirs d’une juridiction supérieure de la province où l’enquête se déroule.
[…]
[…]
Report and Recommendations
Rapports et recommandations
Report of Council
Rapport du Conseil
65 (1) After an inquiry or investigation under section 63 has been completed, the Council shall report its conclusions and submit the record of the inquiry or investigation to the Minister.
65 (1) À l’issue de l’enquête, le Conseil présente au ministre un rapport sur ses conclusions et lui communique le dossier.
Recommendation to Minister
Recommandation au ministre
(2) Where, in the opinion of the Council, 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 by reason of
(2) Le Conseil peut, dans son rapport, recommander la révocation s’il est d’avis que le juge en cause est inapte à remplir utilement ses fonctions pour l’un ou l’autre des motifs suivants :
(a) age or infirmity,
a) âge ou invalidité;
(b) having been guilty of misconduct,
b) manquement à l’honneur et à la dignité;
(c) having failed in the due execution of that office, or
c) manquement aux devoirs de sa charge;
(d) having been placed, by his or her conduct or otherwise, in a position incompatible with the due execution of that office,
d) situation d’incompatibilité, qu’elle soit imputable au juge ou à toute autre cause.
(b) The 2015 By-laws
[49] The 2015 By-laws stipulate that when the Chairperson or Vice-Chairperson of the Judicial Conduct Committee receives a complaint or allegation made in respect of a judge of a superior court, the Chairperson or Vice-Chairperson may establish a review panel if they determine that a complaint or allegation might, on its face, be serious enough to warrant the removal of the judge. The review panel may, in turn, constitute an inquiry committee if it determines that the matter might be serious enough to warrant the removal of the judge (2015 By-laws, s 2(1)). Under section 7 of the 2015 By-laws, the inquiry committee must conduct its inquiry or investigation in accordance with the principle of fairness. Section 8 then provides that “[t]he Inquiry Committee must submit a report to the Council setting out its findings and its conclusions about whether to recommend the removal of the judge from office”. The four key players of the disciplinary process are therefore the Judicial Conduct Committee’s Chairperson or Vice-Chairperson, the review panel, the inquiry committee and the Council.
[50] In accordance with subsection 9(1) of the 2015 By-laws, the judge being investigated may make written submissions to the Council regarding the inquiry committee’s report, within 30 days after the day on which the inquiry committee’s report is received. If the Council is of the opinion that the inquiry committee’s report requires clarification or that a supplementary inquiry or investigation is necessary, the Council may “refer all or part of the matter back to the Inquiry Committee with directions” (2015 By-laws, s 12). Finally, the Council considers the inquiry committee’s report and the judge’s written submissions and presents its report to the Minister (2015 By-laws, s 13).
[51] The relevant excerpts from the 2015 By-laws read as follows:
Canadian Judicial Council Inquiries and Investigations By-laws, 2015, SOR/2015-203
Règlement administratif du Conseil canadien de la magistrature sur les enquêtes, (2015), DORS/2015-203
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Establishment and Powers of a Judicial Conduct Review Panel
Constitution et pouvoirs du comité d’examen de la conduite judiciaire
Establishment of Judicial Conduct Review Panel
Constitution du comité d’examen de la conduite judiciaire
2 (1) The Chairperson or Vice-Chairperson of the Judicial Conduct Committee, established by the Council in order to consider complaints or allegations made in respect of a judge of a superior court may, if they determine that a complaint or allegation on its face might be serious enough to warrant the removal of the judge, establish a Judicial Conduct Review Panel to decide whether an Inquiry Committee should be constituted in accordance with subsection 63(3) of the Act.
2 (1) Le président ou le vice-président du comité sur la conduite des juges constitué par le Conseil afin d’examiner les plaintes ou accusations relatives à des juges de juridiction supérieure peut, s’il décide qu’à première vue une plainte ou une accusation pourrait s’avérer suffisamment grave pour justifier la révocation d’un juge, constituer un comité d’examen de la conduite judiciaire qui sera chargé de décider s’il y a lieu de constituer un comité d’enquête en vertu du paragraphe 63(3) de la Loi.
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Legal Counsel and Advisors
Avocats et conseillers
Persons to advise and assist
Conseils et assistance
4 The Inquiry Committee may engage legal counsel and other persons to provide advice and to assist in the conduct of the inquiry.
4 Le comité d’enquête peut retenir les services d’avocats et d’autres personnes pour le conseiller et le seconder dans le cadre de son enquête.
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Principle of fairness
Principe de l’équité
7 The Inquiry Committee must conduct its inquiry or investigation in accordance with the principle of fairness.
7 Le comité d’enquête mène l’enquête conformément au principe de l’équité.
Inquiry Committee Report
Rapport du comité d’enquête
Report of findings and conclusions
Rapport du comité d’enquête
8 (1) The Inquiry Committee must submit a report to the Council setting out its findings and its conclusions about whether to recommend the removal of the judge from office.
8 (1) Le comité d’enquête remet au Conseil un rapport dans lequel il consigne les constatations de l’enquête et statue sur l’opportunité de recommander la révocation du juge.
Copy of report and notice to complainant
Rapport remis au juge et avis au plaignant
(2) After the report has been submitted to the Council, its Executive Director must provide a copy to the judge and to any other persons or bodies who had standing in the hearing. He or she must also notify the complainant, if any, when the Inquiry Committee has made the report.
(2) Une fois le rapport remis au Conseil, le directeur exécutif du Conseil en transmet une copie au juge et à toute autre personne ou à tout organisme ayant eu la qualité de comparaître à l’audience, et, le cas échéant, il informe le plaignant que le comité d’enquête a établi son rapport.
Hearing conducted in public
Audience publique
(3) If the hearing was conducted in public, the report must be made available to the public and a copy provided to the complainant, if any.
(3) Le rapport de toute audience publique est mis à la disposition du public et une copie en est remise au plaignant.
Judge’s Response to Inquiry Committee Report
Réponse du juge au rapport du comité d’enquête
Written submission by judge
Observations écrites du juge
9 (1) Within 30 days after the day on which the Inquiry Committee’s report is received, the judge may make a written submission to the Council regarding the report.
9 (1) Le juge peut, dans les trente jours suivant la réception du rapport du comité d’enquête, présenter des observations écrites au Conseil au sujet du rapport.
Extension
Prolongation de délai
(2) On the judge’s request, the Council must grant an extension of time for making the submission if it considers that the extension is in the public interest.
(2) Sur demande du juge, le Conseil prolonge ce délai s’il estime qu’il est dans l’intérêt public de le faire.
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Consideration of Inquiry Committee Report by Council
Examen