Girouard v. Canada (Attorney General)

Girouard v. Canada (Attorney General)
Court (s) Database
Federal Court of Appeal Decisions
Date
2020-08-19
Neutral citation
2020 FCA 129
File numbers
A-419-19
Notes
A correction was made on August 11, 2021Reported Decision
Decision Content
Date: 20200819
Docket: A-419-19
Citation: 2020 FCA 129
[ENGLISH TRANSLATION]
CORAM:
DE MONTIGNY J.A.
GLEASON J.A.
LOCKE J.A.
BETWEEN:
THE HONOURABLE MICHEL GIROUARD
Appellant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
and
THE ATTORNEY GENERAL OF QUEBEC
Third party
Online videoconference hosted by the Registry
on June 18 and 19, 2020.
Judgment delivered at Ottawa, Ontario, on August 19, 2020.
REASONS FOR JUDGMENT BY:
DE MONTIGNY J.A.
CONCURRED IN BY:
GLEASON J.A.
LOCKE J.A.
Date: 20200819
Docket: A-419-19
Citation: 2020 FCA 129
CORAM:
DE MONTIGNY J.A.
GLEASON J.A.
LOCKE J.A.
BETWEEN:
THE HONOURABLE MICHEL GIROUARD
Appellant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
and
THE ATTORNEY GENERAL OF QUEBEC
Third party
REASONS FOR JUDGMENT
DE MONTIGNY J.A.
[1] This appeal is the conclusion (subject to a possible appeal to the Supreme Court) of a long saga to ultimately determine whether the Honourable Michel Girouard was guilty of misconduct and could, on that ground, be subject to a recommendation from the Canadian Judicial Council (the Council) under paragraph 65(2)(b) of the Judges Act, R.S.C. 1985, c. J-1 (the Act) that he be removed from office. As in all cases of this nature, the resolution of this dispute is of central importance not only for Justice Girouard, whose career and reputation are at stake, but also for the integrity of the judiciary as a whole and, thereby, for the administration of justice in this country.
[2] An unusual and, no doubt, unique case in Canadian history, the Council’s decision that was subject to review before the Federal Court and that is now before us on appeal follows an initial Council decision that recommended against the Minister of Justice removing Justice Girouard from office by reason of the allegations made against him by the Chief Justice of the Superior Court of Québec at the time. It was in order to shed light on some of the findings made by the majority of the first Inquiry Committee, which the Council declined to act on in its first report, that the Minister of Justice of Canada and the Minister of Justice of Quebec made a request to the Council that a new inquiry be held, which led to the second decision that is the subject of this appeal.
[3] Throughout the proceedings before the Council in the second inquiry, counsel for Justice Girouard filed no fewer than 24 applications for judicial review, disputing various aspects of the procedure followed and raising three constitutional questions before the Federal Court. Those various proceedings demonstrate both the complexity of this case as well as the vigour with which Justice Girouard’s rights were defended.
[4] After a thorough and exhaustive analysis of the arguments presented by Justice Girouard with regard to the establishment of the second Inquiry Committee and its inquiry process, the second Inquiry Committee’s decision on the preliminary motions, and the Council’s report recommending his removal, Justice Rouleau (a judge of the Court of Appeal for Ontario sitting as a deputy judge of the Federal Court) dismissed the application for judicial review and answered the constitutional questions in the negative.
[5] After carefully reviewing the case and considering all of the arguments put forward by counsel for Justice Girouard challenging that judgment, I am of the opinion that the appeal should be dismissed. In my view, the Federal Court did not err in finding that the Council’s decision to recommend Justice Girouard’s removal was reasonable. Moreover, I find that there was no breach of the principles of procedural fairness and that Justice Girouard was given full opportunity to be heard and to make submissions. Although it might have been desirable for certain portions of the transcript of the hearings before the second Inquiry Committee to have been translated, I nonetheless find that Justice Girouard was not prejudiced by this and that it would not be appropriate to set aside the Council’s decision on that ground, as I will explain later.
I. History of this litigation
[6] The various stages of this and the preceding case were meticulously recounted by Justice Rouleau in his judgment, were summarized in detail by this Court in a previous decision that confirmed that the Council is subject to judicial review before the Federal Court, by the various judges of the Federal Court who dealt with several motions filed by Justice Girouard in the first and second inquiries, and by the inquiry committees constituted by the Council to consider the two complaints against Justice Girouard. See: Canada (Judicial Council) v. Girouard, 2019 FCA 148; Girouard v. Canadian Judicial Council, 2015 FC 307; Girouard v. Canada (Attorney General), 2017 FC 449, [2017] F.C.J. No. 675 (QL); Girouard v. Canada (Attorney General), 2018 FC 865, [2019] 1 F.C.R. 404; Girouard v. Canada (Attorney General), 2020 FC 557; Report of the first Inquiry Committee, November 18, 2015 (Appeal Book (AB), volume 5, tab 43); Report of the second Inquiry Committee, November 6, 2017 (AB, volume 3, tab 21). For the purposes of this appeal, I need only refer to the key milestones that led the Council to recommend Justice Girouard’s removal in its Report to the Minister of Justice of Canada dated February 20, 2018.
[7] Justice Girouard was appointed to the Superior Court of Québec on September 30, 2010, after having practised law in Abitibi, Quebec, for 25 years. After having been informed by the Director of Criminal and Penal Prosecutions that Justice Girouard had been identified by a drug trafficker as being one of his clients, the Chief Justice of the Superior Court filed a complaint with the Council for the purposes of having Justice Girouard’s conduct reviewed. In his letter to the Council dated November 30, 2012, the Chief Justice added that a video identifies Justice Girouard [translation] “allegedly carrying out a transaction, presumed to be a cocaine purchase, that occurred approximately thirteen days before Justice Girouard’s appointment” (AB, volume 4, tab 24).
[8] A review panel consisting of Chief Justice J. Ernest Drapeau, Chief Justice Glenn D. Joyal and Justice Arthur J. LeBlanc found, after conducting a review, that an inquiry committee should be constituted to carry out a more thorough inquiry into the issue (Report of the Review Panel, AB, volume 4, tab 33).
[9] Pursuant to subsection 63(3) of the Act and in accordance with the Canadian Judicial Council Inquiries and Investigations By-laws, SOR/2002-371, repealed, SOR/2015-203, s. 15 (the 2002 By-laws), the Council therefore constituted an inquiry committee consisting of Chief Justice Richard Chartier, Chief Justice Paul Crampton and Ronald LeBlanc, Q.C. Eight allegations were initially identified by independent counsel; following the pre-hearing conferences and hearings, some of those allegations were withdrawn and others were amended. At the end of its inquiry, the Committee unanimously found that the third allegation (i.e., that two weeks before his appointment, Mr. Girouard allegedly purchased an illicit substance) had not been proven. In such circumstances, the Committee did not find it appropriate to continue the inquiry into the other allegations (regarding the purchase and use of illicit substances by Mr. Girouard when he was a lawyer in the late 1980s and early 1990s and his failure to disclose this fact in his personal history form, submitted as part of his application for the federal judiciary).
[10] However, two of the Inquiry Committee members identified six “contradictions, inconsistencies and implausibilities” that, in their opinion, raised “deep and serious concerns” about Justice Girouard’s credibility and integrity. This “Majority Report”, as it was subsequently called, had a determinative effect on the subsequent sequence of events. Upon reviewing Justice Girouard’s testimony, Chief Justice Crampton and Mr. LeBlanc wrote the following:
In short, on the basis of all the evidence submitted to the Committee to date, and subject to our comments below about the possibility of bringing a further count, we cannot, with great regret, accept Justice Girouard’s version of the facts. Although this implies nothing about the nature of the object that was exchanged, we wish to express our deep and serious concerns about Justice Girouard’s credibility during the inquiry and, consequently, about his integrity. In our opinion, Justice Girouard deliberately attempted to mislead the Committee by concealing the truth. [Footnotes omitted.]
Report of the first Inquiry Committee dated November 18, 2015, at paragraph 227; AB, volume 5, tab 43, at page B-4990.
[11] Stating that they were of the opinion that Justice Girouard did not demonstrate a level of conduct that is irreproachable through his lack of candour during his testimony, Chief Justice Crampton and Mr. LeBlanc found that Justice Girouard had placed himself in a position incompatible with the due execution of the office of judge pursuant to paragraph 65(2)(d) of the Act and recommended his removal. In their opinion, keeping Justice Girouard as a judge of the Superior Court of Québec would undermine the integrity of the justice system. In his dissent, Chief Justice Chartier stated that he was of the opinion that the inconsistencies, errors and weaknesses in Justice Girouard’s testimony affected the reliability of the testimony much more than the credibility of the witness. Chief Justice Chartier was also of the opinion that procedural fairness required that Justice Girouard be given an opportunity to respond to the new concerns raised by his colleagues.
[12] In its Report to the Minister of Justice of Canada, the Council accepted the Inquiry Committee’s finding that the third allegation had not been proven on a balance of probabilities, but refused to act on the majority recommendation that Justice Girouard should be removed from office because of the lack of candour and transparency in his testimony:
In this Report, we do not consider the majority’s conclusion that the judge attempted to mislead the Committee by concealing the truth and that such conduct places him in a position incompatible with the execution of his office. The Council takes this approach because the judge 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.
Report of the Canadian Judicial Council to the Minister of Justice dated April 20, 2016, at paragraph 42; AB, volume 5, tab 44, at page B-5011.
[13] Stating that they were concerned by the findings of misconduct during the inquiry that were made by the majority of the Inquiry Committee, the Minister of Justice of Canada and the Minister of Justice of Quebec wrote to the Council less than two months after having received the first report in order to request that the Council hold a new inquiry regarding those findings. In the opinion of the two Ministers, such an approach was necessary not only to determine whether Justice Girouard had become incapacitated or disabled from the due execution of the office of judge because of his conduct during the inquiry, but also to dispel any doubts about him. It is important to note that in the opinion of the two Ministers, this course of action was consonant with the purpose of the disciplinary process to ensure public confidence in the judiciary, and was the course of action “that is fair to Justice Girouard in the circumstances” (AB, volume 5, tab 45, at p. B-5016).
[14] Further to that request, the Council constituted a second Inquiry Committee consisting of Chief Justice Drapeau, Chief Justice Joyal, Associate Chief Justice Marianne Rivoalen, Bâtonnier Bernard Synnott, Ad. E., and Paule Veilleux, a lawyer. It should be noted that the second inquiry proceeding was conducted in accordance with the Canadian Judicial Council Inquiries and Investigations By-laws (2015), SOR/2015-203 (the 2015 By-laws), which came into force on July 28, 2015. The misconduct allegations against Justice Girouard were set out in four allegations, which were stated in the Notice of Allegations dated December 23, 2016, as amended on February 22, 2017, and as further amended on May 17, 2017 (AB, volume 7, tab 57). One of them, that is, that Justice Girouard falsely told the first Inquiry Committee that he never used or obtained drugs, was rejected. The three others, which it bears reproducing, read as follows:
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.
. . .
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!”
[15] After a three-day hearing, the second Inquiry Committee rendered its first decision on February 22, 2017; that decision was with respect to a number of preliminary motions and constitutional questions submitted by Justice Girouard. That approximately 50-page decision addresses many of the objections that were again raised by Justice Girouard before the Federal Court and before us, and I will deal with them in greater detail in my analysis.
[16] In the 86-page final report that it submitted to the Council on November 6, 2017 (AB, volume 13, at p. B-6929), the second Inquiry Committee unanimously determined that the three allegations reproduced in paragraph 14 of these reasons had been established on a strong balance of probabilities by clear and convincing evidence, and it recommended the removal of Justice Girouard. The second Inquiry Committee came to this conclusion after having reviewed the transcript of the 14 days of hearings before the first Inquiry Committee and after having heard the testimony of the parties over eight days (three of which were spent hearing from Justice Girouard).
[17] The second Inquiry Committee was well aware of the unique nature of the inquiry it was responsible for conducting, particularly with regard to the first allegation, and it turned its mind to the weight that should be given to the statements made by the majority of the first Inquiry Committee. In this respect, the second Inquiry Committee found that it was not bound by the findings of Chief Justice Crampton and Mr. LeBlanc and that it had to weigh them in light of the explanations provided by Justice Girouard:
All things considered, we concluded it was appropriate to accept the findings of the majority underlying that Allegation only if it was shown they were both free from error and reasonable, and only to the extent they withstood our assessment of the evidence deemed reliable.
Report of the second Inquiry Committee, at paragraph 5; AB, volume 13, tab 91, at page B-6933. See also to the same effect paragraph 31.
[18] After considering each of the inconsistencies and implausibilities raised by the majority of the first Inquiry Committee in light of the explanations provided by Justice Girouard, the five members of the second Inquiry Committee found that no error vitiated those findings and that no element of Justice Girouard’s testimony was a basis for their rejection. In this regard, the second Inquiry Committee noted that Justice Girouard did not testify in a frank and transparent manner, that it was “sometimes necessary to repeatedly, and unnecessarily, reformulate the questions before [he] finally saw fit to answer them” and that he behaved like an “uncooperative and obstinate witness, who was often disinclined to answer promptly and fully questions put to him” (Report of the second Inquiry Committee, at paras. 95 and 96, AB, volume 13, tab 91, at p. B‑6955). Having concluded that Justice Girouard’s misconduct as identified in the first allegation had been established on a balance of probabilities, the second Inquiry Committee found that the misconduct was destructive of the integrity of the justice system and that it undermined public confidence in such a fashion as to render Justice Girouard incapable of discharging his judicial functions. As previously mentioned, the second Inquiry Committee came to the same conclusion for the third and fourth allegations.
[19] In the Council’s Report to the Minister of Justice dated February 20, 2018, it adopted the second Inquiry Committee’s preliminary decision with regard to the complaints advanced by Justice Girouard concerning jurisdiction and procedure, and responded to the other concerns raised by Justice Girouard in his written submissions to the Council regarding other procedural issues. The Council also accepted the second Inquiry Committee’s findings regarding the first allegation and held that there was no need to examine the second Inquiry Committee’s findings regarding the third and fourth allegations. After having noted that the critical evidence underlying the first allegation was Justice Girouard’s testimony concerning a video recording of a meeting he had with a drug trafficker who was his client at the time, the Council wrote the following:
We find it telling, and compelling, that nowhere in the Judge’s submission or in the Report [of the second Inquiry Committee] is there a simple, rational, coherent, all-encompassing or satisfying explanation of what takes place in the 17 second video. After being afforded natural justice – notice of the Allegations, the assistance of counsel and an opportunity to be heard by an impartial tribunal – the Judge was unable to give any credible explanation of his conduct which was consistent with and justified his testimony before the First Committee. We conclude he is simply unwilling to provide a truthful explanation. He failed to do so before the Committee and he failed to do so in his written submissions to Council.
Certified Tribunal Record, at paragraph 59; AB, volume 10, tab 82, at pages B‑6373 and B-6374.
[20] However, three Council members (Chief Justice Smith, Chief Justice Bell and Associate Chief Justice O’Neil) dissented on the ground that Justice Girouard’s right to a fair hearing had not been respected. Their dissent was based on the fact that the record that the unilingual English-speaking members of the Council had access to was not the same as that which was available to the bilingual members because the transcripts of the evidence presented before the first Inquiry Committee and the second Inquiry Committee were not translated and distributed in both official languages to all of the members.
[21] Justice Girouard filed 24 applications for judicial review before the Federal Court. In those applications, he raised different grounds for having the decisions of the second Inquiry Committee, the Council, and the Minister set aside. Some of the motions were dismissed and others were consolidated through an order of Justice Simon Noël, issued on May 3, 2018. The Federal Court decision that is the subject of this appeal disposed of all of the applications for judicial review, as well as the constitutional questions raised in the Notice of Constitutional Questions filed on January 26, 2017.
II. The Federal Court decision
[22] The Federal Court applied the standard of correctness to the constitutional and procedural fairness issues and the standard of reasonableness to the Council’s interpretation of the Act, that is, its enabling statute, and the 2015 By‑laws and their application to Justice Girouard’s situation. In doing so, the Federal Court dismissed all of the applications for judicial review that were filed by Justice Girouard. The Court’s reasons consist of 258 paragraphs and deal with all of the arguments put forth by counsel for Justice Girouard. Although it is risky to try to summarize such a long judgment, I find that the following statements outline its principal findings:
- Procedural fairness did not require that Justice Girouard be permitted to appear before the Council or to respond to the minority’s concerns. He had the opportunity to understand the allegations against him and to respond to them at each stage of the process; procedural fairness and the audi alteram partem rule do not go so far as to allow him to attend and participate in the Council’s deliberations or to make representations on the issues raised by the minority.
- The principle of the separation of functions, as codified in paragraph 3(4)(c) of the 2015 By-laws, was not violated because Chief Justice Drapeau and Chief Justice Joyal were members of the Review Panel established for the first complaint and then members of the second Inquiry Committee. The above-mentioned provision states that “a member of the Judicial Conduct Review Panel who participated in the deliberations to decide whether an Inquiry Committee must be constituted” is not eligible to be a member of the Inquiry Committee. However, the second inquiry dealt with an inquiry request distinct from that which was reviewed by those judges in the context of the Review Panel’s work prior to the first investigation. The same reasoning applies for the 13 Council members who sat as members of the first and the second panel of the Council. Moreover, the Review Panel’s statements do not give rise to a reasonable apprehension of bias when they are considered in context, and there is no reason to believe that Chief Justice Drapeau and Chief Justice Joyal did not act impartially as members of the second Inquiry Committee.
- The elimination of the independent counsel after the 2015 By-laws were enacted does not violate the principles of judicial independence, fundamental justice or procedural fairness. The lawyers designated to participate in the second Inquiry Committee did not act as prosecutors and had only one goal, namely the search for the truth.
- There is no reviewable error in the inquiry request made by the Minister of Justice of Canada and the Minister of Justice of Quebec; its sole purpose was the public interest in the proper administration of justice. The briefing notes on which Justice Girouard relied do not establish that the decision of the Minister of Justice of Canada was motivated by political considerations. In addition, the Ministers’ request did not dictate the approach that the Council had to take; the second Inquiry Committee was free to reframe the subject matter of the inquiry if it deemed it necessary.
- The second Inquiry Committee did not err in ruling that during the cross‑examination of Justice Girouard, he had to stop referring to a compendium that was prepared by his counsel and that included excerpts from his testimony before the first Inquiry Committee. In addition, Justice Girouard did not demonstrate that he was prejudiced by that decision.
- The second Inquiry Committee did not reverse the burden of proof. It considered the findings of the majority of the first Inquiry Committee as a starting point, but it then considered the evidence and the explanations provided by Justice Girouard before it and independently reviewed the transcripts, the exhibits and the relevant evidence. It also considered the dissent of Chief Justice Chartier in the first Inquiry Committee’s report.
- The Council did not reverse the burden of proof when it accepted the second Inquiry Committee’s finding. The Council is not required to repeat an inquiry committee’s work or to review the evidence in its entirety unless there is an error that may be qualified as palpable and overriding. Its role is instead to draw its own conclusions with regard to the recommendation to be made to the Minister. No serious factual errors have been demonstrated in the second Inquiry Committee’s report, and the Council’s decision to accept its recommendation was reasonable in the circumstances.
- Justice Girouard’s language rights as guaranteed by section 133 of the Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3 (C.A., 1867), sections 14, 16, and 19 to 22 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K), 1982, c. 11 (the Charter) and sections 14 and 16 of the Official Languages Act, R.S.C. 1985, c. 31 (4th Supp.) (Official Languages Act), were not infringed. Justice Girouard was able to testify and present his case in the language of his choice. Part III of the Official Languages Act was not violated on the ground that some Council members did not understand French because the Council is not a “federal court” within the meaning of subsection 3(2) of that statute.
- The Council was not required to translate all of the transcripts of the inquiry conducted by the second Inquiry Committee because they were not part of the record that the Council was required to consult before arriving at its own recommendation to the Minister. Moreover, Justice Girouard suffered no prejudice from the fact that the transcripts were not translated to the extent that he did not identify any explanation that he gave to the second Inquiry Committee to justify his conduct and that was not considered in its report.
- Section 60, paragraph 61(3)(c) and sections 63 to 66 of the Act, subsections 1.1(2) and 5(1) of the 2002 By-laws, subsections 2(1), 3(1) to 3(3), section 4, and subsection 5(1) of the 2015 By-laws and sections 3.1, 3.2 and 3.3 of the Handbook of Practice and Procedure of the Council’s Inquiry Committees (Handbook of Practice) are intra vires Parliament’s authority. The power to investigate the conduct of judges is directly linked to the federal power to appoint, pay, and remove superior court judges.
[23] It is from this Federal Court decision that Justice Girouard appeals.
III. Issues
[24] Counsel for Justice Girouard raised several issues before us and in substance challenge each and every finding of the Federal Court. In my view, those issues can be usefully restated as follows:
(a) Did the Federal Court properly identify the applicable standards of review?
(b) Is the Council’s decision reasonable?
(c) Were the two inquiries concerning Justice Girouard distinct from one another, as the respondent argues, or did they have the same subject matter, as the appellant argues? In my opinion, the answer to this question is crucial to determining whether there was a violation of the rule of separation of functions codified in the 2015 By‑laws and of the principle of estoppel, which bars the reopening of cases.
(d) Was the appellant’s right to procedural fairness respected? I include in this issue the appellant’s claims that he had the right to be heard in respect of the concerns expressed by the dissenting members of the Council, as well as his arguments related to the reversal of the burden of proof and his right to consult the compendium during his cross-examination.
(e) Were the appellant’s language rights respected?
(f) Are section 60, paragraph (61)(3)(c), and sections 63 to 66 of the Act and the by‑laws enacted under the authority of paragraph (61)(3)(c) of the Act constitutionally valid?
IV. Analysis
The constitutional and legal context of this dispute
[25] Judicial independence is one of the pillars upon which the Canadian Constitution rests and one of the foundations of democratic societies. It is entrenched in the preamble to the C.A., 1867, in section 11(d) of the Charter, and in unwritten constitutional principles. It has been discussed by the Supreme Court in numerous judgments in various contexts over the past 40 years, and its importance no longer needs to be demonstrated: see, in particular, Valente v. The Queen, [1985] 2 S.C.R. 673; The Queen v. Beauregard, [1986] 2 S.C.R. 56; Ruffo v. Conseil de la magistrature, [1995] 4 S.C.R. 267 [Ruffo]; Ref re Remuneration of Judges of the Prov. Court of P.E.I.; Ref re Independence and Impartiality of Judges of the Prov. Court of P.E.I., [1997] 3 S.C.R. 3; Therrien (Re), 2001 SCC 35, [2001] 2 S.C.R. 3 [Therrien]; Moreau-Bérubé v. New Brunswick (Judicial Council), 2002 SCC 11, [2002] 1 S.C.R. 249 [Moreau-Bérubé]; Mackin v. New Brunswick (Minister of Finance); Rice v. New Brunswick, 2002 SCC 13, [2002] 1 S.C.R. 405; Ell v. Alberta, 2003 SCC 35, [2003] 1 S.C.R. 857; Provincial Court Judges’ Assn. of New Brunswick v. New Brunswick (Minister of Justice); Ontario Judges’ Assn. v. Ontario (Management Board); Bodner v. Alberta; Conférence des juges du Québec v. Quebec (Attorney General); Minc v. Quebec (Attorney General), 2005 SCC 44, [2005] 2 S.C.R. 286; Conférence des juges de paix magistrats du Québec v. Quebec (Attorney General), 2016 SCC 39, [2016] 2 S.C.R. 116 [Conférence des juges de paix magistrats].
[26] The objective guarantees of judicial independence—security of tenure, financial security and administrative independence—are intended to promote public confidence in the administration of justice and to ensure the rule of law and the separation of powers. As stated by the Supreme Court in Conférence des juges de paix magistrats, “. . . judicial independence belongs not to judges, but to the public” (at para. 33). Similarly, this Court stated the following in Cosgrove v. Canadian Judicial Council, 2007 FCA 103, [2007] 4 F.C.R. 714 at paragraph 32 [Cosgrove]:
. . . judicial independence does not require that the conduct of judges be immune from scrutiny by the legislative and executive branches of government. On the contrary, an appropriate regime for the review of judicial conduct is essential to maintain public confidence in the judiciary: Moreau‑Bérubé v. New Brunswick (Judicial Council), 2002 SCC 11, [2002] 1 S.C.R. 249, at paragraphs 58-59.
[27] It is from this perspective that the Council was created in 1971, through amendments to the Act. Aware that it is not always easy to determine when the obligation of good behaviour under section 99 of the C.A., 1867 has been violated as well as which type of misconduct is serious enough to warrant the removal of a judge, Parliament created this body, which consists of all of the chief justices, senior associate chief justices, and associate chief justices of the superior courts. These provisions are now found in Part II of the Act, and one of the Council’s important objects is to investigate the conduct of judges (paragraph (60)(2)(c)). To fulfill this mandate, the Council investigates allegations of misconduct. When the allegations are serious enough to warrant a full inquiry, the Council conducts such an inquiry, at the end of which it provides a report to the Minister of Justice. In accordance with subsection 65(2), the Council may recommend the removal of a judge where, in its opinion, the judge has become incapacitated or disabled from the due execution of the office of judge by reason of
(a) age or infirmity,
(b) having been guilty of misconduct,
(c) having failed in the due execution of that office, or
(d) having been placed, by his or her conduct or otherwise, in a position incompatible with the due execution of that office.
[28] The Act is not explicit as to the procedure the Council must follow when investigating the conduct of a judge. It only provides that the Council may constitute an inquiry committee comprising one or more of its members together with such members, if any, of the bar, as may be designated by the Minister (subsection 63(3)). The parameters of the federal judiciary’s disciplinary process can, for the most part, be found in the 2015 By‑laws, enacted under the authority of paragraph 61(3)(c) of the Act, as well as in the Handbook of Practice and the Council’s Complaints Procedures.
[29] At paragraphs 47 to 65 of its reasons, the Federal Court aptly described the inquiry process and the respective roles of the review panel, the inquiry committee and the Council, such that there is no need for me to describe them again in detail. I will simply draw attention to certain aspects of the process, for a better understanding of what follows.
[30] A distinction must be drawn between inquiries and investigations. When the Minister of Justice or the attorney general of a province requests an inquiry into the conduct of a judge in accordance with subsection 63(1) of the Act, as was the case for the second inquiry, the Council must in principle conduct such an inquiry without going through the review panel step. This will apply unless the request does not allege bad faith or abuse of office, and does not on its face disclose an arguable case for removal: Cosgrove, at paragraph 52. However, for an investigation, any person may file a complaint against a judge: in such a case, the chairperson or vice‑chairperson of the Council’s Judicial Conduct Committee briefly examines the complaint and submits it to a review panel if he or she determines that the complaint might warrant the removal of the judge (2015 By‑laws, subsection 2(1)). This is the process that was followed for the first complaint, which was filed by the Chief Justice of the Superior Court of Québec.
[31] It is important to mention that the sole function of a review panel is to determine whether the complaint might be serious enough to warrant the removal of the judge. If so, an inquiry committee will be constituted and will consider the review panel’s written reasons and statement of issues (2015 By‑laws, subsection 5(1)).
[32] Subsection 63(3) of the Act provides that an inquiry committee comprises one or more of the Council’s members together with such members, if any, of the bar, as may be designated by the Minister of Justice. Subsection 3(1) of the 2015 By‑laws stipulates that an inquiry committee is composed of an uneven number of members, the majority of whom are from the Council. In practice, these committees consist of five people (three Council members and two members of the bar), and more rarely of three people (two Council members and one member of the bar). Under subsection 3(4) of the 2015 By‑laws, “a member of the . . . Review Panel who participated in the deliberations to decide whether an Inquiry Committee must be constituted” may not be a member of the inquiry committee. Lastly, section 4 of the 2015 By‑laws gives the inquiry committee the authority to engage legal counsel and other persons “to provide advice and to assist in the conduct of the inquiry”.
[33] An inquiry committee must conduct its inquiries or investigations in accordance with the principle of procedural fairness (2015 By‑laws, s. 7). Among other things, it must inform the judge of all complaints or allegations against him or her and allow the judge to respond fully to them (2015 By‑laws, subsections 5(2) and (3)). The judge subject to an inquiry or investigation, also has the right to be heard and to be represented by counsel (the Act, s. 64).
[34] After hearing the parties, the inquiry committee submits a report to the Council setting out the results of the inquiry and its findings as to whether a recommendation should be made for the judge’s removal. Only Council members who did not participate in the review panel or the inquiry committee or in any other previous step of the process may participate in the consideration of the inquiry committee’s report and in the deliberations (2015 By‑laws, s. 11). The Council may refer all or part of the matter back to the inquiry committee if it is of the opinion that the committee’s report requires a clarification or that a supplementary inquiry or investigation is necessary (2015 By‑laws, s. 12). After reviewing the committee’s report and the judge’s written submissions, the Council determines whether the impugned conduct meets the criteria set out in subsection 65(2) of the Act and whether a recommendation for the judge’s removal should be made to the Minister of Justice.
[35] That is an overview of the steps in the removal process, which is triggered by the filing of a complaint against a judge. As stated earlier, the review panel step is not required when the Minister or a provincial attorney general requests the constitution of an inquiry committee. It is then up to the Minister to determine whether to ask Parliament to remove the judge; this decision rests with the Minister, who is not bound by the Council’s recommendation.
[36] Before concluding this description, it is worth noting that the role of the Council and its committees is not to resolve a dispute between parties, much less to rule on the criminal culpability of a judge. Paragraph (60)(2)(c) of the Act provides that an object of the Council is to make the inquiries and the investigation of complaints or allegations and to make recommendations, like any commission of inquiry: see Douglas v. Canada (Attorney General), 2014 FC 299, [2015] 2 F.C.R. 911; Taylor v. Canada (Attorney General), 2001 FCT 1247, [2002] 3 F.C. 91, aff’d 2003 FCA 55, [2003] 3 F.C. 3, leave to appeal to S.C.C. refused, 2978 (September 25, 2003). The Supreme Court was very clear in this regard in Ruffo. While the comments made in that matter were in the context of the disciplinary process established by the Courts of Justice Act, CQLR, c. T‑16 (Courts of Justice Act), the relevant provisions of that regime are substantially to the same effect as the corresponding sections of the Act. It is relevant to reproduce the comments of the Court, which were also restated in Therrien (at para.103):
. . . Accordingly, as the statutory provisions quoted above illustrate, the 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.
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 [Courts of Justice Act] confers a pre‑eminent role in establishing rules of procedure, researching the facts and calling witnesses. Any idea of prosecution is thus structurally excluded. The complaint is merely what sets the process in motion. Its effect is not to initiate litigation between two parties. This means that where the Conseil decides to conduct an inquiry after examining a complaint lodged by one of its members, the Comité does not thereby become both judge and party: as I noted earlier, the 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.)