Girouard v. Canada (Attorney General)

Girouard v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2018-08-29
Neutral citation
2018 FC 865
File numbers
T-2110-15, T-409-18, T-423-17, T-733-15
Notes
A correction was made on June 4, 2019. Reported Decision
Decision Content
Date: 20180829
Dockets: T-733-15
T-2110-15
T-423-17
T-409-18
Citation: 2018 FC 865
Ottawa, Ontario, August 29, 2018
PRESENT: The Honourable Mr. Justice Simon Noël
BETWEEN:
THE HONOURABLE MICHEL GIROUARD
Applicant (Respondent)
and
THE ATTORNEY GENERAL OF CANADA
Respondent (Respondent)
and
THE CANADIAN JUDICIAL COUNCIL
Moving Party
and
THE ATTORNEY GENERAL OF QUEBEC
Third Party
ORDER AND REASONS
OUTLINE
I. OVERVIEW 2
II. PRELIMINARY REMARKS 4
III. FACTS 6
IV. BACKGROUND 9
V. PARTIES’ SUBMISSIONS 12
A. Are the CJC and the IC federal boards, commissions or other tribunals as defined by the FCA? 12
B. Do paragraphs 63(4)(a) and (b) of the JA grant the CJC and the IC the status of a superior court, thereby placing them beyond the reach of judicial review? 15
(1) Legislative history and the intent of Parliament 17
(2) Is the CJC the body of appeal for the reports and conclusions of the IC? 19
C. Are the reports and conclusions of the CJC and the IC subject to judicial review by the Federal Court? 20
VI. DOUGLAS (2014) 21
VII. LEGISLATIVE PROVISIONS 24
VIII. QUESTIONS OF LAW 29
IX. ANALYSIS 30
A. Are the CJC and the IC federal boards, commissions or other tribunals as defined by the FCA? 30
(1) Overview of the relevant legislation 30
(2) Does the CJC’s membership exclude it from the definition of a federal board, commission or other tribunal? 36
(3) What is the test for determining whether a body is a federal board, commission or other tribunal, and do the CJC and the IC satisfy this test? 43
(4) Does the CJC have a source of constitutional power codified by an enactment of Parliament? 51
B. Do paragraphs 63(4)(a) and (b) of the JA grant the CJC and the IC the status of a superior court, thereby placing them beyond the reach of judicial review? 54
(1) The judiciary and courts of superior jurisdiction 55
(2) Analysis of sections dealing with “inquiries concerning judges” in the JA 61
(a) Principles of interpretation 62
(b) Legislative history and the intent of Parliament 64
(c) Literal interpretation of the sections at issue 72
(d) Does the power to investigate judges include an internal appeal mechanism for the reports and conclusions of the IC that is analogous to an appeal de novo? 76
C. Are the CJC’s and the IC’s reports and conclusions subject to the judicial review power of the Federal Court? 81
X. Comments and conclusion 85
A. Comments 85
B. Conclusion 89
I.
OVERVIEW
[1] Pursuant to section 221 of the Federal Courts Rules, SOR/98-106 (Rules), before this Court there are motions to strike the applications for judicial review filed in accordance with section 18.1 of the Federal Courts Act, RSC 1985, c F-7 (FCA), by the applicant, the Honourable Justice Michel Girouard of the Superior Court of Quebec. The subjects of the underlying applications for judicial review are a report submitted by the Canadian Judicial Council (CJC) following an inquiry into the conduct of Justice Girouard recommending his removal to the Minister of Justice Canada (Minister), as well as an initial report by an Inquiry Committee (IC) of the CJC and other decisions made in the course of inquiries into Justice Girouard’s conduct. The moving party in this case, the CJC, submits that the Court should allow the motions to strike the applications for judicial review on the grounds that the Federal Court has no jurisdiction to grant a remedy against the CJC or its IC. According to the CJC, it and its constituent bodies do not constitute a “federal board, commission or other tribunal” subject to review under section 2 of the FCA. The CJC also alleges that the Judges Act, RSC 1985, c J-1 (JA), grants the CJC the status of a superior court.
[2] For the reasons that follow, I am of the view that the motions to strike must be dismissed. The CJC, of which the IC is a part, is in fact a “federal board, commission or other tribunal” within the meaning of the definition contained in section 2 of the FCA. This means that the CJC’s reports with conclusions and its recommendations, as well as the decisions made in the course of an inquiry by the IC, are subject to the judicial review mechanisms set out in section 18.1 of the FCA. Moreover, paragraphs 63(4)(a) and (b) of the JA do not grant the CJC the status of a superior court, nor do they exempt the CJC from judicial review by the Federal Court. It should be noted that, even though the CJC’s report was simply a recommendation to the Minister that the judge be removed, I still consider it reviewable by the Federal Court.
[3] Finally, for the purpose of this case, I would like to point out some notable absences, including the Canadian Superior Court Judges Association, a representative of appointees who hold office during good behaviour (the record does not reveal whether such appointments still exist), and the complainant. I would have appreciated hearing their respective points of view on the issue at hand because the arguments raised have significant consequences for them.
[4] At the start of these judicial review proceedings, the Honourable Chief Justice Paul Crampton asked me to take charge of them given his involvement as a member of the first IC into Justice Girouard’s conduct. Furthermore, I have been acting as case manager from the beginning, handling all of the procedural issues relating to the orderly conduct of the files. I also decided, and informed the parties, that the applications for judicial review on the merits would be considered by the Honourable Justice Paul Rouleau of the Court of Appeal for Ontario, appointed as a deputy judge under subsection 10(1.1) of the FCA.
II. PRELIMINARY REMARKS
[5] I will begin by addressing the CJC’s rather peculiar argument that it and its IC, constituted to inquire into the judge’s conduct, are deemed to be a superior court, thus placing them [translation] “beyond judicial review”. I also note that the CJC claims to have an [translation] “internal appeal mechanism that safeguards procedural fairness even more robustly than final appeals to the Supreme Court, made up of nine judges; the Council is made up of at least seventeen judges, all chief justices or associate chief justices possessing indisputable expertise in matters concerning the administration of justice” (CJC’s memorandum at para 102). According to this theory, the CJC considers itself not only the investigator into judicial conduct, but also the body with the jurisdiction to hear the appeal of its own report, making it both the initial and the final authority. According to the arguments submitted by the CJC, its report and recommendation regarding Justice Girouard are final: it is not open to Justice Girouard to appeal or to apply for judicial review. This would also mean that the CJC’s report and recommendation are immune from any attempt to remedy a breach of procedural fairness. It should be noted that the most recent report on Justice Girouard’s conduct (dated February 2018) includes a dissent by three chief justices who state that the majority decision contains a breach of procedural fairness (see para 16).
[6] I cannot agree with the CJC’s position. It is undeniable that a report recommending the removal of a judge has a serious impact on that judge, professionally and personally, and on his or her family. It is inconceivable that a single body, with no independent supervision and beyond the reach of all judicial review, may decide a person’s fate on its own. Of course it is true that, in our society, the position of judge requires exemplary conduct, but is this a reason to render it subject to a single investigative body and to eliminate any possibility of recourse against the decision resulting from the inquiry? In my opinion, it is not. However prestigious and experienced a body may be, it is not immune from human error and may commit a major violation of the principles of procedural fairness that only an external tribunal, such as the Federal Court in this case, can remedy. As Justice Stratas of the Federal Court of Appeal recently recalled, such absolute power has no place within our democracy:
In our system of governance, all holders of public power, even the most powerful of them—the Governor-General, the Prime Minister, Ministers, the Cabinet, Chief Justices and puisne judges, Deputy Ministers, and so on—must obey the law ... . From this, just as night follows day, two corollaries must follow. First, there must be an umpire who can meaningfully assess whether the law has been obeyed and grant appropriate relief. Second, both the umpire and the assessment must be fully independent from the body being reviewed.
(Canada (Citizenship and Immigration) v Tennant, 2018 FCA 132 at para 23; see also Tsleil-Waututh Nation v Canada (Attorney General), 2018 FCA 128 at para 78)
[7] Therefore, as per the fundamental principles of our democracy, all those who exercise public power, regardless of their status or the importance of their titles, must be subject to independent review and held accountable as appropriate. This also goes for the CJC and the chief justices who make up its membership.
III. FACTS
[8] Justice Girouard was appointed to the Superior Court of Quebec in 2010 and sat in the districts of Abitibi, Rouyn-Noranda and Témiscamingue. He has been suspended with pay since January 2013. For over five years now (the first complaint was filed in November 2012, and the CJC only rendered its report on the second complaint in February 2018), while the case has been winding its way through two full inquiries, two reports to the Minister (the first of which was submitted in April 2016) and several proceedings before the courts, the judicial complement in these districts has been considerably reduced.
[9] The event triggering this saga occurred in the fall of 2012, when the Director of Criminal and Penal Prosecutions informed the then Chief Justice of the Superior Court of Quebec, the Honourable François Rolland, that the applicant had been identified by a drug trafficker turned informant as a former client. In September 2010, a few weeks before his appointment to the judiciary, Justice Girouard was allegedly captured on video in the process of purchasing an illicit substance. Later, on November 30, 2012, Chief Justice Rolland asked the CJC to review Justice Girouard’s conduct.
[10] In October 2013, the CJC first established a review committee to consider the complaint and have a preliminary inquiry conducted by outside counsel. It was in February 2014 that the CJC constituted an inquiry committee (First Inquiry Committee) in accordance with subsection 63(4) of the JA to conduct a full inquiry into the complaint received.
[11] The First Inquiry Committee rejected all of the allegations against Justice Girouard, being unable to establish, on a balance of probabilities, that the video was proof of a transaction involving an illicit substance. However, a majority of the members of the First Inquiry Committee questioned the reliability and credibility of the version of the facts related by Justice Girouard. The majority had identified several contradictions, inconsistencies and implausibilities in the evidence regarding the transaction captured on video.
[12] The CJC accepted the conclusion of the First Inquiry Committee regarding the video. However, the CJC did not take into account the First Inquiry Committee’s observations about Justice Girouard’s credibility. The report was submitted to the Minister in April 2016. More than three years had elapsed since the initial complaint had been filed.
[13] In June 2016, the Minister and the Minister of Justice of Quebec filed a joint complaint with the CJC regarding Justice Girouard’s conduct in the course of this disciplinary proceeding. More specifically, this new complaint related to Justice Girouard’s credibility, or lack thereof, during the inquiry. This complaint also triggered a mandatory inquiry pursuant to subsection 63(1) of the JA, and a new inquiry committee (Second Inquiry Committee) was convened.
[14] The Second Inquiry Committee examined the transcript of the hearing before the First Inquiry Committee and heard new testimony over the course of eight days of hearings. The Second Inquiry Committee concluded it appropriate to accept the findings of the majority of the First Inquiry Committee only if it was shown that they were both free from error and reasonable, and only to the extent they withstood its own assessment of the evidence deemed reliable.
[15] In its report dated November 6, 2017, the Second Inquiry Committee held 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 First Inquiry Committee, namely:
(1) He failed to cooperate with transparency and forthrightness in the First Inquiry Committee’s inquiry.
(2) He failed to testify with transparency and integrity during the First Inquiry Committee’s inquiry.
(3) He attempted to mislead the First Inquiry Committee by concealing the truth.
[16] In its report to the Minister dated February 20, 2018, the CJC adopted the findings of the Second Inquiry Committee to the effect that the judge’s misconduct had undermined the integrity of the judicial system and struck at the heart of the public’s confidence in the judiciary. On this basis, it concluded that Justice Girouard had become incapacitated and disabled from the due execution of the office of judge. However, three dissenting members opposed Justice Girouard’s removal. They found that his right to a fair hearing had not been respected, as certain unilingual Anglophone members of the CJC had allegedly been unable to evaluate the entire record, which included documents available in French only.
[17] One fact jumps out: for the second report, the inquiry lasted more than 20 months. In total, the CJC spent more than five years investigating Justice Girouard, from November 2012 to February 2018.
IV. BACKGROUND
[18] Some may claim that the above-mentioned delays can be partly explained by the fact that Justice Girouard filed no fewer than 24 applications for judicial review with the Federal Court seeking, among other things, the setting aside of the decisions of the First or Second Inquiry Committee, the CJC and the Minister. However, it should be noted that the judicial proceedings resulting in an order did not interrupt the CJC inquiries.
[19] On May 4, 2017, in Girouard v Canada (Attorney General), 2017 FC 449 [Girouard], this Court refused to allow the application for a stay of the inquiry process regarding Justice Girouard, the applicant in those proceedings. The Court also dismissed the motion to amend the applications for judicial review and stayed the proceedings in 20 of the judicial review files. At paragraph 65 of the reasons in Girouard, the Court also noted that both Justice Girouard and the CJC still had their rights and remedies before the Federal Court. During the submissions before this Court with respect to the motion for a stay, the CJC and the IC, duly represented, did not challenge the Court’s jurisdiction. The CJC and the IC wished for the review of Justice Girouard’s conduct to continue. Now that the time has come to move forward with the judicial reviews, the CJC has decided to raise the issue of the Court’s jurisdiction. It seems to me that as an institution responsible for promoting efficiency, consistency and accountability in Canada’s superior courts, the CJC should not be adopting whichever stance is most convenient at the time.
[20] On May 3, 2018, the Court issued an order referring to several withdrawals made by Justice Girouard. He had begun by abandoning 16 of his applications, the grounds of which were covered by those raised in support of the subsequent application bearing file number T-409-18. He also abandoned three other applications that had become moot. The Court also ordered that files T-733-15, T-2110-15, T-423-17 and T-409-18 be consolidated. In the same spirit of consolidation, the Court was informed in the course of the proceedings and at the hearing that Justice Girouard was discontinuing proceedings raising a constitutional question before the Superior Court and would instead submit the question to the Federal Court. In the case of file T-409-18, the CJC received a request on March 2, 2018, from Justice Girouard under section 317 of the Rules seeking the transmission of his investigation file by March 22, 2018.
[21] Just prior to a case management conference held on April 19, 2018, the Registry received an email from Normand Sabourin, Director and Senior General Counsel of the CJC, addressed to the registrar responsible for the file, informing her for the first time that the CJC did not intend to file the decision maker’s record with the Court. In the same email, the CJC also informed the Court that it did not recognize its jurisdiction to hear the applications for judicial review of its decisions and that, accordingly, it would not comply with the Rules. The CJC also asked that all future communication henceforth be directed to the Right Honourable Richard Wagner, Chairperson of the CJC.
[22] On April 19, 2018, the Court issued an order instructing the CJC to comply with the Rules and file its decision maker’s record, which it had originally been ordered to do by March 22, 2018.
[23] On April 30, 2018, in accordance with subsection 318(2) of the Rules, the CJC, through its counsel, informed the Chief Administrator of the Federal Court and the other parties that it opposed the request for transmission of the file on the grounds that it was not a “federal board, commission or other tribunal” within the meaning of the FCA and that, accordingly, this Court did not have the necessary jurisdiction to declare against it the remedies set out in subsection 18(1) of that statute.
[24] In an order dated May 9, 2018, the Court granted party status to the CJC for the sole purpose of debating the jurisdiction issue and ordered the latter to file this motion to strike the remaining applications for judicial review as well as a motion to determine the CJC’s challenge regarding the filing of its complete record concerning Justice Girouard.
[25] On May 15, 2018, this Court ordered struck from the style of cause of the applications for judicial review the names of the “Inquiry Committee regarding the Honourable Michel Girouard” and the “Canadian Judicial Council”, although their party status continued to be recognized for the purposes of this motion to strike. It should be noted that, given the CJC’s failure to raise the jurisdiction issue in a timely manner, approximately two months had passed since March 22, 2018, the date by which the CJC was to have initially filed its record.
[26] As will be seen below, the issue of the Federal Court’s jurisdiction has already been fully analyzed and resolved in Douglas v Canada (Attorney General), 2014 FC 299 [Douglas], rendered by Justice Mosley on March 28, 2014. The CJC appealed Justice Mosley’s decision and then withdrew its appeal, even though the appeal record was almost ready for hearing by the Federal Court of Appeal. The CJC is now back on the offensive, armed with essentially the same arguments it had raised before Justice Mosley four years ago.
V. PARTIES’ SUBMISSIONS
[27] What follows is a summary of the principal arguments raised by the parties.
A. Are the CJC and the IC federal boards, commissions or other tribunals as defined by the FCA?
[28] The CJC claims to be beyond the jurisdiction of the Federal Court in matters of judicial review because, in its view, it does not fall within the definition of “federal board, commission or other tribunal” as set out in subsection 2(1) of the FCA. The Attorney General of Canada (AGC) and Justice Girouard oppose this claim.
[29] The CJC claims that the Court in Douglas did not consider the interpretation of sections 2 and 18 of the FCA in light of the unique role played by the CJC in the Canadian constitutional order. The CJC’s view is that the source of its jurisdiction with respect to its role as overseer of the conduct of judges and judicial discipline is not a statute adopted by the Parliament of Canada (Parliament)—the JA—but rather section 99 of the Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, reprinted in RSC 1985, Appendix II, No 5 (CA 1867). The CJC considers its jurisdiction to be inherent in the principle of judicial independence. Therefore, it argues, the JA is a codification of a constitutional authority establishing the judicial branch in accordance with the separation of powers doctrine. According to the CJC, the fact that a federal statute governing the exercise of this authority exists does not change the purported constitutional nature of this jurisdiction.
[30] Moreover, the CJC states that it is made up of persons appointed under section 96 of the CA 1867. In the CJC’s view, its inclusion in the definition of federal board, commission or other tribunal would have the unacceptable effect of subjecting a group of superior court judges to the Federal Court’s judicial review procedures; the CJC alleges that this would be contrary to the exception set out in section 2 of the FCA. The CJC argues that if Parliament had intended to grant the Federal Court jurisdiction to oversee superior court judges, this power would have been expressly provided in the FCA, its enabling statute. The CJC adds that the definition of a federal board, commission or other tribunal must be interpreted in such a way as to exclude judges appointed under section 96 as well as those appointed under section 101 of the CA 1867 when the latter are acting as judges with the same powers as superior court judges.
[31] In response to the positions taken by the CJC, Justice Girouard notes that both the Federal Court of Appeal and the Federal Court have already ruled on the issue of the CJC’s status in Crowe v Canada (Attorney General), 2008 FCA 298, and Douglas. Indeed, writes Justice Girouard, it has already been determined that the CJC is a “federal board, commission or other tribunal” and that this Court has jurisdiction to hear applications for judicial review of the CJC’s decisions. Justice Girouard therefore argues that, based on the principle of stare decisis and judicial comity, this Court should respect the decisions rendered on this issue. According to Justice Girouard’s position, the status quo of the JA following Douglas is all the more indicative of Parliament’s intent not to confer on the CJC a status other than that of federal board, commission or other tribunal.
[32] The AGC and Justice Girouard submit that the CJC was created by its enabling statute, the JA adopted by Parliament, and that its jurisdiction derives entirely from that statute. For the ACG and Justice Girouard, it follows that the CJC was not created by the CA 1867; its sole powers, therefore, are those conferred upon it by Parliament through the JA. The AGC and Justice Girouard argue, therefore, that Parliament could repeal or modify the role and composition of the CJC, or even the conduct review process, in accordance with the ordinary legislative mechanisms.
[33] The AGC submits that the fact that the bodies of the CJC are largely composed of judges appointed under section 96 of the CA 1867 does nothing to change their status. According to the AGC, the bodies of the CJC exist solely as statutory bodies, and not on the basis of some inherent jurisdiction arising from the judicial status of its members. The AGC points out that a judge working within or for the CJC as an investigator is comparable to a judge appointed as a commissioner under the Inquiries Act, RSC 1985, c I-11 [IA], on whom Parliament confers the powers “vested in any court of record in civil cases” (s 5). The AGC notes that the CJC judges do not act as judges, but rather as members of a statutory body with a mandate that includes investigating the conduct of judges and filing a report and, if appropriate, a recommendation.
[34] Justice Girouard, on the other hand, submits that the judges belonging to the CJC are members in their capacity as chief justices, an administrative role, rather in their capacity as judges appointed under section 96 of the CA 1867. A judge exercising true judicial functions would not be acting as a “member” as is stated in the JA, nor could he or she appoint a “substitute”, as is possible in this case, because of the personal nature of the office of judge. The CJC’s response to this is that judges charged with an inquiry into a judge’s conduct are exercising judicial jurisdiction: if a statute confers a power upon a judge, the judge must be presumed to exercise judicial jurisdiction, absent a provision to the contrary.
B. Do paragraphs 63(4)(a) and (b) of the JA grant the CJC and the IC the status of a superior court, thereby placing them beyond the reach of judicial review?
[35] The CJC submits that the deeming provision in subsection 63(4) of the JA creates a legal fiction that the CJC is deemed to be a superior court in making inquiries into the conduct of judges. While Parliament has often granted administrative tribunals some of the powers of a superior court of record, the relevant provisions rarely indicate that the tribunal is deemed to be a superior court, unlike what is indicated in subsection 63(4). According to the CJC, these decisions, deemed to be the decisions of a superior court, can only be challenged if there is an express right of appeal to a court of appeal, since the validity of contradictory decisions of two superior courts would be impossible to determine.
[36] In response, the AGC and Justice Girouard both argue that if Parliament had wished to create a superior court, it would have done so explicitly under section 101 of the CA 1867, as it did for the Tax Court of Canada (see, in particular, section 3 of the Tax Court of Canada Act, RSC 1985, c T-2 (TCCA)). For the AGC and Justice Girouard, subsection 63(4) of the JA therefore simply confers upon the CJC and its inquiry committees the powers of a superior court in order to facilitate their inquiries; however, this provision does not have the effect of creating a superior court or eliminating the possibility of judicial review by the Federal Court. To this, the CJC replies that the original bill that was to become the JA already accomplished the objective of conferring on it the powers of a superior court for the purposes of carrying out its investigations. The CJC emphasizes that Parliament allegedly amended the original bill to add the broader deeming provision.
[37] However, Justice Girouard is of the view that the CJC cannot be characterized as a superior court because it has none of the constitutional attributes of the provincial superior courts. He goes on to argue that none of the superior courts created by a statute adopted by Parliament have either the inherent jurisdiction possessed solely by provincial superior courts or the superintending and reforming power over government action and lower court decisions.
[38] The AGC submits that Parliament did not choose to adopt a provision that had the effect of constituting a superior court. In the AGC’s view, a provision conferring the powers of a superior court on an administrative tribunal must be narrowly interpreted: the narrowest interpretation required to achieve the purpose of the Act should prevail. Therefore, according to Justice Girouard, subsection 63(4) of the JA must be interpreted as the “chapeau” of a provision that simply enumerates the powers and duties conferred upon the CJC and its IC to facilitate the exercise of one of their powers: that of making inquiries relating to judges (see s 60 of the JA).
(1) Legislative history and the intent of Parliament
[39] According to the CJC, the legislative history demonstrates that Parliament’s intent was for the CJC to be deemed a superior court to enable it to discharge its duties independently during investigations into judicial conduct, without interference from the executive or legislative branches. According to Justice Girouard, however, the history of the JA demonstrates instead that members of the CJC do not exercise their duties in their capacity as judges. He notes that previously the judges had the status of commissioners with powers of investigation into the conduct of other judges; for Justice Girouard, the addition of the deeming provision could not have had the effect of substantially modifying the role envisioned for the “commissioners”. In reply to this argument, the CJC submits that Parliament eliminated from Part II of the JA—containing subsection 63(4) setting out the CJC’s powers of inquiry—any mention of the words “commission” and “commissioner”. The CJC submits that this amendment must be given effect.
[40] The AGC submits that Parliament simply wished to grant the CJC and its inquiry committees immunity from prosecution through the deeming provision. For the CJC, this argument implies that the CJC and its committees would have no immunity with respect to the findings in their reports, as the findings are rendered after the inquiry. The CJC is of the view that it already enjoys the constitutional protections guaranteed by judicial independence, which includes the freedom to express itself and render judgment without outside pressure or influence. Moreover, the CJC submits that if one accepts that the deeming provision grants judicial immunity to it and to its inquiry committees, one must accept that the provision may also bestow upon them the attributes of a superior court.
[41] The CJC also argues that the Federal Court’s jurisdiction is a limited one. According to the CJC, because the Federal Court lacks the inherent jurisdiction of the provincial superior courts, it is the FCA that exhaustively establishes the scope of its jurisdiction. The CJC notes that section 18 of the FCA establishes the power of judicial review over the lower courts; however, it writes, when Parliament legislates that a court is not a lower court because it is deemed to be a superior court, it is necessary to take this statement into account when interpreting the jurisdiction over judicial review set out in section 18.
[42] With supporting documents, the AGC explained during oral argument that until 1971, there was no specific legislation applicable to the investigation of the conduct of superior court judges. The Act respecting the Judges of Provincial Courts, RSC 1886, c 138, and subsequent legislation did not concern superior court judges. Therefore, the first statute dealing with inquiries into the conduct of superior court judges was the first version of the JA, adopted in 1971. As we shall see, the Governor in Council invoked the IA to inquire into the conduct of judges and appointed the investigator.
(2) Is the CJC the body of appeal for the reports and conclusions of the IC?
[43] The CJC submits that judicial review is unnecessary, as its own internal procedures already include a mechanism analogous to an appeal de novo. It argues that, because judicial review exists to strike a balance between legislative intent and the rule of law, the intent of Parliament in the case of the removal of judges was to maintain the CJC’s ultimate authority in the matter of the removal of judges while respecting the principle of separation of powers, which dictates that Parliament cannot, despite its final authority, remove a judge unilaterally.
[44] Justice Girouard disagrees with the CJC’s claims in this regard. Regarding the possibility of an internal appeal, he states that in common law, appeals do not exist and that all appeals are legislative creations. In this case, he argues, the appeal regime proposed by the CJC has not been adopted by Parliament. Justice Girouard specifies that subsection 63(3) of the JA states that the IC is formed at the CJC’s request; the CJC’s role, he claims, is therefore not to conduct an appeal, but rather to review the report submitted by the IC.
[45] Both the AGC and Justice Girouard submit that, without judicial review, judges under inquiry by the CJC would be deprived of their right to challenge the fairness of the proceedings. The AGC and Justice Girouard are of the view that the judicial review of a recommendation by the CJC would give the Minister and Parliament assurance that the process followed by the CJC is fair and in accordance with the rule of law. They note that, if the procedures followed by the CJC were not subject to the Federal Court’s superintending power, the Minister and Parliament would be forced to evaluate these elements; however, argue the AGC and Justice Girouard, they have neither the mandate nor the expertise to review recommendations made by the CJC, and this is equally true for questions of jurisdiction or fairness as it is for questions of law. The AGC and Justice Girouard add that it cannot be the case that Parliament wished to preclude all possible remedies, especially given the seriousness of the consequences of a recommendation that the judge under inquiry be removed.
[46] According to Justice Girouard, for the Minister to be able to fulfill her constitutional role and decide to refer the issue of a judge’s removal to Parliament, she must rely on an inquiry that has been conducted in accordance with the JA and the principles of procedural fairness.
C. Are the reports and conclusions of the CJC and the IC subject to judicial review by the Federal Court?
[47] Finally, it is the CJC’s position that the recommendation that it must submit in the context of an inquiry and the subsequent report are not subject to judicial review. The CJC maintains that, although it can form an IC to conduct an inquiry, the CJC can do nothing more than recommend removal to the Minister. The CJC therefore has no power to render an enforceable decision to order a judge’s removal, as this constitutional power lies exclusively with Parliament.
[48] The AGC and Justice Girouard submit that what is important in determining whether a decision is subject to judicial review is whether a person’s rights are directly affected by it. Justice Girouard adds that the CJC’s activities cannot be reduced to the mere filing of a recommendation, ignoring the long inquiry process leading up to such a recommendation. Justice Girouard raises the point that the inquiry leading up to the report must respect procedural fairness, given the direct impact on the rights and interests of the judge. Moreover, he states, respect for the principles of natural justice or procedural fairness falls expressly within the scope of the Federal Court’s supervisory authority under paragraph 18.1(4)(b) of the FCA.
VI. DOUGLAS (2014)
[49] It is important to note the following: almost all of the issues that the Court will address in this decision were analyzed and ruled upon by Justice Mosley in 2014 in Douglas. As an intervener with the same status as the Canadian Superior Court Judges Association, the CJC challenged the Federal Court’s jurisdiction to hear applications for judicial review of the reports and decisions of the CJC and its constituent bodies. As mentioned in the previous section on the background of this case, the CJC had appealed the judgment in Douglas and subsequently withdrawn its appeal. Although the file between Justice Douglas, the AGC and the CJC was settled, the CJC could still have asked the Federal Court of Appeal to hear its arguments and decide the jurisdictional issue, especially given how determinative the CJC claims the issue to be. There was still a live issue between the CJC and the AGC (see Borowski v Canada (Attorney General), [1989] 1 SCR 342 at pp 353-63). Justice Mosley had carefully studied the merits of the CJC’s and the AGC’s arguments; in fact, approximately 120 of the more than 200 paragraphs of the judgement dealt with the issue of jurisdiction. Furthermore, there had been three days of hearings; needless to say, a considerable investment of resources had been made by the court and by counsel.
[50] I will simply reiterate a few of Justice Mosley’s key findings. On the subject of the CJC and its constituent bodies, Justice Mosley found the following:
(1) The CJC satisfies the test for determining whether a body is a federal board, commission or other tribunal (paras 80 et seq).
(2) The CJC includes not only chief justices appointed under section 96 of the CA 1867, but also a large number of chief justices appointed under section 101 of that statute (para 83).
(3) The chief justices, when exercising functions within the CJC, are not acting in their capacity as superior court judges (paras 84-86).
(4) Parliament has amended the definition of “federal board, commission or other tribunal” on several occasions to specify exclusions (para 78).
(5) The inclusion of representatives of the bar, all lawyers, within the IC appears to indicate that the latter is not a body of the CJC that constitutes a superior court (para 110).
(6) It was open to Parliament to create the CJC as a court under section 101 of the CA 1867, but it did not do so (para 99).
(7) Judicial independence does not require that the decisions of the CJC and the IC be immune from judicial review by the Federal Court (para 114).
[51] Regarding the interpretation of subsection 63(4) of the JA and its paragraphs (a) and (b), Justice Mosley found the following:
(1) The parliamentary debates show that the purpose of the powers of inquiry conferred upon the CJC and the IC in the JA, including any mention of a “superior court”, was to grant immunity to decisions or statements made in the course of the inquiry (para 103).
(2) The legislative context of subsection 63(4), namely the marginal notes and their placement, is indicative of its limited scope (paras 105 et seq).
(3) Parliament chose to grant the CJC the powers of a superior court without making it a court because, if it had intended to transform the CJC and its IC into a superior court, it would have said so directly without using the word “deemed” (para 115).
[52] On the inquiry process as a whole, Justice Mosley made the following comments:
(1) It is the responsibility of the IC to conduct inquiries into the conduct of judges; it is then for the CJC to decide whether to confirm its findings. If the CJC is correct in its assertion that its report and recommendations are subject to judicial review, but not the process leading up to their adoption, the “anomalous situation” would result that neither the beginning nor the end of the process would be excluded from review but only those parts where procedural fairness is of greatest concern (paras 108-09).
(2) Conducting inquiries is not an attribute of the jurisdiction of a superior court, as such a proceeding is inquisitorial in nature. Inquiring into the conduct of a judge is not a judicial function (paras 118 et seq).
(3) The CJC, in inquiring into the conduct of a judge, is accountable as the holder of a public power. It must account for its actions and so is not immunized against breaches of procedural fairness. It is subject to supervision. The judge being investigated is entitled to a fair hearing (paras 119-20).
(4) The supervisory power of the Federal Court is essential to the respect of judicial security of tenure. Parliament is not an institution that may be called upon to re-examine any claims the judge make regarding the inquiry undertaken by the CJC (paras 121-23).
[53] This provides only a summary. Douglas presents an in-depth examination of the issue of the Federal Court’s jurisdiction with respect to judicial review of the CJC’s process and decisions. Justice Mosley’s findings on this issue are correct. In the following sec