Cosgrove v. Canadian Judicial Council

Cosgrove v. Canadian Judicial Council
Court (s) Database
Federal Court Decisions
Date
2005-10-26
Neutral citation
2005 FC 1454
File numbers
T-101-05
Notes
Reported Decision
Decision Content
Date: 20051026
Docket: T-101-05
Citation: 2005 FC 1454
Ottawa, Ontario, October 26, 2005
PRESENT: THE HONOURABLE MADAM JUSTICE MACTAVISH
BETWEEN:
THE HONOURABLE MR. JUSTICE PAUL COSGROVE
Applicant
and
THE CANADIAN JUDICIAL COUNCIL AND
THE ATTORNEY GENERAL OF CANADA
Respondents
and
THE ATTORNEY GENERAL OF ONTARIO
THE CANADIAN SUPERIOR COURTS JUDGES' ASSOCIATION
THE CRIMINAL LAWYERS' ASSOCIATION AND
THE CANADIAN COUNCIL OF CRIMINAL DEFENCE LAWYERS
Interveners
REASONS FOR ORDER AND ORDER
TABLE OF CONTENTS
PARA.
I. Introduction.........................................................................................2
II. Background.........................................................................................7
III. The Elliott Trial....................................................................................9
IV. The Decision of the Ontario Court of Appeal.................................................13
V. The Attorney General's Request ..............................................................20
VI. Proceedings Before the CJC and the Inquiry Committee...............................................25
VII. The Inquiry Committee's Decision............................................................33
VIII. The Issues Before the Court.....................................................................42
IX. The Standard of Review.........................................................................43
X. Did the Inquiry Committee Err in Determining That Subsection 63(1)
of the Judges Act is Valid as it Does Not Infringe the Constitutionally
Protected Independence of the Judiciary?..........................................................................54
i) The Scheme of the Judges Act and the Judicial Discipline Process...............55
ii) The Experience With the Complaints Process for Federally
Appointed Judges.......................................................................86
iii) The Nature, Purpose and Content of Judicial Independence.......................91
iv) Analysis.................................................................................105 a) Does 63(1) of the Judges Act in Fact have a Chilling Effect on
On Judges.................................................................................................110
b) The Potential for Political Interference....................................120
c) The Impact of the Inquiry Process on Judges..............................125
d) The Procedural Safeguards in the Inquiry and CJC Processes............131
e) The Role of the Attorney General in the Justice System.................135
f) The Presumption of Good Faith.............................................143
g) The CJC's Screening Process as an 'Institutional Filter'.................147
h) The Inquiry Process as an 'Institutional Filter'............................152
i) The Purpose Served by Subsection 63(1) of the Judges Act.............156
j) Conclusion.....................................................................166
XI. Did the Inquiry Committee Err in Determining That S. 63(1) of the Judges Act
Not Infringe Section 2(b) of the Charter in a Manner That Cannot Be Justified
under Section 1?................................................................................................................172
XII. Conclusion........................................................................................176
XIII. Order..............................................................................................180
[1] While judicial accountability and judicial independence are each essential to the maintenance of public confidence in our justice system, the two do not always co-exist comfortably. At issue in this application is whether a provision of the Judges Act intended to ensure judicial accountability is invalid as an impermissible infringement of judicial independence.
Introduction
[2] Anyone who is of the view that a federally-appointed judge has misconducted him- or herself is entitled to complain to the Canadian Judicial Council ("CJC"). In most cases, the complaint will be subjected to an initial screening process within the CJC itself. An inquiry into the judge's conduct will only be held where the CJC determines that the matter may be sufficiently serious as to potentially warrant the judge's removal from office.
[3] However, where a request is made by the federal Minister of Justice or by a provincial attorney general, subsection 63(1) of the Judges Act, R.S.C. 1985, c. J-1, mandates that the CJC inquire into the judge's conduct. As a result, these requests automatically bypass the CJC's initial triage or screening process.
[4] In April of 2004, the Attorney General of Ontario requested that an inquiry be commenced into the conduct of Justice Paul Cosgrove. At the commencement of the inquiry, Justice Cosgrove brought an application challenging the validity of subsection 63(1) of the Judges Act, asserting that it infringes the constitutionally protected independence of the judiciary. Justice Cosgrove further argued that the provision also violates his right to freedom of expression, contrary to subsection 2(b) 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, and that it does so in a way that cannot be justified under section 1 of the Charter.
[5] Justice Cosgrove's application was rejected by the Inquiry Committee. This is an application to judicially review the Committee's decision. While acknowledging that judges do not act with impunity, and must be accountable for their misconduct, Justice Cosgrove nevertheless submits that the Inquiry Committee erred in law in finding that subsection 63(1) of the Judges Act was constitutionally valid, and that, as a consequence, the decision should be quashed. He further seeks a declaration that subsection 63(1) of the Judges Act violates the Constitution Act, 1867, (U.K.), 30 & 31 Vict., c.3, reprinted in R.S.C. 1985, App. II, No.5, as well as section 2(b) of the Charter, and is therefore invalid.
[6] For the reasons that follow, I find that insofar as subsection 63(1) of the Judges Act
confers the right on a provincial attorney general to compel the CJC to inquire into the conduct of a judge, the provision does not meet the minimal standards required to ensure respect for the principle of judicial independence, and is thus invalid.
Background
[7] Justice Cosgrove was appointed to Ontario County Court in 1984. As a result of the restructuring of the courts of Ontario, he sits on what is now known as the Superior Court of Ontario, in the Eastern Ontario Region.
[8] Since 1984, Justice Cosgrove has presided over hundreds, if not thousands, of matters, including hundreds of matters involving the Attorney General of Ontario as a litigant.
The Elliott Trial
[9] In September of 1997, Justice Cosgrove began hearing preliminary motions in relation to the trial of Julia Elliott, who was charged with second degree murder and interference with a dead body. Although the trial was originally projected to last five to six weeks, the proceedings against Ms. Elliott continued over the next two years, culminating in a stay of proceedings being granted by Justice Cosgrove on September 7, 1999. Justice Cosgrove also ordered that the Crown pay Ms. Elliott's legal costs from the outset of the proceedings.
[10] Over the course of the Elliott trial, Justice Cosgrove found that there had been in excess of 150 violations of Ms. Elliott's Charter rights, thereby compromising her right to a fair trial. Amongst those implicated in the Charter violations were 11 Crown Counsel and senior members of the Ministry of the Attorney General. Also implicated were at least 15 named police officers from three different police forces, unnamed members of the Ontario Provincial Police and the Royal Canadian Mounted Police, and officials of several other government agencies.
[11] Many of the alleged Charter breaches were serious, involving, amongst other things, allegations of perjury, the fabrication of evidence, the deliberate destruction and non-disclosure of evidence, witness tampering, and the making of false or misleading representations to the Court.
[12] The Crown appealed Justice Cosgrove's decision staying the proceedings to the Ontario Court of Appeal. Although the Notice of Appeal was served in September of 1999, the appeal was not actually heard until September of 2003. Throughout this period, Justice Cosgrove continued to sit, presiding over both civil and criminal matters in which the Crown was a litigant.
The Decision of the OntarioCourt of Appeal
[13] In a decision released on December 4, 2003, the Court of Appeal allowed the Crown's appeal, setting aside Justice Cosgrove's decision staying the proceedings, as well as his order requiring that the Crown pay Ms. Elliott's costs. In addition, the Court of Appeal ordered a new trial for Ms. Elliott.
[14] The decision of the Ontario Court of Appeal was highly critical of Justice Cosgrove's conduct of the trial, describing his rulings against the Crown and his findings with respect to the various Charter breaches as "unwarranted", "unfounded", "ill advised", "completely without foundation", "peculiar", "erroneous", "troubling", "factually incorrect", and "not borne out by the evidence".
[15] The Court of Appeal further found that Justice Cosgrove's findings with respect to the alleged Charter breaches typically shared the following common elements:
1. There was no factual basis for the findings.
2. [Justice Cosgrove] misapprehended the evidence.
3. [Justice Cosgrove] made a bare finding of a Charter breach without explaining the legal basis for the finding.
4. In any event, there was no legal basis for the finding.
5. [Justice Cosgrove] misunderstood the reach of the Charter.
6. [Justice Cosgrove] proceeded in a manner that was unfair to the person
whose conduct was impugned. [at ¶ 123]
[16] In addition, under the heading of "Abuse of the Contempt Power", the Court of Appeal discussed its concerns with the way that Justice Cosgrove used his contempt jurisdiction, finding that it appeared that he misunderstood the purpose of the contempt power. In discussing one incident where Justice Cosgrove indicated that he was contemplating citing Crown counsel for contempt, without apparent justification, the Court of Appeal observed that "A reasonable observer might be concerned that the trial judge appeared to be biased against the police and their counsel because of this unfortunate incident". [at ¶ 144]
[17] The Court of Appeal also found that Justice Cosgrove's use of the Charter to 'remedy' frivolous and baseless claims brought the Charter and the administration of justice into disrepute.
[18] The Ontario Court of Appeal's decision received a significant amount of publicity.
[19] No application for leave to appeal to the Supreme Court of Canada was brought with respect to the Court of Appeal's decision, and the time for bringing such an application expired on February 2, 2004.
The Attorney General's Request
[20] By letter dated April 22, 2004 to the Right Honourable Beverly McLachlin, Chief Justice of the Supreme Court of Canada and Chair of the Canadian Judicial Council, Michael Bryant, the Attorney General of Ontario, requested that, pursuant to subsection 63(1) of the Judges Act, an inquiry be commenced into the conduct of Justice Cosgrove during the course of the Elliott trial. The Attorney General indicated that he was seeking the inquiry in order to determine whether Justice Cosgrove should be removed from office for any of the reasons set out in paragraphs 65(2)(b) to (d) of the Judges Act.
[21] Paragraphs 65(2)(b) to (d) of the Judges Act provide that the CJC may recommend the removal of a judge where the Council is of the opinion that the judge has become incapacitated or disabled from the due execution of the office of judge by reason of having been guilty of misconduct, having failed in the due execution of his or her office, or having been placed, by his or her conduct or otherwise, in a position incompatible with the due execution of the office. Paragraph 65(2)(a), which is not in issue in this case, contemplates removal for incapacity due to age or infirmity.
[22] In his letter to Chief Justice McLachlin, the Attorney General of Ontario stated that:
It is my respectful opinion that the conduct of Justice Cosgrove throughout the lengthy proceedings in Regina v. Elliott has undermined public confidence in the administration of justice in Ontario and has rendered Justice Cosgrove incapable of executing his judicial office. Accordingly, it is my opinion that Justice Cosgrove has become incapacitated or disabled from the due execution of the office of judge, within the meaning of subsection 65(2) of the Act.
[23] The Attorney General of Ontario went on to review, at some length, the history of the proceedings in the Elliott matter, and provided the CJC with a detailed summary of the findings of the Ontario Court of Appeal.
[24] The Attorney General's letter concludes with the observation that:
In these most unfortunate of circumstances, it is my view that the conduct of Justice Cosgrove during the course of this trial was such that nothing short of an inquiry by the Judicial Council can restore public confidence in the due administration of justice in connection with this matter.
Proceedings Before the CJC and the Inquiry Committee
[25] Upon receiving the Attorney General's letter of request, the CJC advised Justice Cosgrove of the request for an inquiry, and of the CJC's intention to issue a press release regarding same.
[26] On April 27, 2004, the CJC publicly announced that there would be an inquiry into the conduct of Justice Cosgrove as a result of the request of the Attorney General of Ontario. The fact that the CJC would be holding an inquiry received significant media attention.
[27] On April 29, 2004, the Honourable Heather Smith, the Chief Justice of the Superior Court of Ontario, contacted Justice Cosgrove and asked that he not preside over any matters until such time as the inquiry was resolved. Matters that were pending before Justice Cosgrove were reassigned to other judges, and he has not sat since that time.
[28] An Inquiry Committee was established by the CJC, consisting of two Chief Justices and an Associate Chief Justice. Two senior members of the Ontario Bar were also appointed to the Inquiry Committee by the Federal Minister of Justice, in accordance with the provisions of subsection 63(3) of the Judges Act.
[29] By Notice of Motion dated October 18, 2004, Justice Cosgrove moved for a determination that subsection 63(1) of the Judges Act violates the Constitution Act, 1867 as well as section 2(b) of the Canadian Charter of Rights and Freedoms. Justice Cosgrove asserted that the power of a provincial attorney general to require that an inquiry be conducted pursuant to subsection 63(1) of the Judges Act threatened his judicial independence, as well as his right to freedom of expression.
[30] On the same date, Justice Cosgrove filed a detailed Notice of Constitutional Question, outlining the facts upon which he relied in support of his contention that subsection 63(1) was unconstitutional. Justice Cosgrove identified the constitutional questions to be determined by the Inquiry Committee as:
(i) Is subsection 63(1) of the Judges Act, R.S.C. 1985, c. J-1 of no force and effect pursuant to section 52 of the Constitution Act, 1982 because it contravenes the principles of judicial independence inherent in the Constitution Act, 1982 and the Constitution Act, 1867?
(ii) Is subsection 63(1) of the Judges Act, R.S.C. 1985, c. J-1 of no force and effect pursuant to section 52 of the Constitution Act, 1982 because it contravenes the right to freedom of expression in section 2(b) of the Canadian Charter of Rights and Freedoms?
[31] Justice Cosgrove's motion was heard by the Inquiry Committee on December 8 and 9, 2004. Both the Attorney General of Canada and the Attorney General of Ontario appeared before the Inquiry Committee as interveners, as did the Canadian Superior Court Judges Association (the "CSCJA"), the Criminal Lawyers' Association and the Canadian Council of Criminal Defence Lawyers. The Attorneys General supported the constitutionality of the legislation, whereas the CSCJA and the criminal lawyers' associations supported Justice Cosgrove's position.
[32] Also appearing at the hearing was Earl Cherniak, Q.C.. Mr. Cherniak is the Independent Counsel appointed by the CJC with respect to this case. Mr. Cherniak argued in favour of the constitutionality of the legislation.
The Inquiry Committee's Decision
[33] In a decision dated December 16, 2004, the Inquiry Committee dismissed Justice Cosgrove's motion, finding that subsection 63(1) of the Judges Act was constitutional as it offended neither the principle of judicial independence nor section 2(b) of the Canadian Charter of Rights and Freedoms.
[34] In coming to this conclusion, the Inquiry Committee held that while the principle of judicial independence was inviolate, judicial conduct is properly subject to scrutiny by other branches of government. The unique position assigned to attorneys general as guardians of the public interest, as well as their historically recognized role with respect to the administration of justice, serve to explain why they are given the power to compel an inquiry in cases where there are allegations of serious judicial misconduct.
[35] In this regard, the Inquiry Committee noted that subsection 63(1) of the Judges Act:
[...] enables the public's primary representative in the legal system, an attorney general, to ensure that allegations of serious judicial misconduct are examined, first by judges and ultimately, if necessary, by Parliament itself. We do not think that this can be unconstitutional. [at ¶ 29]
[36] The Inquiry Committee also found that subsection 63(1) of the Judges Act provided federally-appointed judges with every substantive protection that he or she could reasonably expect, the result of which was to provide "a strong insulation against any apprehension of undue influence thought to be accorded to an attorney general or the Minister under subsection 63(1)." [at ¶ 21]
[37] The Inquiry Committee considered the affidavit evidence of Justice Cosgrove and the Honourable James Chadwick, Q.C., who the Committee described as "a respected former judge of the Ontario Superior Court", as to the alleged "chilling effect" of subsection 63(1) of the Judges Act. In this regard, the Inquiry Committee stated that:
Our own experience, including that of three judges and two senior lawyers on this Inquiry Committee, provides no basis for concluding that judges are even remotely intimidated by the knowledge that an attorney general can compel their fellow judges on the CJC to inquire into their conduct. [at ¶ 41]
[38] In relation to the issue of judicial independence, the Inquiry Committee concluded that:
A balancing of competing interests arises in every constitutional analysis. In our view, when Parliament in subsection 63(1) gave to the senior law officers in the country the power to compel the CJC to commence an inquiry in the public interest, into allegations of serious misconduct, Parliament created a minimal and reasonable limitation on the independence of the judiciary. [at ¶ 38]
[39] In relation to Justice Cosgrove's alternative argument that subsection 63(1) Judges Act violates subsection 2(b) of the Charter and has a chilling effect on judicial speech, the Inquiry Committee held that subsection 2(b) could not possibly have any application to this case. In the Committee's view, the Charter was never intended to protect one branch of government from another.
[40] Moreover, the Inquiry Committee held that the protections which attach to judicial expression are entirely encompassed by the constitutional guarantee of judicial independence. The Committee observed that:
In the discharge of their duties, judges were as free before 1982 when the Charter was adopted, as they have been since, to express themselves fully, openly and candidly, provided only that they do so in good faith and do not abuse the powers of their office. The Charter has altered nothing in this regard. [at ¶ 47]
[41] In concluding that subsection 2(b) is not engaged in the circumstances of this case, the Inquiry Committee held that the Charter is a shield for the benefit of individuals, and was never intended to protect either the legislative or judicial branches of government in the exercise of their powers or functions.
The Issues Before the Court
[42] Although they differ slightly as to the wording to be used, the parties are agreed that there are three issues before the Court. They are:
1. What is the appropriate standard of review?
2. Did the Inquiry Committee err in determining that s. 63(1) of the Judges Act is valid as it does not infringe the constitutionally protected independence of the judiciary?
3. Did the Inquiry Committee err in determining that s. 63(1) of the Judges Act does not infringe section 2(b) of the Charter in a manner that cannot be justified under section 1?
The Standard of Review
[43] The parties are in agreement that insofar as the Inquiry Committee was called upon to decide constitutional questions, the appropriate standard of review is that of correctness. However, counsel for the Minister of Justice, as well as the Independent Counsel himself, submit that to the extent that the Inquiry Committee made findings of fact, these findings should be reviewed against a standard of patent unreasonableness.
[44] In Monsanto Canada Inc. v. Ontario (Superintendent of Financial Services), [2004] 3 S.C.R. 152, 2004 SCC 54 (at ¶ 6), the Supreme Court noted that the proper standard of review is a question of law which must be decided by the Court, even in cases where the parties are in agreement as to what that standard should be.
[45] That said, in Nova Scotia (Workers' Compensation Board) v. Martin, [2003] 2 S.C.R. 504, 2003 SCC 54, Justice Gonthier held that decisions of administrative tribunals based upon the Canadian Charter of Rights and Freedoms will always be subject to review on the standard of correctness. The Court went on to observe that "[a]n error of law by an administrative tribunal interpreting the Constitution can always be reviewed fully by a superior court." [at ¶ 31] (See also Barrie Public Utilities v. Canadian Cable Television Assn., [2003] 1 S.C.R. 476, 2003 SCC 28, at ¶ 66 and Mugesera v. Canada (Minister of Citizenship and Immigration), [2005] S.C.J. No. 39, 2005 SCC 40, at ¶ 37, where the Supreme Court of Canada recently reaffirmed that questions of law are reviewable on a standard of correctness.)
[46] A challenge to the constitutionality of legislation admits of only one answer - the legislation is either constitutional or it is not. As a consequence, I am satisfied that to the extent that the Inquiry Committee decided questions of constitutionality, its decision should be reviewed against the correctness standard.
[47] However, I am also satisfied that in the course of making its constitutional determination, the Inquiry Committee made several findings of fact, including the finding that in light of the reasons of the Ontario Court of Appeal in Regina v. Elliott, there could be no reasonable suggestion that in requesting an inquiry into Justice Cosgrove's conduct, the Attorney General of Ontario was relying upon subsection 63(1) for an improper purpose. The Inquiry Committee also found as a fact that subsection 63(1) does not have an intimidating or chilling effect on members of the judiciary.
[48] The question, then, is the degree of deference that this Court should show to these factual findings. It should be noted that in Moreau-Bérubé v. New Brunswick (Judicial Council), [2002] 1 S.C.R. 249, 2002 SCC 11, the Supreme Court of Canada observed, in relation to a provincial judicial council, that "[a] tribunal charged with the task of disciplining provincial court judges does not fit into the more traditional specialized against non-specialized dichotomy for purposes of evaluating the appropriate standard of review". The Court then went on to note that "it would be nonsensical for a single judge or an appellate court to show low deference to decisions of the Council in an area in which they have no additional expertise." [at ¶ 44 and 50]
[49] The Court's comments in Moreau-Bérubé were, however, made in the context of a discussion as to the standard of review to be applied with respect to a judicial council determination as to a judge's capacity to remain in office, and not in the context of a challenge to the constitutionality of legislation. In the context of this case, it is therefore necessary to conduct a pragmatic and functional analysis in order to determine the appropriate standard of review to be applied in relation to the Inquiry Committee's factual findings.
[50] A review of the four factors outlined by the Supreme Court of Canada in cases such as Dr. Q. v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, 2003 SCC 19, discloses that:
i) There is no privative clause in the Judges Act. This suggests that less deference should be paid to findings of an Inquiry Committee. At the same time, there is no appeal procedure in the Act, which suggests that decisions of the Inquiry Committee are to be accorded deference;
ii) As was noted by the Supreme Court of Canada in Moreau-Bérubé, judicial councils are unique tribunals, with some degree of specialization, and which are at least if not more qualified than reviewing courts in relation to matters of judicial discipline. As such, the findings of judicial councils in relation to a judge's capacity to remain in office should be accorded a great degree of deference [at ¶ 53]. In my view, notwithstanding the fact that the Supreme Court's comments were made in the context of a review of the merits of a complaint of judicial misconduct, these comments suggest that findings of fact made by judicial councils should be accorded significant deference. Moreover, the specialized expertise of the judicial members of the Inquiry Committee stems, in part, from their experience as sitting judges. This suggests that findings of fact made by the Inquiry Committee should be accorded significant deference;
iii) Insofar as the purpose of the legislation is concerned, section 63 of the Judges Act is part of a legislative scheme designed to ensure that the removal of a judge from office is carried out in accordance with judicial independence. This purpose involves the application of constitutional principles, and militates against deference; and
iv) the questions in issue are questions of fact, suggesting a high degree of deference.
[51] The purpose of the pragmatic and functional analysis is to ascertain Parliament's intent as to the level of deference to be accorded to a decision-maker, in light of the nature of the question that the decision-maker is called upon to answer.
[52] In this case, one of the four factors militates against deference being paid to the Inquiry Committee's findings of fact. However, in light of the comments of the Supreme Court in Moreau-Bérubé as to the expertise of judicial councils, and having regard to the considerable expertise of the Inquiry Committee in relation to findings of fact, I am satisfied that the factual findings of the Committee should nonetheless be accorded significant deference, and should thus be reviewed against the standard of patent unreasonableness.
[53] With this understanding of the standard of review, I turn now to consider the merits of Justice Cosgrove's application for judicial review.
Did the Inquiry Committee Err in Determining That Subsection 63(1) of the Judges Act Is Valid as it Does Not Infringe the Constitutionally Protected Independence of the Judiciary?
[54] Before turning to consider the arguments of the parties, it is important to have an understanding of the judicial discipline process, as it relates to superior court judges. As much depends on the specifics of the process to be followed and the protections that are afforded to judges who are the subject of complaint, it is necessary to review this process in some detail.
i) The Scheme of the Judges Act and the Judicial Discipline Process
[55] The starting point in this discussion must be subection 99 of the Constitution Act, 1867,
which provides that:
99. (1) Subject to subsection (2) of this section, the judges of the superior courts shall hold office during good behaviour, but shall be removable by the Governor General on address of the Senate and House of Commons.
(2) A Judge of a Superior Court, whether appointed before or after the coming into force of this section, shall cease to hold office upon attaining the age of seventy-five years, or upon the coming into force of this section if at that time he has already attained that age.
99. (1) Sous réserve du paragraphe (2) du présent article, les juges des cours supérieures resteront en fonction durant bonne conduite, mais ils pourront Ltre révoqués par le gouverneur général sur une adresse du Sénat et de la Chambre des Communes.
(2) Un juge d'une cour supérieure, nommé avant ou aprPs l'entrée en vigueur du présent article, cessera d'occuper sa charge lorsqu'il aura atteint l'âge de soixante-quinze ans, ou B l'entrée en vigueur du présent article si, B cette époque, il a déjB atteint ledit âge.
[56] Prior to 1971, the only mechanism in place to ensure judicial accountability was the power of the Minister of Justice to establish an inquiry under the Inquiries Act, R.S. 1985, c. I-11, to review the conduct of a judge of a superior court. Following such an inquiry, a report would be made to the Minister, which could result in a joint address of the Senate and the House of Commons, and the removal of the judge by the Governor General.
[57] The CJC was created in 1971, through amendments to the Judges Act. These amendments were introduced, at least in part, as a result of concerns that had arisen with respect to the ad hoc nature of the judicial discipline process. These concerns came into the forefront in the 1960's, as a result of perceived flaws in the proceedings involving Justice Leo Landreville: see Professor Martin L. Friedland, A Place Apart: Judicial Independence and Accountability in Canada, (1995, Canadian Judicial Council) at p. 88.
[58] As a consequence, the CJC was given a specific role to play in relation to the removal process. As part of the CJC's mandate to improve the quality of judicial service in superior courts by fostering judicial accountability, consistent with the independence of the judiciary, paragraph 60(2)(c) of the Judges Act empowers the CJC to make inquiries in relation to and to investigate complaints or allegations of judicial misconduct.
[59] As noted earlier, section 63 of the Judges Act contemplates that inquiries and investigations with respect to judicial conduct may be commenced in one of two ways. The relevant portions of section 63 provide that:
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).
(2) The Council may investigate any complaint or allegation made in respect of a judge of a superior court. [emphasis added]
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).
(2) Le Conseil peut en outre enquêter sur toute plainte ou accusation relative à un juge d'une juridiction supérieure.
[60] Thus subsection 63(1) mandates that there be an inquiry, whereas subsection 63(2) gives the CJC the discretion to investigate, and the corresponding discretion not to investigate a complaint of judicial misconduct.
[61] Although neither term is defined in the Judges Act, the Inquiry Committee found that an "inquiry" contemplates a more formal pre-hearing and hearing process than does an "investigation", which, at least at the outset, will be less structured.
[62] At this juncture, it should be observed that while the English version of the legislation uses different terms in the two subsections ("inquiry" in subsection 63(1) versus "investigation" in subsection 63(2)), the French version of the legislation uses variations of the same term in both subsections: "enquêtes" in subsection 63(1), and "enquêter" in subsection 63(2).
[63] As the Supreme Court of Canada recently restated in Medovarski v. Canada(Minister of Citizenship and Immigration), [2005] S.C.J. No. 31, 2005 SCC 51, at ¶ 25, bilingual legislation is to be interpreted by applying the "shared or common meaning rule". That is, where two versions of bilingual legislation do not say the same thing, the shared meaning, which is normally the narrower meaning, ought to be adopted, unless for some reason, that meaning is unacceptable: See also Ruth Sullivan, Sullivan and Dreidger on the Construction of Statues, 4th ed. (London: Butterworths, 2002) at p. 80.
[64] "Enquêtes" and "enquêter" contemplate both investigations and inquiries, whereas I agree with the Inquiry Committee that the English terms "inquiry" and "investigation" are slightly different, with "inquiry" having a slightly narrower meaning, contemplating a more formal pre-hearing and hearing process than does "investigation". Applying the shared or common meaning rule, I am therefore satisfied that section 63 should properly be interpreted in the manner suggested by the Inquiry Committee. This is also consistent with the way that the CJC itself has interpreted the legislation.
[65] Subsection 63(3) deals with the constitution of Inquiry Committees, whereas subsection 63(4) deals with the powers of Committees to compel the attendance of witnesses and the production of documents. Subsections 63(5) and (6) deal with the public nature of the process, with the CJC being empowered to determine the extent to which the process will be public in nature. The one limitation on the power of the CJC to determine how public the process will be is that the Minister of Justice can require that an investigation or inquiry be held in public. No such request was made in this case.
[66] In enacting these provisions, Parliament has conferred a considerable amount of autonomy and discretion on the CJC to establish the procedures that it will follow in relation to the investigations and inquiries contemplated by section 63 of the Judges Act. In this regard, paragraph 61(3)(c) empowers the CJC to make by-laws respecting the conduct of inquiries and investigations.
[67] The CJC has exercised this power, and has adopted a series of by-laws and procedures which establish a comprehensive complaints process. The Canadian Judicial Council Inquiries and Investigations By-laws have been enacted as Regulations, in accordance with subsection 61(3) of the Judges Act, whereas the "Complaints Procedures" represent a more informal statement of policy of the CJC, as it relates to the processing of complaints.
[68] The "Complaints Procedures" govern the conduct of investigations and inquiries, including the public or private nature of the process, subject to the provisions of subsection 63(6) referred to above, which empowers the Minister of Justice to require that an investigation or inquiry be held in public. No such right is accorded to provincial attorneys general.
[69] Nothing in the Judges Act or in the CJC's By-laws or Complaints Procedures requires that the CJC keep the fact that a complaint has been made pursuant to subsection 63(2) confidential. Although it is the usual practice of the CJC to keep such investigations private, there have been cases where the CJC has publicized the conclusions of a panel regarding specific investigations.
[70] Moreover, there is nothing in either the Judges Act or in the CJC's By-laws and Complaints Procedures that would prevent the individual who initiated the complaint under subsection 63(2) from publicizing the fact that a complaint was made.
[71] Where a complaint is made to the CJC pursuant to subsection 63(2) of the Judges Act, it is subject to a screening procedure established by the CJC By-laws. The process provided for in the Complaints Procedures involves four stages:
1. Every complaint or allegation is received by the Executive Director of the CJC and is then referred to the Chair of the CJC's Judicial Conduct Committee. The Chair may close the file where the matter is "trivial, vexatious, or without substance". If these criteria are not met, the judge whose conduct is in question then has an opportunity to comment on the complaint or allegation, following which the file may then be closed for the same reasons mentioned above, or because it has been determined that the matter is clearly not serious enough to warrant the removal of the judge in question.
2. The Chair of the Judicial Conduct Committee may also cause "further inquiries" to be made. These are usually conducted by an independent counsel. If further inquiries are made, the judge who is the subject of the complaint must be provided with the gist of the allegations against him or her, and must also be provided with the evidence which is uncovered through those inquiries. The judge must also be given the opportunity to respond to the allegations and evidence.
3. If the Chair has not closed the file by this point, it is referred to a panel of the Judicial Conduct Committee. The panel may decide that no investigation is warranted because the matter is without substance, or is clearly not serious enough to warrant removal. Alternatively, the panel may refer the matter to the CJC with its report and conclusion that an investigation pursuant to section 63(2) of the Judges Act is warranted.
4. A copy of the panel's report to the CJC must be provided to the judge whose conduct is under scrutiny. The judge is then entitled to make written and oral submissions to the CJC. The CJC will then decide whether or not an investigation pursuant to section 63(2) of the Judges Act is warranted. If such an investigation is found to be warranted, an Inquiry Committee will then be established pursuant to section 63(3).
[72] It is at this point that the process to be followed in relation to complaints brought under subsection 63(2) of the Judges Act merges with the process that will be followed where a request for an inquiry is received from the Minister of Justice or a provincial attorney general. In either case, section 64 of the Judges Act provides the judge whose conduct is in question with a range of procedural protections. These include the right to notice of the subject-matter of the inquiry or investigation, and of the time and place of the hearing. The judge also has the right to be heard, including the right to lead evidence, and to cross-examine witnesses.
[73] Regardless of how the complaint was initiated, the proceedings of the Inquiry Committee will be governed by the Canadian Judicial Council Inquiries and Investigations By-laws. When an Inquiry Committee is established, section 3 of the By-laws requires that the Chairperson or Vice-Chairperson of the Judicial Conduct Committee appoint an independent counsel, who must have been a member of a provincial bar for at least 10 years, and who must also be recognized within the legal community for his or her ability and experience.
[74] As was noted earlier in these reasons, in this