Date: 20080811
Docket: T-914-08
Citation: 2008 FC 941
Ottawa, Ontario, August 11,
2008
PRESENT: The Honourable Mr. Justice Lemieux
BETWEEN:
THE HONOURABLE MR. JUSTICE
PAUL COSGROVE
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
Introduction and
Background
[1]
The
Honourable Mr. Justice Paul Cosgrove (Justice Cosgrove), since 1989, is a judge
of the Ontario Court (General Division) renamed the Superior Court of Justice
of Ontario. In this
expedited judicial review application, Justice Cosgrove seeks to set aside the
following May 9, 2008 ruling of an Inquiry Committee of the Canadian Judicial
Council (the Inquiry Committee and the CJC):
The Inquiry Committee has considered your
submissions made earlier today, and determined that Mr. Paliare’s motion will
be heard at the time of the hearing in September.
[2]
Mr.
Paliare represents Justice Cosgrove at the inquiry established by the CJC upon
the complaint of the Attorney General for Ontario made pursuant to subsection
63(1) of the Judges Act (the Act), to determine whether in its
report to the CJC it should make a recommendation for his removal from the office
of Judge for any of the reasons set out in paragraphs 65(2)(b) to (d) of that Act
within the framework of subsection 99(1) of the Constitution Act 1967
which reads in its relevant part:
99(1) […] 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 the House of Commons.
[3]
In
the appendix to these reasons, I set out in both official languages sections 63
to 65 of the Judges Act.
[4]
The
motion referred to in the Inquiry Committee’s ruling is a motion based on the Boilard
rule which will be explained later in these reasons and the reference to
the hearing in September is the Inquiry Committee’s hearing into the matter
affecting Justice Cosgrove scheduled to commence on September 2, 2008.
[5]
In
accordance with the CJC Inquiries and Investigation By-laws (the By-laws), Earl
Cherniak, Q.C. was appointed as Independent Counsel to present the case to the
Inquiry Committee and is required under subsection 5(2) of the Bylaws to give
to Justice Cosgrove sufficient notice of all complaints or allegations that are
being considered by the Inquiry Committee to enable him to respond fully to them.
The applicant’s record indicates that on February 29, 2008, Justice Cosgrove
was provided with the notice of allegations.
[6]
The
Attorney General for Ontario, in his complaint letter to the CJC dated April
2004, pinpointed, as the basis for the complaint, to Justice Cosgrove’s
decision in Regina v. Yvonne Elliott, [1999] O.J. No. 3265 in
which he ordered a stay of proceedings in a murder trial; that order was
subsequently overturned by the Ontario Court of Appeal on December 4, 2003
cited 179 O.A.C. 219.
[7]
The
Attorney General for Ontario suggested in his
complaint letter the judicial incapacity test to be applied for recommending
Justice Cosgrove’s removal, was one derived from the 1990 decision of the
Inquiry Committee into the conduct of the Royal Commission on the Donald
Marshall Jr. Prosecution :
Is the conduct alleged so
manifestly and profoundly destructive of the concept of impartiality, integrity
and independence of the judicial role, that public confidence would be
sufficiently undermined to render the judge incapable of executing the judicial
office.
[8]
Counsel
agree the CJC under the Act has no power to screen a complaint made by
an Attorney General as to whether the complaint has any merit, i.e. determine
whether an inquiry is warranted, unlike its ability to do so when a complaint
has been made against a superior court judge by any person pursuant to
subsection 63(2) of the Act.
[9]
Justice
Cosgrove challenged the constitutional validity of subsection 63(1) of the Act.
A judge of this Court found this subsection to be unconstitutional insofar as
it gives a legal power to provincial Attorneys General to compel the CJC to
commence an inquiry into the conduct of a superior court judge without the screening
procedure applied to complaints submitted under subsection 63(2). That decision,
reported at 2005 FC 1454, was set aside by the Federal Court of Appeal in the
Attorney General of Canada and the Honourable Mr. Justice Paul Cosgrove et al,
2007 FCA 103, leave to appeal denied by that Court on November 29, 2007. Madam
Justice Sharlow wrote the reasons for the Federal Court of Appeal which were
concurred in by Justices Sexton and Evans.
[10]
In
her reasons, Justice Sharlow reviewed the limits on the discretion of an
Attorney General to exercise the power in subsection 63(1) to compel the
commencement of an inquiry. The first constraint identified was the traditional
constitutional role of Attorneys General as guardians of the public interest in
the administration of justice. She then referred to subsection 63(1) writing at
paragraphs 52 and 53 as the second constraint:
52 A
second constraint is found within subsection 63(1) itself. As I read that
provision, an Attorney General is entitled to request the commencement of an
inquiry under subsection 63(1) only in relation to judicial conduct that is
sufficiently serious to warrant removal of the judge from office for one of the
reasons specified in paragraphs 65(2)(a) to (d). The Council, in the
Report of the Canadian Judicial Council to the Minister of Justice under ss.
65(1) of the Judges Act concerning Mr. Justice Jean-Guy Boilard of the Superior
Court of Québec (2003), said (at page 3) that it may decline to commence
an inquiry on the basis of a request under subsection 63(1), or the Inquiry
Committee may decline to continue an inquiry, if the letter of request from an
Attorney General does not allege bad faith or abuse of office, and does not on
its face disclose an arguable case for removal. In my view, this principle
(which I will refer to as the "Boilard rule") is a valid
expression of the general principle that a tribunal, as master of its own
procedure, may decline to proceed in any case that is outside its mandate or is
an abuse of its process.
53 It
is true that an Attorney General, while acting in good faith, may submit a
request that is not well founded. That is demonstrated by the fact that not
every inquiry requested by an Attorney General results in a recommendation for
removal and that, in at least one instance, the request did not disclose even a
prima facie case. However, the question of whether judicial conduct
in a particular case warrants removal is a matter on which reasonable and
knowledgeable people may disagree. The possibility that an Attorney General
may misjudge the seriousness of particular judicial conduct bears little weight
in determining the constitutionality of subsection 63(1). [Emphasis mine.]
[11]
Beginning
at paragraph 66 of her reasons Justice Sharlow outlined the screening procedure
for section 63(2) complaints which she described as “ordinary complaints” stating
that “ordinary complaints are subject to multi-tiered procedure to determine
whether an inquiry is warranted.”
·
Level 1 - where the complaint is reviewed by the Executive
Director of the Council to determine whether a complaint warrants opening a
file. No file is opened where a complaint is clearly irrational or an obvious
abuse of the complaint process.
·
Level 2 - the complaint is referred to the Chairperson (or the
Vice-Chairperson) of the Judicial Conduct Committee of the CJC and may be
disposed summarily if it is outside the mandate of the Council, or if it is
trivial, vexatious, made for an improper purpose, manifestly without substance,
or does not warrant further consideration. If the complaint is not dismissed
summarily, the Chairperson may seek additional information from the
complainant, the judge or the judge's chief justice. The complaint may be
dismissed, resolved on the basis of remedial measures, or referred to a panel.
·
Level 3 - consideration by a panel of three to five judges. The
judge complained about is given an opportunity to respond to the complaint. If
the complaint is considered not serious enough to warrant an inquiry, it may be
resolved at that stage by a letter of concern or a recommendation of remedial
measures. If it is serious enough, the panel makes a recommendation to the CJC
that an Inquiry Committee be established.
·
Level four - the Council considers the panel’s recommendation and
decides whether or not an inquiry is warranted. The affected judge is invited
to make submissions on the issue.
[12]
Justice
Sharlow identified the advantages of the screening process in place for
“ordinary complaints”:
77 In
practical terms, the screening procedure followed for an ordinary complaint
under subsection 63(2) of the Judges Act is advantageous from the
point of view of the judge for three reasons. First, it permits the resolution
of a complaint without publicity. Second, it permits the summary dismissal of
an unmeritorious complaint. Third, it permits the early resolution of a
complaint by remedial measures, without the establishment of an Inquiry
Committee. I will discuss each of these in turn. [Emphasis mine.]
[13]
She wrote the following about summary dismissal
and remedial measures and concluded:
80 Summary dismissal. Part of the function
of the screening procedure for ordinary complaints is to facilitate the summary
dismissal of complaints that on their face are unmeritorious. In the case
of an Attorney General's request for an inquiry under subsection 63(1), that
function is served by the Boilard rule, which effectively permits the
summary dismissal of a complaint by an Attorney General if it is obviously
unmeritorious or does not disclose judicial conduct warranting removal from
office. The difference is that an ordinary unmeritorious complaint may be
dismissed before an Inquiry Committee is established, while under the Boilard
rule an Attorney General's complaint may be dismissed at an early stage
by the Inquiry Committee itself, either before or after its work is commenced,
or it may be dismissed later by the Council. Those differences are trivial, in
my view. [Emphasis mine.]
81 Remedial measures. It seems
to me that the possibility of a resolution with remedial measures is unlikely
to be a factor in cases involving judicial conduct that would warrant removal
of the judge from office. If an Attorney General makes a request for an inquiry
under subsection 63(1) on the basis of conduct that would not warrant removal
from office, the Boilard rule would come into play and there would be no
recommendation for removal. If the conduct would warrant removal, there can be
no valid objection to the establishment of an Inquiry Committee on the basis
that an ordinary complainant might be satisfied with a lesser remedy.
82 In my view, the differences between
the two complaint procedures are relatively minor when considered against the
constitutional assurance of security of tenure given to judges of the superior
courts, the constitutional role of Attorneys General and the presumption that
the Attorneys General will act in accordance with their constitutional
obligations, the substantial protection afforded by the appointment of
Independent Counsel to the Inquiry Committee, and the procedural safeguards
provided in the Judges Act, the Inquiry By-Laws, and the
Council's rules of practice.
[14]
As
a matter of interest what Justice Sharlow coined as the Boilard rule is
taken from the December 23, 2003 Report of the CJC to the Minister of Justice
of Canada (the Minister) concerning Mr. Justice Jean-Guy Boilard of the
Superior Court of Quebec. The Inquiry Committee in that case in its report to
the CJC concluded that Justice Boilard in recusing himself from continuation of
the trial known as R. v. Beauchamp et al had not become incapacitated
or disabled from the due execution of his office within the meaning of subsection
65(2) of the Judges Act and therefore did not recommend Justice Boilard’s removal
from office. The Inquiry Committee made a finding of impropriety against
Justice Boilard which the CJC disagreed with. The CJC concurred with the
Inquiry Committee that there be no recommendation for his removal.
[15]
The
CJC in its report to the Minister in the Justice Boilard matter said “Except
where a judge has been guilty of bad faith or abuse of office, a discretionary
judicial decision cannot be the basis for any of the kinds of misconduct, or
failure or incompatibility in the due execution of office contemplated by
clauses 65(2)(b), (c) or (d) of the Judges Act nor can the
circumstances leading up to such a decision do so. Exercise of judicial
discretion is at the heart of judicial independence.”
[16]
The
Boilard rule and its purpose is set out in the following paragraph of
the CJC’s December 2003 report to the Minister:
Where the Minister of Justice or an
Attorney General of a province questions a judicial decision and requests an
inquiry under s. 63(1) of the Act, but makes no allegation of bad faith
or abuse of office and where, on its face, the judicial decision itself
discloses no indication of bad faith or abuse of office, then, the Council
would be justified in considering, or an Inquiry Committee appointed
under s. 63 should consider, as a preliminary matter, whether there
is anything to rebut the presumptions of good faith and due and proper
consideration of the issues. Although the circumstances may vary from case to
case, if there is nothing of that nature, the Council or an Inquiry Committee
should, as a general rule, decline to deal with the matter further on the basis
that the nature of the request for the inquiry and the essential evidence is so
lacking in proof of misconduct that there is no reason to continue the inquiry.
[Emphasis mine.]
The context of the
Inquiry Committee’s May 9, 2008 ruling
[17]
For
convenience, I reproduce again the contested ruling challenged in this judicial
review proceeding:
The Inquiry Committee has considered your
[those of Independent Counsel and Mr. Paliare] submissions made earlier today,
and determined that Mr. Paliare’s motion will be heard at the time of the
hearing in September.
[18]
Mr.
Paliare inquired whether the Inquiry Committee was intending to issue reasons
for decision and, if not, he requested it do so. He was advised by Inquiry
Committee Counsel, George Macintosh, Q.C. (the Inquiry Committee Counsel) “that
it will not be issuing reasons for the decision it rendered on May 9, 2008”.
[19]
What
led to the Inquiry Committee ruling made after it heard submissions via teleconference
was the following.
[20]
After
considering the notice of allegation sent to Justice Cosgrove by Independent Counsel
in late February 2008, Mr. Paliare wrote to him on April 10, 2008
stating he had been instructed “to make a motion to the Inquiry Committee in
the nature of a Boilard motion”. He added:
Specifically, we will be submitting that
the impugned conduct set out in your notice to Justice Cosgrove dated February
29, 2008 is not capable of supporting a finding of judicial misconduct
within the meaning of the Judges Act. As a result, as in the Boilard
matter, the Committee should decline to proceed with the inquiry. [Emphasis
mine.]
[21]
He
enclosed a draft notice of motion and cited Mr. Cherniak’s agreement that it
would be appropriate for the motion to be scheduled prior to the scheduled
September date for the hearing. He added the following comment:
I recall you indicated during our
discussion that, in the event we were to bring a motion such as this, it would
be your intention to rely upon parts of the transcript of the proceedings for
Justice Cosgrove. With respect, it is our view that it is both unnecessary and
inappropriate to do so. In our view, our motion is in the nature of a pleadings
motion. Its success or failure depends upon the adequacy of the allegations
pleaded against Justice Cosgrove.
[22]
The
relevant portions of Mr. Paliare’s Boilard motion are annexed to
Appendix B to these reasons.
[23]
Mr.
Cherniak answered Mr. Paliare’s April 10th letter on April 14th
stating: “Upon further consideration, it is my view the draft motion should be
heard at the outset of the inquiry to be decided after the evidence has been
put forward” expressing the view “the Inquiry is not an adversarial
process. The function of the Inquiry Committee is to make a recommendation to
the Canadian Judicial Council which itself makes a recommendation, not a
decision”. He explained his position: “that the Committee will not be in a
position to evaluate the issues raised in your draft notice in the absence of
that […] evidence” citing the Inquiry Committee’s decision in the Inquiry concerning
Justice Matlow. Mr. Cherniak concluded by saying if Mr. Paliare did not agree
with his position, steps should be taken to set up a conference call with the
Inquiry Committee to discuss the applicant’s proposed motion.
[24]
Steps
were then taken to schedule a conference call. In a letter dated April 17, 2008
to the Inquiry Committee Counsel, Mr. Macintosh, Mr. Paliare requested the
conference call stating:
In particular, it is his position that our
motion should be heard and determined by the Inquiry Committee together with
the hearing of all the evidence in the matter in September, 2008. Needless to
say, we disagree.
Mr. Cherniak in an April 18, 2008 letter to
the counsel to the Inquiry Committee supported the request to arrange a
conference call.
[25]
By
e-mail dated April 28, 2008, Chief Justice Finch of the British Columbia Court
of Appeal who is the Chairperson of the Inquiry Committee concerning Justice
Cosgrove instructed Inquiry Committee counsel as follows:
Dear Mr. Macintosh:
Members of the committee have
considered how best to address Mr. Paliare’s motion.
We have agreed to hear Mr.
Paliare and Mr. Cherniak by telephone conference on the sole question of the
procedure to follow in dealing with Mr. Paliare’s motion. If we are
persuaded on the basis of those submissions that we should address the
substance of Mr. Paliare’s motion in advance of our September hearing date, the
committee may direct either a further telephone conference, or alternatively
written submissions, for that purpose.
If the committee is not
persuaded that we should hear submissions on the substance of Mr. Paliare’s
motion before September, we may direct that it be heard at that time, and ruled
on after hearing the evidence to be presented.
All committee members are
available for the initial telephone conference to discuss the procedure to be
followed on two dates: May 9th and May 21st. The
suggested time for this initial hearing is 7:30 a.m. Pacific Daylight Time.
Would you please arrange the
date for this telephone conference that is convenient to both counsel, on one
of the days suggested.
[26]
A
copy of Chief Justice Finch’s e-mail was forwarded to Messrs. Cherniak and
Paliare.
The Arguments
a) Counsel for Justice Cosgrove
[27]
The
fundamental premise underlying Justice Cosgrove’s judicial review application
is that his counsel asked the Inquiry Committee: “to give him an opportunity
to demonstrate, on a preliminary basis, that the “notice of misconduct”
(previously referred in these reasons as the notice of allegations dated
February 29, 2008) and evidence is so lacking in proof of misconduct that there
is no reason to continue the Inquiry (the Boilard rule). The Inquiry
Committee refused” [Emphasis mine, see paragraph 2 of the applicant’s
memorandum of fact and law.]
[28]
Justice
Cosgrove’s counsel wrote the following at paragraphs 3 and 4 of his memorandum:
3.
The
Inquiry Committee decided that it would decide the Boilard motion only
after all the evidence at the Inquiry was heard. At that time, the entire
purpose of the Boilard motion will have been defeated; it will protect
neither the independence of the judiciary, nor natural justice. The Inquiry Committee cannot
continue its Inquiry if there is no possibility that Justice Cosgrove could be
found to have acted in bad faith or to have abused the office. Similarly,
Justice Cosgrove cannot testify about his judicial decision making unless this
Inquiry fits within the narrow bad faith exception to the judicial immunity
from testifying. It is essential that the Inquiry Committee determine the Boilard
motion before Justice Cosgrove is called upon for his evidence. The breach of
natural justice and the infringement of judicial independence created by the
Inquiry Committee’s proposed procedure cannot be remedied after the fact.
4. Justice Cosgrove asks the
Federal Court to require the Inquiry Committee to hear and decide Justice
Cosgrove’s motion before he is required to call evidence. [Emphasis mine.]
[29]
Further
in the applicant’s memorandum, Justice Cosgrove’s counsel writes “if the
inquiry proceeds, in order to defend himself, it may be necessary for Justice
Cosgrove to testify how and why he reached his decision in R. v. Elliott.
This is precisely the sort of jeopardy that the Boilard rule was
designed to address.”
[30]
As
a result, counsel for Justice Cosgrove frames the first issue on this
application as:
“Did the Inquiry Committee violate
natural justice and judicial independence by refusing to determine the Boilard
motion on a preliminary basis.”
[31]
Counsel
frames the second issue as “is this application premature?” He says Justice
Cosgrove is challenging an interlocutory decision of the Inquiry Committee and
that usually a judicial review of an interlocutory decision of a tribunal will
be premature until the tribunal completes its work. He argues, in the
circumstances of this case, the application is not premature because it will
not unduly fragment the inquiry and, in order for judicial review to provide a
meaningful remedy, it must be addressed on an interlocutory basis before the
Inquiry Committee commences the inquiry hearing. He relies upon the decision of
my colleague Tremblay-Lamer in Minister of Public Safety and Emergency
Preparedness v. Kahlon, 2005 FC 1000 for the proposition a judicial review
of an interlocutory decision is appropriate where the impugned decision is
“finally dispositive of a substantive right of a party”, the determining factor
being whether the damage done by the interlocutory decision can later be
corrected. He also points to my colleague Justice Layden-Stevenson’s order
expediting this judicial review application where she mentioned as a consideration
raised by the applicant for such order that unless the application is
expedited the judicial review application will be moot. He submits for the same
reasons the Boilard motion must be determined at this time before the
inquiry starts. He concludes if the inquiry is permitted to proceed without
considering the application of the Boilard rule, it will damage judicial
independence in a manner that cannot be corrected in a subsequent procedure and
it is imperative the Inquiry Committee be required to determine the Boilard rule
on a preliminary basis.
b) Counsel for the Attorney General for
Canada
[32]
The
Attorney for Canada’s (AGC) first line of defence is that Justice Cosgrove is
seeking to set aside the Inquiry Committee’s interlocutory procedural ruling
that directed that the motion (Justice Cosgrove’s Boilard motion) be
heard at the hearing which is set to begin on September 2, 2008. He argues it
is a fundamental principle of administrative law interlocutory rulings are not
subject to immediate judicial review absent exceptional circumstances. He
relies upon the Federal Court of Appeal’s decisions in Zündel v. Canada (Human
Rights Commission), [2000] 4 F.C. 255 and Szczecka v. Canada (Minister of
Employment and Immigration), 1993 116 D.L.R. (4th) 333 as well
as other cases.
[33]
He
submits there are no exceptional circumstances to warrant the decision being
reviewed at this stage of the process; the harm Justice Cosgrove suggests might
occur if the Inquiry hearing takes places is only speculative at this stage;
there is no evidence on this application Justice Cosgrove will be required to
testify at the hearing about his deliberative thought process in
connection with his 1999 trial and stay decision. He points to the fact four
and one half years have passed since the complaint was filed and the hearing be
allowed to proceed and not be interrupted by judicial intervention at this
early stage of the inquiry process.
[34]
In
response to the applicant’s argument his substantive rights had been affected
by the Inquiry Committee’s May 9, 2008 ruling and judicial independence would
be irreparably damaged if his motion is not decided before the commencement of
the hearing, Counsel for the AGC made the following points.
[35]
First,
he stated the Inquiry Committee “did not decide the merits of his motion for summary
dismissal of the complaint. It merely directed the motion be brought at the hearing
itself”.
[36]
Second,
the AGC wrote at paragraphs 39 and 40 of his responding memorandum:
It is important to keep in mind that the
Inquiry Committee has not ruled on the motion Justice Cosgrove has indicated he
wishes to bring. It will be open to Justice Cosgrove to bring the motion at the
outset of the hearing, or at any other time during the hearing. The Inquiry
Committee will then decide, in accordance with the discretion conferred upon it
by Parliament to govern its own process, whether the motion should be decided
at the time the motion is brought or at a later point in the proceedings. The
issue falls entirely within the mandate and the specialized capacity of the
Inquiry Committee which will consider the submissions of both Justice Cosgrove
and Independent Counsel in determining how the important interests reflected in
the Boilard report will be balanced.
In any event, this question need not be
decided on this application. The prematurity of the question is a sufficient
basis in and of itself for this application for judicial review to be
dismissed.
Analysis and Conclusion
[37]
I
agree with the submission of the AGC, this judicial review application should
be dismissed on grounds of prematurity since the Inquiry Committee did not, in
its May 9, 2008 ruling, decide in any manner the substance of Justice
Cosgrove’s motion.
[38]
As
I read the record surrounding the context of the Inquiry Committee’s decision
reached by its members in discussion after hearing the counsel for the
applicant and Independent Counsel by telephone, I find the only issue which the
Inquiry Committee decided was to hear Justice Cosgrove’s Boilard motion
“at the time of the hearing in September”.
[39]
As
I see it, the Inquiry Committee retained complete discretion when it would hear
the motion i.e. prior to the opening of the case to be presented by Independent
Counsel and when it would rule on Justice Cosgrove’s Boilard motion i.e.
before the opening of Independent Counsel case or before or after the opening
of Justice Cosgrove’s case. The Inquiry Committee will make those rulings after
hearing the counsel for the parties in person in early September 2008 at the
time of the hearing. Simply put, the Inquiry Committee did not endorse or
reject the positions urged upon it by counsel for the parties during the
teleconference of May 9, 2008.
[40]
The
view I take is obvious from what was communicated to Messrs. Cherniak
and Paliare as to be the purpose of the May 9, 2008 telephone conference call.
The Inquiry Committee’s Chairperson, Chief Justice Finch made this clear in his
April 28, 2008 directive. Its purpose was solely one of procedure as to when
Justice Cosgrove’s Boilard motion should be addressed. Two options were
identified:
·
Option
one was to address the substance of the motion in advance of the September
hearing date in which case “the committee may either direct a further
telephone conference, or alternatively written submissions for that purpose”;
or
·
Option
two triggered if the Inquiry Committee was not persuaded as to option one in
which case “we may direct that it be heard at that time and ruled on
after hearing the evidence to be presented”.
[41]
It
is evident option one was not selected by the Inquiry Committee. As to option
two, the Inquiry Committee ruled that it would hear the substance of Justice
Cosgrove’s motion at the September hearing but did not rule when that motion
would be heard and did not direct that it would be ruled upon after hearing the
evidence to be presented.
[42]
In
summary, nothing was decided by the Inquiry Committee on May 9, 2008 except to
hear Justice Cosgrove’s motion “at the time of the hearing” in September 2008.
[43]
The
Inquiry Committee may decide to hear the Boilard motion at the outset
and may rule in Justice Cosgrove’s favour before the opening of his case which
is the fear he identified. On this basis, my view is this judicial review
application is clearly premature.
[44]
Counsel
for Mr. Justice Cosgrove, in argument, submitted the Inquiry Committee may not
deal with the Boilard motion in a manner which would fulfill its
constitutional purpose namely to operate as a screening mechanism for the summary
dismissal of an unmeritorious subsection 63(1) complaint by an Attorney
General. He suggested because the decision was ambiguous or incomplete, it
would be appropriate for this Court to issue a directive to the Inquiry
Committee on when it should hear his motion and when it should decide it.
Alternatively, he suggested this Court adjourn this judicial review application
in order to ensure review of the Inquiry Committee’s ruling (presumably if it
was adverse to Justice Cosgrove).
[45]
I
agree with counsel for the Attorney General, the Inquiry Committee’s May 9,
2008 decision is not ambiguous. The Inquiry Committee is also the master of its
own procedure and it is at the heart of its mandate to decide, after hearing
submission and on the particular facts of this case, how best to structure its
procedure to accomplish the purposes of Justice Cosgrove’s Boilard
motion.
[46]
In
the circumstances, this Court declines to issue any directives to the Inquiry
Committee, assuring it had jurisdiction to do so after having decided this
judicial review application is premature.
[47]
Finally,
this Court cannot, as suggested by Mr. Paliare, adjourn this judicial review
application in order to resurrect it after the Inquiry Committee rules on the Boilard
motion in this case. As counsel for the Attorney General pointed out, the Court
would be dealing with a different decision, on different facts and in different
circumstances.
[48]
For
these reasons, this judicial review application is dismissed without costs.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this judicial
review application is dismissed without costs.
“François Lemieux”
________________________
Judge
APPENDIX
A
|
Inquiries
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).
Investigations
(2) The Council may investigate any complaint or
allegation made in respect of a judge of a superior court.
Inquiry Committee
(3) The Council may, for the purpose of conducting an
inquiry or investigation under this section, designate one or more of its
members who, together with such members, if any, of the bar of a province,
having at least ten years standing, as may be designated by the Minister,
shall constitute an Inquiry Committee.
Powers of Council or Inquiry Committee
(4) The Council or an Inquiry Committee in making an
inquiry or investigation under this section shall be deemed to be a superior
court and shall have
(a) power to summon before it any person or witness and to
require him or her to give evidence on oath, orally or in writing or on
solemn affirmation if the person or witness is entitled to affirm in civil
matters, and to produce such documents and evidence as it deems requisite to the
full investigation of the matter into which it is inquiring; and
(b) the same power to enforce the attendance of any person
or witness and to compel the person or witness to give evidence as is vested
in any superior court of the province in which the inquiry or investigation
is being conducted.
Prohibition of information relating to
inquiry, etc.
(5) The Council may prohibit the publication of any
information or documents placed before it in connection with, or arising out
of, an inquiry or investigation under this section when it is of the opinion
that the publication is not in the public interest.
Inquiries may be public or private
(6) An inquiry or investigation under this section may
be held in public or in private, unless the Minister requires that it be held
in public.
R.S., 1985, c. J-1, s. 63; 1992, c. 51, s. 27; 2002, c. 8,
s. 106.
Notice of hearing
64. A judge in respect of whom an inquiry or
investigation under section 63 is to be made shall be given reasonable notice
of the subject-matter of the inquiry or investigation and of the time and
place of any hearing thereof and shall be afforded an opportunity, in person
or by counsel, of being heard at the hearing, of cross-examining witnesses
and of adducing evidence on his or her own behalf.
R.S., 1985, c. J-1, s. 64; 2002, c. 8, s. 111(E).
Report of Council
65. (1) After an
inquiry or investigation under section 63 has been completed, the Council
shall report its conclusions and submit the record of the inquiry or investigation
to the Minister.
Recommendation to Minister
(2) Where, in the opinion of the Council, the judge in
respect of whom an inquiry or investigation has been made has become
incapacitated or disabled from the due execution of the office of judge by
reason of
(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,
the Council, in its report to the Minister under
subsection (1), may recommend that the judge be removed from office.
R.S., 1985, c. J-1, s. 65; R.S., 1985, c. 27 (2nd Supp.),
s. 5; 2002, c. 8, s. 111(E).
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Enquêtes obligatoires
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).
Enquêtes facultatives
(2) Le Conseil peut en outre enquêter
sur toute plainte ou accusation relative à un juge d'une juridiction
supérieure.
Constitution d’un comité d’enquête
(3) Le Conseil peut constituer un
comité d’enquête formé d’un ou plusieurs de ses membres, auxquels le ministre
peut adjoindre des avocats ayant été membres du barreau d’une province
pendant au moins dix ans.
Pouvoirs d’enquête
(4) Le Conseil ou le comité formé pour
l’enquête est réputé constituer une juridiction supérieure; il a le pouvoir
de :
a) citer devant lui des témoins, les
obliger à déposer verbalement ou par écrit sous la foi du serment — ou de
l’affirmation solennelle dans les cas où elle est autorisée en matière civile
— et à produire les documents et éléments de preuve qu’il estime nécessaires
à une enquête approfondie;
b) contraindre les témoins à comparaître
et à déposer, étant investi à cet égard des pouvoirs d’une juridiction
supérieure de la province où l’enquête se déroule.
Protection des renseignements
(5) S’il estime qu’elle ne sert pas
l’intérêt public, le Conseil peut interdire la publication de tous
renseignements ou documents produits devant lui au cours de l’enquête ou
découlant de celle-ci.
Publicité de l’enquête
(6) Sauf ordre contraire du ministre,
les enquêtes peuvent se tenir à huis clos.
L.R. (1985), ch. J-1, art. 63; 1992, ch. 51, art. 27;
2002, ch. 8, art. 106.
Avis de l’audition
64. Le juge en cause doit être
informé, suffisamment à l’avance, de l’objet de l’enquête, ainsi que des
date, heure et lieu de l’audition, et avoir la possibilité de se faire
entendre, de contre-interroger les témoins et de présenter tous éléments de
preuve utiles à sa décharge, personnellement ou par procureur.
L.R. (1985), ch. J-1, art. 64; 2002, ch. 8, art. 111(A).
Rapport du Conseil
65. (1) À l’issue de l’enquête, le
Conseil présente au ministre un rapport sur ses conclusions et lui communique
le dossier.
Recommandation au ministre
(2) Le Conseil peut, dans son rapport,
recommander la révocation s’il est d’avis que le juge en cause est inapte à
remplir utilement ses fonctions pour l’un ou l’autre des motifs suivants :
a) âge ou invalidité;
b) manquement à l’honneur et à la
dignité;
c) manquement aux devoirs de sa charge;
d) situation d’incompatibilité, qu’elle
soit imputable au juge ou à toute autre cause.
L.R. (1985), ch. J-1, art. 65; L.R. (1985), ch. 27 (2e
suppl.), art. 5; 2002, ch. 8, art. 111(A).
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APPENDIX B
Draft Boilard Motion
THE MOTION IS FOR:
1. An
Order determining that there is no basis to proceed with any inquiry into the
allegations contained in the Notice to Justice Cosgrove dated February 29, 2008
(the “Notice”) in this matter.
THE
GROUNDS FOR THE MOTION ARE:
2
…
3
…
4
…
5.
Every
allegation in the Notice concerns the conduct of Justice Cosgrove in the
courtroom, while he presided over the trial before him, and the discretionary
judicial decisions he made in the course of those proceedings.
6.
When
exercising judicial duties, a judge is presumed, unless the contrary is
demonstrated, to have acted in good faith and with due and proper consideration
of the issues before him or her.
7.
The
Notice does not allege that Justice Cosgrove committed the alleged errors in
bad faith, or for an improper motive.
8.
The
allegations contained in the Notice fall into one of two categories:
a. allegations
that Justice Cosgrove committed errors of law; and/or
b. allegations
that Justice Cosgrove exhibited a bias against the Crown, either by:
i. making
findings against the Crown that were without basis; or
ii. conducting
the court’s proceedings in a manner that was unfair to the Crown.
9.
Neither
category of allegation is capable of sustaining a finding of judicial
misconduct. In particular:
a. errors of
law, however serious, are the exclusive domain of appellate courts and not
the
Canadian Judicial Council; and
b. conduct which
might give rise to an apprehension of bias, will not constitute judicial
misconduct,
unless it is established that the conduct was undertaken with the knowledge
that it was being done in bad faith, or for an improper motive.
10. In accordance
with the rule in Boilard, the Council will not proceed with inquiries
that lack the required foundation:
Except where a judge has been guilty of
bad faith or abuse of office, a discretionary judicial decision cannot form the
basis for any of the kinds of misconduct, or failure or incompatibility in due
execution of office, contemplated by clauses 65(2)(b), (c) or (d) of the Judges
Act nor can the circumstances leading up to such a decision do so.
11. In the
absence of any allegation that Mr. Justice Cosgrove engaged in any conduct that
was undertaken by him with the knowledge that it was being done in bad faith,
or for an improper motive this Inquiry Committee should decline to deal with
the matter further, on the grounds that the Notice contains no basis to
establish misconduct. As a result, there is no reason to continue the inquiry.
THE FOLLOWING
MATERIALS ARE REQUIRED FOR THE HEARING OF THE MOTION:
12. The following
materials are required for the hearing of this motion:
a. This Notice
of Motion;
b. The decision
of the Court of Appeal in R. v. Elliott;
c. The letter
dated April **, 2003 from Attorney General Michael Bryant to the Chief
Justice
Beverley McLachlin; and
d. The Notice to
Justice Cosgrove dated February 29, 2008 in this matter.
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