Docket: T-646-14
Citation:
2014 FC 1175
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, December 5, 2014
PRESENT: The Honourable Mr. Justice Martineau
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BETWEEN:
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MICHEL GIROUARD
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Applicant
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and
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THE INQUIRY COMMITTEE CONSTITUTED UNDER THE PROCEDURES FOR DEALING
WITH COMPLAINTS MADE TO THE CANADIAN JUDICIAL COUNCIL ABOUT FEDERALLY
APPOINTED JUDGES
AND
THE ATTORNEY GENERAL OF CANADA
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Respondents
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ORDER AND REASONS
[1]
An Inquiry Committee was constituted under the supposed
authority of subsection 63(3) of the Judges Act, RSC 1985, c J-1 (Act) to
investigate the conduct of the applicant, Justice Michel Girouard, when
he was a lawyer. In these judicial review proceedings, the applicant seeks to
have the decision to this effect dated February 11, 2014, by the Review Panel
of the Canadian Judicial Council (CJC) set aside. At the same time, the
applicant wishes to prevent the continuation of the inquiry and alternatively
seeks declarations of invalidity or inapplicability of the Canadian Judicial
Council Inquiries and Investigations By‑laws, SOR/2002-371 (By-laws) and
the Procedures for Dealing with Complaints made to the Canadian Judicial
Council about Federally Appointed Judges, effective since October 14,
2010 (Complaints Procedures).
[2]
As co-respondent, the Attorney General of Canada
now seeks to strike out the notice of application for judicial review filed on
March 13, 2014, by the applicant. Although an appearance was filed in the name
of the CJC—the Review Panel that made the impugned decision is named as co-respondent—and
that outside counsel was mandated to attend the hearing as an observer, the CJC
took no position. The present motion was heard by this Court concurrently with
the motion to strike filed by the Attorney General in the judicial review application
T-1557-14 (see decision: 2014 FC 1176).
[3]
The Attorney General alleges that, on its face,
this application for judicial review is premature. For the purposes of ruling
on this motion to strike, the facts alleged in the applicant’s proceedings must
be held to be true. The following relevant facts emerge from the allegations and
documents referred to in the notice of application for judicial review.
[4]
In passing, on November 20, 2014, at the opening
of the hearing of the motions to strike, the Court issued a non-disclosure
order and publication ban on the content of exhibits D-3 to D-7 and on all
confidential information in the Certified Tribunal Record. However, the Court
orders did not apply to the allegations and information that the parties or
their counsel voluntarily published and released in the proceedings and
documents filed with the Court and which are not subject to the confidentiality
order already issued on May 1, 2014.
[5]
The applicant is a federally appointed judge sitting
on the Superior Court of Québec since September 30, 2010. He was appointed
to the judiciary following an exemplary career in Abitibi, where he developed a
varied clientele and versatile professional expertise, notably in the areas of civil
law, criminal law, commercial law and administrative law.
[6]
However, the applicant was the subject of an
allegation by an informer who stated on May 17, 2012, as part of a criminal
investigation, that he sold cocaine to Michel Girouard, a lawyer at the time, until
late 1991 or late 1989, according to the various contradictory versions provided
by said individual to the police authorities. Moreover, a client of the applicant
was under police investigation when he was visited by the applicant (not long
before his appointment, according to the documentation on file). But the
applicant hastened to specify that they were documentary exchanges as part of a
professional solicitor-client relationship protected by the right to
professional secrecy.
[7]
Of course, the matter did not end there. On October
30, 2012, the Director of Criminal and Penal Prosecutions of the Province of
Quebec submitted the informer’s statement to the Chief Justice of the Superior Court
of Québec, the Honourable François Rolland. On November 30, 2012, Chief Justice
Rolland wrote (Exhibit D-3) to the CJC to [Translation]
“investigate the conduct [of the applicant] when he was a lawyer” (the complaint).
It is in this particular factual context that the investigation procedure provided
for in the Act was undertaken.
[8]
When a complaint regarding the conduct of a named,
federally appointed judge is filed, an administrative process involving six stages
is triggered: (1) the Executive Director of the CJC reviews the complaint and decides
whether it warrants opening a file; (2) if a file is opened, the Chairperson (or
Vice-Chairperson) of the Judicial Conduct Committee reviews the complaint and
may close the file or seek additional information; (3) if the file is not
closed, a Review Panel reviews the complaint and the judge’s written
submissions and decides whether the complaint may be settled at this stage or
whether it is serious enough to be referred to an Inquiry Committee; (4) if the
matter is referred, the Inquiry Committee holds a hearing, hears the evidence concerning
the complaint and submits to the CJC a report in which it records the findings
of the inquiry or investigation, including the conclusion as to whether the
judge’s removal from office should be recommended; (5) the CJC reviews the complaint
and makes a determination on its merits; and (6) the CJC reports its
conclusions, including the conclusion as to whether the judge’s removal from
office is recommended, and submits the record of the inquiry or investigation
to Minister of Justice.
[9]
In the case at bar, pursuant to section 5 of the
Complaints Procedures, the Vice‑Chairperson of the Judicial Conduct Committee
of the CJC, the late Honourable Edmond Blanchard, reviewed the file. He decided,
on October 22, 2013, to constitute a Review Panel made up of three judges, including
two Chief Justices, to consider the matter (Exhibit D-6), after first asking
outside counsel to make further inquiries (Exhibits D-4 and D-5). Then, on
February 11, 2014, the Review Panel decided to constitute an Inquiry Committee under
subsection 63(3) of the Act [Translation]
“because the matter may be serious enough to warrant [the]
removal [of the applicant] as a judge” (Exhibit D-7).
[10]
At the risk of repeating myself, in this application
for judicial review, filed on March 13, 2014, the applicant seeks to have
the decision to this effect dated February 11, 2014, by the Review Panel (the
impugned decision) set aside. He also seeks to have the By-laws and Complaints
Procedures invalidated or otherwise declared inapplicable, to the extent that
these instruments authorize the CJC or one of its committees to complete an
inquiry or investigation into the complaint currently against the applicant.
[11]
In essence, the applicant made three types of criticisms
of the impugned decision and of the inquiry and investigation procedures:
(a) Issues of jurisdiction. The Inquiry Committee does not have
jurisdiction to commence an inquiry or investigation into a complaint regarding
the conduct of the applicant [Translation]
“when he was a lawyer,” or into new allegations not included in the original
complaint of November 30, 2012 (Exhibit D-3). Subsection 1.1(2) of the
By-laws is unconstitutional to the extent that it allows for a substitute criminal
inquiry and an inquiry into matters within the exclusive jurisdiction of the
provinces under section 92.13 of the Constitution Act, 1867;
(b) Issues of administrative invalidity. The Complaints Procedures were not
published in accordance with the requirements of the Statutory Instruments
Act, RSC 1985, c S-22. Also, the powers delegated to the Review Panel are directly
contrary to the Act, which provides that it is the CJC (and not the Review
Panel) that constitutes an Inquiry Committee (subsection 63(3) of the Act). The
Complaints Procedures and the By-laws—particularly with regard to the scope of
the investigation or inquiry and the burden of proof—confer pure discretionary
powers, which is contrary to the principles of administrative law (or even constitutional
law); and
(c) Issues of procedural fairness. At stages two and three, outside
counsel, the Vice-Chairperson and the Review Panel systematically rejected the version
of the facts given by the applicant and the witnesses and only accepted those factors
that were most unfavourable to him, without providing him with a real opportunity
to verify through a cross-examination or other legal means, the validity of
those allegations. Furthermore, the Vice‑Chairperson violated section 9.2
of the Complaints Procedures by interfering in the work of the Review Panel, as
the reference (Exhibit D-6) involves an assessment of the evidence.
[12]
For his part, the Attorney General asks the Court
to strike the application for judicial review in its entirety as it is
premature. Indeed, the impugned decision is interlocutory in nature. Moreover, the
applicant is required to pursue all effective remedies that are available
within the CJC’s administrative inquiry process before filing an application
for judicial review with the Court. In this regard, the Inquiry Committee has full
authority to decide the questions of law and jurisdiction raised by the applicant.
[13]
The applicant replies that the Review Panel has
completed its task and that it is now functus officio. This is sufficient
to allow a superior court—here the Federal Court—to review the legality of the
[Translation] “final” decision so
rendered at this stage. Indeed, each new stage completed by the CJC undermines
the applicant’s reputation and causes him irreparable harm. He is therefore justified
in once again seeking judicial review of the decision of the Review Panel, especially
since the CJC does not have jurisdiction in this matter.
[14]
Without making a definitive ruling on the merits
of the arguments raised by the applicant in his notice of application for
judicial review, I find that the Attorney General’s motion seems to be well founded in this case.
[15]
It should be noted that pursuant to sections 18 and
18.1 of the Federal Courts Act, RSC 1985, c F-7 (FCA), “anyone directly affected by the matter in respect of which
relief is sought” may file an application for judicial review regarding
an act, decision, order or proceeding of a federal board, commission or other
tribunal, whereas the Court has the power to quash any decision so taken, strike
any unconstitutional, ultra vires or otherwise invalid act or regulation,
and prohibit the continuation of any proceeding unlawfully instituted by the
federal board, commission or other tribunal.
[16]
However, subsection 18.4(1) of the FCA stipulates
that an application for judicial review “shall be heard
and determined without delay and in a summary way.” Generally, motions
to strike are not present in such matters. Nevertheless, as the Federal Court
of Appeal determined in David Bull Laboratories (Canada) Inc v Pharmacia Inc,
[1995] 1 FCJ 588, 1994 CanLII 3529 (FCA), the striking out of an application
for judicial review may be granted when a pleading “is so clearly
improper as to be bereft of any possibility of success.”
[17]
In the case at bar, the impugned decision rendered
by the Review Panel is an interlocutory decision that does not make a
determination on the merits of the case. I am satisfied in this case that this
is one of those exceptional cases where in the exercise of his judicial discretion,
the motions judge can summarily strike a judicial procedure because it is
premature. Furthermore, the trial judge has the same discretion to grant the
motion to dismiss or to refuse to hear on the merits an application for judicial
review that he or she considers premature (Boulos v Canada (Attorney General),
2013 FC 1047, at paragraphs 26-31; Canadian Pacific Ltd v Matsqui Indian
Band, [1995] 1 S.C.R. 3, 1995 CanLII 145 (SCC), at paragraphs 30-37 (Canadian
Pacific Ltd)).
[18]
The classic scheme, the cornerstone of the
Attorney General’s reasoning, is well-known. Judicial resources are limited and
should be saved to ensure that all people have equal, timely and fair access to
courts. Also, as a general rule, an applicant can proceed to the court system
for legal redress only after the administrative process to which he or she is subject
has been completed and all effective remedies have been exhausted (Canada (Border
Services Agency) v CB Powell Limited, 2010 FCA 61, at paragraphs 30-33 (CB
Powell)). Exceptionally, however, the courts may interfere at a preliminary
stage (CB Powell, above, at paragraph 33; Halifax (Regional
Municipality) v Nova Scotia (Human Rights Commission), 2012 SCC 10, at paragraph
35 (Halifax); Douglas v Canada (Attorney General), 2014 FC
299, at paragraph 128 (Douglas) [judgment under appeal].
[19]
There is no reason to depart from this general
model. Waste is a serious disorder affecting any powers exercised lightly and
at any time, but strict discipline avoids wasting judicial resources. Judicial
intervention at a preliminary stage will necessarily be the exception. It is
not insignificant to note that the doctrine of exhaustion of remedies seeks to
achieve a number of legitimate objectives, including those of preventing fragmentation of the administrative process and piecemeal
court proceedings, eliminating the large costs
and delays associated with premature forays to court when the applicant
may succeed at the end of the administrative process challenged. Further, only at the end of the administrative process will a reviewing
court have all of the administrative decision-maker’s findings; these findings
may be suffused with expertise, legitimate policy judgments and valuable
experience in the area of expertise of the administrative
decision-maker (CB Powell, above, at paragraph 32).
[20]
In Moreau-Bérubé v New Brunswick (Judicial Council),
[2002] 1 RCS 249, 2002 SCC 11, at paragraphs 50-51, the Supreme Court stated
the following regarding the unique expertise of the New
Brunswick Judicial Council, which performs a function similar to the CJC
in disciplinary matters:
…It is obvious that
membership in this tribunal requires, in most cases, vast legal training. As
compared to a single judge from the Court of Queen's Bench, it would have to be
assumed that the Council is at least as qualified, and likely more qualified in
light of its collegial composition, to draw conclusions where considerations
of judicial independence, security of tenure and apprehension of bias are
concerned. 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. . . . [T]he fact that the Council is engaged in this special and unique role
gives it some degree of specialty not enjoyed by ordinary courts of review who
have never, historically, been involved in such matters. [Emphasis added.]
[21]
The expertise exercised institutionally by the CJC
and the Inquiry Committee covers specialized fields of law. This would include ethics
and conduct, the interpretation of the scope of the Act and By-laws, judicial
independence and security of tenure, all aspects potentially affected by this
application for judicial review. However, it is true that regarding the issue
of interpretation and application of the Statutory Instruments Act, this
Court has expertise that the Inquiry Committee does not (see for example Canadian
Society of Immigration Consultants v Canada (Citizenship and Immigration),
2011 FC 1435, at paragraphs 164-170; CJRT Developments Ltd v Canada,
[1983] 2 FC 410, [1983] FCJ No 56, at paragraphs 8-10; Canada (Attorney
General) v Prism Helicopters Ltd, 2007 FC 1346, at paragraphs 32-38). However,
this does not prevent the Inquiry Committee to address and determine the issue,
subject to the possibility that its decision may be further reviewed on the
standard of reasonableness—like any other jurisdictional or constitutional issue.
[22]
I also agree with the learned counsel for the applicant
when they state that the constitutional issue raised in the application for
judicial review involves a true question of jurisdiction. As the Supreme Court
stated in Dunsmuir v New Brunswick, 2008 SCC 9, at paragraph 59 (Dunsmuir):
“Jurisdiction” is intended in the narrow sense
of whether or not the tribunal had the authority to make the inquiry. In other words,
true jurisdiction questions arise where the tribunal must explicitly determine
whether its statutory grant of power gives it the authority to decide a
particular matter. The tribunal must interpret the grant of authority correctly
or its action will be found to be ultra vires or to constitute a wrongful decline of jurisdiction.
If it is true that
no deference is owed to the administrative tribunal in this area, it is
nevertheless trite law that constitutional questions are not decided by reviewing
courts in a factual vacuum (Beattie v Canada, 2006 FC 24, at paragraph
18; Kitkatla Band v British Columbia (Minister of Small Business, Tourism and
Culture), [2002] 2 S.C.R. 146, 2002 SCC 31, at paragraph 46; British
Columbia (Attorney General) v Christie, [2007] 1 S.C.R. 873, 2007 SCC 21, at paragraph
28).
[23]
Indeed, to ensure consistency, during the
hearing of the Attorney General’s motions to strike, I asked counsel if, in
their opinion, the Inquiry Committee was a [Translation]
“tribunal” for purposes of determining any constitutional question, including
that of the violation of the constitutional principle of security of tenure of
judges expressly alleged by the applicant in the notice of application for
judicial review. I would have to answer this question in the affirmative.
[24]
According to Nova Scotia (Workers’
Compensation Board) v Martin, 2003 SCC 54 (Martin) and Paul v
British Columbia (Forest Appeals Commission), 2003 SCC 55 (Paul),
certain criteria must be met in order for an administrative tribunal to have the
power to apply the Constitution. It must first be noted that in Martin, above,
the Supreme Court stressed the fact that individuals should
be entitled to assert the rights that the Constitution guarantees them in the
most accessible forum available, without the need for parallel proceedings
before the courts (at paragraph 29). Obviously, not just any
administrative tribunal will however have the power to apply the Constitution. As
stated by the Supreme Court, only administrative tribunals which are implicitly or explicitly granted by the empowering
legislation the jurisdiction to interpret or decide any question of law will have the power
to apply the Constitution (Martin, above, at paragraphs 34-36; Paul,
above, at paragraph 8). The relevant question in each case is therefore whether
“the express grant of jurisdiction confers upon the
tribunal the power to decide questions of law arising under the challenged
provision, in which case the tribunal will be presumed to have jurisdiction to
decide the constitutional validity of that provision” (Martin, above,
at paragraph 39).
[25]
In Martin, supra, the Court identified a
number of factors to be taken into account absent an explicit grant:
41 Absent an
explicit grant, it becomes necessary to consider whether the legislator
intended to confer upon the tribunal implied jurisdiction to decide questions
of law arising under the challenged provision. Implied jurisdiction must be
discerned by looking at the statute as a whole. Relevant factors will include
the statutory mandate of the tribunal in issue and whether deciding questions
of law is necessary to fulfilling this mandate effectively; the interaction of
the tribunal in question with other elements of the administrative system;
whether the tribunal is adjudicative in nature; and practical considerations,
including the tribunal's capacity to consider questions of law. Practical
considerations, however, cannot override a clear implication from the statute
itself, particularly when depriving the tribunal of the power to decide
questions of law would impair its capacity to fulfill its intended mandate. As
is the case for explicit jurisdiction, if the tribunal is found to have implied
jurisdiction to decide questions of law arising under a legislative provision,
this power will be presumed to include jurisdiction to determine the
constitutional validity of that provision.
[26]
Having considered the Act as a whole and the
factors referred to in Martin, above, I am of the view that the Inquiry
Committee—contrary to the Review Panel—has implied
jurisdiction to decide questions of law arising under the relevant provisions
of the Act and By-laws. This includes, first and foremost, the issue of the
scope of its inquiry, but also any issue involving aspects essential to the
exercise of its inherent jurisdiction over allegations lodged against a magistrate
who is still in office. Consider, for example, the determination of the burden
of proof and the use of any objection to the evidence flowing from the
protected nature of acts subject to solicitor-client privilege, which,
incidentally, the applicant raises in his notice of application.
[27]
Moreover, I note that subsection 63(4) of the Act
specifies that in making an inquiry or investigation, the Committee and the CJC
shall be deemed to be a “superior court.” However, for the CJC to be
considered a true “superior court”—a claim dismissed in Douglas, above,
at paragraph 102 (also, the Inquiry Committee concluded in Gratton and
then in Flahiff, that is was not a superior court)—or simply a federal
board, commission or other tribunal when it investigates the conduct of a judge
under the Act, it must be presumed that the Inquiry Committee also has
jurisdiction to rule on any constitutional argument the applicant wishes to put
forward (see Inquiry Committee’s decision on preliminary issues in the case
of Mr. Justice Robert Flahiff of the Superior Court of Quebec, Montréal, April
9, 1999).
[28]
This presumption of jurisdiction that may be attributed
to the Inquiry Committee is supported by the very wording of subsection 57(1)
of the FCA, which prescribes that the Attorney General of Canada and the
attorney general of each province are entitled to notice made in respect of a
constitutional question when a party intends to challenge before the Federal
Court of Appeal or the Federal Court or a federal board, commission or other
tribunal, the constitutional validity, applicability or operability of an
Act of Parliament or of the legislature of a province, or of regulations made
under such an Act. That said, a federal board, commission or other tribunal may
on its own initiative refer a constitutional question to the Federal Court—as
well as any question or issue of law, of jurisdiction or of practice and
procedure —or do so at the request of the Attorney General (subsections 18.3(1)
and (2) of the FCA; Canadian Pacific Ltd, above, at paragraph 58; Northern
Telecom v Communication Workers, [1983] 1 S.C.R. 733).
[29]
However, in CB Powell, above, the Federal
Court of Appeal stated that issues of procedural fairness or bias, and the presence of an important legal issue are not “exceptional circumstances” permitting
early recourse to the courts, as long as the
administrative process in place allows the
issues to be raised and an effective remedy to be granted (at paragraph
33). Even the issue of reasonable apprehension of institutional
bias cannot be decided summarily and on the
wording of the by-laws or regulations alone without knowing how the
administrative tribunal applies them in actual practice (Canadian Pacific
Ltd, at paragraph 111).
[30]
In the present case, the Review Panel
responsible for reviewing the complaint regarding the applicant’s conduct
decided to refer the matter to an Inquiry Committee. It seems to me that some
parallel can be drawn with Halifax, above. It may be recalled that the
Municipality of Halifax sought judicial review of the
Nova Scotia Human Rights Commission’s decision to refer the complaint
against it to a board of inquiry. The Supreme Court was very clear regarding the risks of premature intervention by the courts:
[36] While such
intervention may sometimes be appropriate, there are sound practical and
theoretical reasons for restraint. . . . Early
judicial intervention risks depriving the reviewing court of a full record
bearing on the issue; allows for judicial imposition of a “correctness”
standard with respect to legal questions that, had they been decided by the
tribunal, might be entitled to deference; encourages an inefficient
multiplicity of proceedings in tribunals and courts; and may compromise
carefully crafted, comprehensive legislative regimes. . . . Thus, reviewing courts now show more restraint in
short-circuiting the decision-making role of the tribunal, particularly when
asked to review a preliminary screening decision such as that at issue in Bell (1971).
[37] Moreover,
contemporary administrative law accords more value to the considered opinion of
the tribunal on legal questions, whether the tribunal’s ruling is ultimately
reviewable in the courts for correctness or reasonableness. . . . (Halifax,
above, at paragraphs 36-37; citations omitted.)
[31]
The analysis of Justice Evans, then of this
Court, in Air Canada v Lorenz, [2000] 1 FCR 494, 1999 CanLII 9373 (FC) (Lorenz)
is also very useful. That case concerned an application for judicial review of
a refusal by an adjudicator to recuse himself on the
ground of bias. Justice Evans then made the following comments:
[9] I invited
counsel to make their submissions on whether this application for judicial
review should be dismissed for prematurity as part of their argument on the
merits, and not as a preliminary objection. Hearing the case in its entirety
has provided a valuable context within which to consider the exercise of my
discretion over the grant of relief.
[10] However, this
does not necessarily mean that the allegation of bias should be decided before
the Court considers the exercise of its remedial discretion. As Vertes J. in Woloshyn
v. Yukon Teachers Association, [1999] Y.J. No. 69 (Yuk. S.C.) pointed out,
it would seem quite inappropriate to compel an applicant to complete an
administrative hearing before a tribunal which a reviewing court has found to
be disqualified by bias.
[11] But it does
not follow, either, that an applicant is entitled to have a bias question
determined at any time of its choosing, simply for the asking. The time and
resources put into preparing the written submissions and making the oral
argument are not necessarily wasted if it is not. Should the matter be brought
back to the court on the issue of bias after the tribunal has rendered its
final decision, counsel will already have done most of the necessary work.
[32]
Justice Evans then identified various factors relevant
to the exercise of judicial discretion: (1) the hardship to the applicant if
the administrative process continued without the Court’s intervention (at
paragraphs 19-21); (2) the waste if the applicant had to follow the
administrative process until the end and then, only if a negative decision rendered
against it, it had to re-apply for judicial review with respect to the same
issue (at paragraphs 22-23); (3) the delay in the administrative process caused
by the Court’s intervention and the possible impact on other proceedings if
parties used this process for the purpose of delaying the proceedings, or forcing the more vulnerable party to surrender (at
paragraphs 24-25); (4) the fragmentation of the issues that may proliferate litigation because immediate
intervention would not prevent either party from making an application for
judicial review of the ultimate decision made by the
administrative body (at paragraph 26); and (5) the strength of the
applicant’s case (at paragraphs 27 et seq). As indicated by Justice
Evans, these factors must be evaluated, not only on
the basis of the facts of the particular case, but also in the applicable
statutory context (at paragraphs 33-35). In Lorenz, above,
Justice Evans held that the application for judicial
review was premature after all the relevant factors were evaluated.
[33]
Surely, one would agree that after all these
general warnings in the case law, it would be judicially lax not to take into
consideration the long delays and enormous costs that would result if I were to
accept the applicant’s claim that he is allowed, at each stage of the review
and inquiry process, to consider the lawfulness of any interlocutory decision.
However, there is an exception to every rule. That is why I also considered
various decisions involving the conduct of judges, and more particularly, cases
where the issue of the exhaustion of remedies may have been raised. I must
conclude that this application does not fall within the category of rare and
exceptional cases justifying early intervention by the Court.
[34]
In Gratton v Canadian Judicial Council,
[1994] 2 FCR 769, 1994 CanLII 3495 (FC) (Gratton), Justice Strayer, then
of this Court, ruled on an application for judicial review challenging the
preliminary decision rendered by the Inquiry Committee on constitutional issues.
The Court therefore allowed the investigation to continue, but modified in part
the decision of the Committee to the extent that it is inconsistent with his finding . . . “that a judge can only be removed for breach of good
behaviour and that the failure to perform the functions of the office of judge
by reason of permanent infirmity would constitute a breach of that condition of
tenure” (Gratton, above).
[35]
It is not an insignificant
matter that in Gratton,
the Inquiry Committee initially decided constitutional issues, after a notice
of constitutional question was served on the Attorneys General and the Attorney
General’s participation. The Inquiry Committee then decided that it had
jurisdiction to continue the inquiry (Inquiry Committee’s decision regarding
its jurisdiction to conduct an inquiry about Mr. Justice Gratton of the Ontario
Court of Justice, Ottawa, January 26, 1994). In this case, the
Inquiry Committee has not yet commenced its inquiry and it has not been given
the opportunity to rule on the issue of jurisdiction or the invalidity of the
By‑laws and Complaints Procedures as a matter of constitutional or
administrative law.
[36]
In Cosgrove v Canada (Attorney General),
2008 FC 941, my former colleague Justice Lemieux dismissed an application for
judicial review on the ground of prematurity regarding the Inquiry Committee’s
decision to hear a Boilard motion at the time of the hearing on the
merits.
[37]
More recently, in Douglas, above, the
Court intervened early in the inquiry and investigation into the conduct of a
federally-appointed judge that had not yet been completed. The CJC raised
before the Court three grounds for demonstrating the prematurity of the
application, namely:
(1) the failure of
the applicant to exhaust alternative remedies within the CJC process;
(2) the applicant's challenges to interlocutory
rulings of the Inquiry Committee were brought before the proceedings were
completed; and (3) the applicant raised issues
for the first time on judicial review, without first raising the issue with the
decision-maker and obtaining reasons thereon. (At paragraph 131.)
[38]
In that case, my colleague Justice Mosley
indicated that under ordinary circumstances, the application for judicial
review of the interlocutory decisions of the Inquiry Committee would not have
been subject to judicial review:
[142] Had the
controversy over the resignation of Mr. Pratte not erupted, I would have
concluded that the application initially filed by the applicant was premature
applying the factors set out in Lorenz, above. It seems to me that the harm allegedly caused to
the applicant by the instructions given to Committee Counsel and his vigorous
cross-examination of two key witnesses would not have justified interfering
with the inquiry before it had concluded its work. Had the committee ultimately
found in the applicant's favour there would have been no need for judicial
review. I am not persuaded that the risk of any further harm to the applicant's
interests by the continuation of the inquiry would have been irreparable or
that the actions taken by the Committee up to the point of the recusal motion
amounted to a breach of procedural fairness vitiating the Committee's
jurisdiction.
[143] Given Mr.
Pratte’s resignation shortly after he had filed a separate application for
judicial review, however, the applicant was correct to pursue her efforts to
determine what had occurred. In doing so, I am satisfied that she exhausted all
available administrative remedies before bringing the issue of institutional
bias before the Court.
[39]
It should be noted that the applicant’s file is
only at the beginning of the fourth stage, and the factual situation, as it
exists today, appears to me far different from that in Douglas, above.
The information gathered to date by outside counsel or the Review Panel is not
evidence. The applicant has yet to be [Translation]
“judged.” However, there is no allegation of bias or interference with the
independence of counsel having to pursue the matter before the Inquiry
Committee. And most importantly, we do not make assumptions: things are not
always what they seem at first glance. No witness has been heard. Everyone’s
credibility will have to be assessed exclusively by the Inquiry Committee—if it
eventually states it has jurisdiction. It must therefore be presumed at this
stage that the members of the Inquiry Committee are objective, free of
preconceived ideas, and that they will only form an opinion after hearing all
the evidence and considering all explanations, if any, provided by the
applicant.
[40]
Although the representative for the Attorney
General seemed to be of the view at the hearing that it is only at the
conclusion of the sixth stage that an application for judicial review may be
brought by the applicant—a claim not held in Douglas, above, and on
which it is not necessary to provide a final ruling today—it is sufficient to
decide that at this stage of the file, the applicant must, at a minimum, await
the conclusion of the fourth stage. The fact is that, on the one hand, neither
the Inquiry Committee, nor independent counsel, are bound by the Review Panel’s
report, and that, on the other hand, the notice to be given pursuant to the Act
and By-laws, has yet to be provided to the applicant, which makes it virtually
impossible at this stage to conduct an informed review of the applicant’s
multiple arguments.
[41]
Nor is it clear, at this stage that this
application for judicial review stands a very good chance of being allowed on
the merits. Beyond the question of prematurity, while he recognizes that this
application is neither perverse nor frivolous, the Attorney General also
submits that the true question is not whether the Inquiry Committee has the
power to investigate any alleged criminal acts, but to determine whether the
past conduct of the applicant could render him incapacitated or disabled from
the due execution of the office of judge because the facts alleged against the
applicant, if proven, constitute “having been guilty of misconduct,” “having
failed in the due execution of that office,” or “having been placed, by his or
her conduct or otherwise, in a position incompatible with the due execution of
that office” (paragraphs 65(2)(b), (c) and (d) of the Act;
by way of analogy, Therrien (Re), [2001] 2 S.C.R. 3, 2001 SCC 35). Again,
without ruling on the merits, I am of the view that it is more prudent to have
the matter of jurisdiction resolved by the Inquiry Committee once the applicant
has had a chance to read the notice and make any useful objections.
[42]
I am not trying to trivialize this matter. The
allegations reviewed by the Review Panel are serious. The applicant’s
reputation is truly at stake. His personal life and professional career are
also at stake. Out of necessity, this is an urgent matter. There have already
been considerable delays. The applicant is still in a situation of uncertainty.
Indeed, although independent counsel was appointed and the composition of the
Inquiry Committee was publicly announced on June 18, 2014 (see the other
decision rendered today in T‑1557-14, 2014 FC 1176, at paragraphs 1 and
2), the applicant has yet to be formally notified of the “complaints or
allegations” that the Inquiry Committee intends to investigate pursuant to
section 64 of the Act and subsection 5(1) of the By-laws.
[43]
At the same time, despite the delays encountered
to date, the applicant shall be given sufficient notice to enable him “to
respond fully to them” (subsection 5(2) of the By-laws). Moreover, the
protections offered by the Act and By‑laws to the applicant are not
fictitious. The Inquiry Committee must conduct its inquiry or investigation in
accordance with the principle of fairness and ensure that a judge in respect of
whom an inquiry or investigation is to be made 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
(section 64 of the Act and section 7 of the By-laws). One would therefore
imagine that before the Inquiry Committee accepts into evidence the informer’s
statement, the applicant will have had an opportunity to cross-examine the
deponent.
[44]
This is why I reject the applicant’s submission
that the Review Panel’s decision is in itself determinative or that a breach of
the rules of procedural fairness may have tainted the entire review process (McBride
v Canada (National Defence), 2012 FCA 181, at paragraphs 41-45, affirming
2011 FC 1019). The Inquiry Committee does not sit in appeal of a decision of
the Review Panel. I am referring here to a de novo process. From a
procedural fairness perspective, regardless of the previous criticisms of the
applicant, the Act and By-laws contain, with respect to the inquiry itself,
very important procedural safeguards. They ensure adequate protection of the
rights of applicants who wish, in particular, to cross-examine those who made
allegations against them.
[45]
It is also impossible at this stage to foresee
the course of events. Is it possible that allegations previously considered by
the Review Panel will not be subject to an inquiry or investigation or will be
withdrawn? I have no clue. Based on explanations by the representative for the
Attorney General at the hearing, the Court understands that it will be up to
the independent counsel to review the file and determine for herself “impartially and in accordance with the public interest”
what specific evidence will be adduced at the hearing (subsections 3(3) and
5(2) of the By-laws). The Court must also assume at this stage that nothing in
the file (Exhibits D-3 to D-7) was submitted to the Inquiry Committee. By this
reasoning, the investigation previously conducted by the Review Panel, although
it may have been inquisitorial, did not compromise the applicant’s fundamental
right to defend himself, as part of an adversarial process before the Inquiry
Committee involving the particular facts that may be alleged against him.
[46]
As for the continued harm that may be done to
the applicant if a further inquiry is made, it will essentially consist of
moral and pecuniary damages that may result from unwarranted harm to his
reputation in the event that the complaint or allegations made against him are,
in the end, proven to be unfounded in this case. However, concrete measures
have already been taken to protect the applicant’s reputation by both the CJC
and the Court. Thus far, all the evidence in the CJC’s record (Exhibits D-3 to
D-7) has remained confidential. Although the Inquiry Committee conducts
hearings in public, it may, nevertheless, order that all or any part of a
hearing be conducted in private and prohibit the publication of any information
or documents placed before it (subsections 63(5) and (6) of the Act; section 6
of the By-laws). Obviously, this includes all
evidence in the CJC’s record (Exhibits D-3 to D-7), supposing that the
independent counsel decides to file in evidence before the Inquiry Committee
all such evidence in the record, which is not obvious at this stage, because
Exhibits D-3 to D-7 contain information that could reveal current or prior
criminal investigations, whereas the report by outside counsel (Exhibit D-5) is covered by legal advice privilege and/or public interest privilege (Slansky v Attorney
General of Canada, 2013 FCA 199, at paragraph 9).
[47]
In closing, I must also make a trite
observation: nothing prevents the applicant from filing a motion with the
Inquiry Committee for a stay of proceedings (or for recusal if he feels there
is a reasonable apprehension of bias) and from raising the administrative and
constitutional law arguments that are also mentioned in his notice of
application for judicial review. The applicant raises several key issues, some
of public interest, that should preferably be decided on a preliminary basis by
the Inquiry Committee. Moreover, in the past, Review Panels have already had to
dispose of various preliminary issues of jurisdiction, evidence and even
constitutional law. While it may not be clear in the case law that the Inquiry
Committee has the power to issue a declaratory judgment having the force of res
judicata for all of Canada, it may, nevertheless, refuse to apply
legislation that is unconstitutional or contrary to the Canadian Charter of
Rights and Freedoms, if it finds that the By-laws, or the Complaints
Procedures, are inconsistent with the Act or the Constitution. This is
sufficient to persuade me, at this stage, that effective remedies are available
to the applicant and that it is up to him to exhaust those remedies prior to
going before the Court.
[48]
Because this application for judicial review is
premature, the Attorney General’s motion to strike shall be allowed by the
Court, without costs.
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