Docket: T-646-14
Citation:
2015 FC 307
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Montréal, Quebec, March 11, 2015
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 REVIEW PANEL 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]
The applicant, the Honourable Michel Girouard, is
asking that the Court’s order striking his application for judicial review be
set aside. For the purposes of ruling on this motion to set aside, the Court
has considered all the documentation already submitted by the parties in T-646-14
and T‑1557‑14 in light of the additional evidence, the written submissions
filed with the motion records and replies of the parties, and the oral
arguments of counsel at the hearing of February 24, 2015.
[2]
It should be noted that on December 5, 2014, the
Court allowed the motion to strike filed by the Attorney General of Canada (respondent)
in this matter, on the ground that the application for judicial review was premature:
Girouard v Attorney General of Canada et al, 2014 FC 1175 (Girouard 1).
At the same time, the Court allowed the motion to strike filed by the Respondent
in T-1557-14 because the application for judicial review did not disclose a reasonable
cause of action: Girouard v Attorney General of Canada and al, 2014 FC 1176
(Girouard 2).
[3]
Briefly, the applicant now seeks the Court not
only to set aside its order of December 5, 2014, in this matter, but also
to order a complete stay of proceedings before the Canadian Judicial Council (CJC).
The applicant alleges that he has recently discovered the existence of a “matter”
in the CJC’s record that shows, first, that the principle of separation
was not observed, resulting in an irremediable lack of procedural fairness, and
second that the inquiry commenced before the Inquiry Committee in his absence,
which infringes his right to a full answer and defence.
[4]
Concurrently with the Applicant’s motion to set
aside, the CJC asked for intervener status. On February 24, 2015, the Court granted
in part the motion to intervene before hearing the oral submissions of the
parties on the merits of this motion to set aside.
[5]
On February 23, 2015, on instructions of
the Court, the CJC served and filed the following draft order:
[Translation]
The Court authorizes the Canadian Judicial
Council to intervene in this case and grants it intervener status, with all the
rights accorded to a party, including the right to submit a file containing
documents and evidence, including an affidavit, the right to make oral
submissions at the hearing, the right to appeal the decision and any other
right enjoyed by a party in connection with the motion to set aside the
decision rendered on December 5, 2014, but only in regard to the following:
All allegations concerning the integrity of
the inquiry process, the Council’s inadequate application of its own inquiry
process through its By-laws, Procedures and enabling legislation,
and in particular allegations of irremediable lack of procedural fairness,
infringing a fundamental principle of “separation”
of each step in the inquiry process, and commencing the inquiry in the applicant’s
absence, thus infringing his fundamental right to a full answer and defence.
Without costs.
[6]
It is very difficult for me to see, in the above
draft order, a [Translation] “conservatory
intervention” as one of CJC’s counsel claimed at the hearing. An administrative
tribunal is not generally allowed to defend the merits of a decision disputed
on judicial review. And, by and large, as so eloquently put in Northwestern
Utilities Ltd et al v Edmonton, [1979] 1 S.C.R. 684, at page 710: “To allow an administrative board the opportunity to justify
its action and indeed to vindicate itself would produce a spectacle not
ordinarily contemplated in our judicial traditions.”
[7]
Moreover, the Federal Court of Appeal, in Canada
(Attorney General) v Quadrini, 2010 FCA 246, at paragraphs 15 to 24 (Quadrini),
aptly summarized why the common law restricts the scope of an administrative
tribunal’s submissions in a judicial review proceeding. Besides the principle
of the finality of decisions, there is the principle of impartiality. The problem is not only with respect to the unpleasant
[Translation] “spectacle” that tarnishes the image of impartiality
to be ascribed to the decision maker, which must be maintained in the interests
of justice. Worse yet is the fact that the CJC is very poorly placed to
defend before this Court, in any manner whatsoever, its actions in a matter,
all the more so as in this case, the inquiry before the Inquiry Committee is
not yet completed, and the CJC might subsequently be called upon to sit, as a
full board, to consider this case.
[8]
The range of remedies
available to a court sitting on judicial review may be
severely affected, ultimately, by aggressive interventions (Samatar v Canada
(Attorney General), 2012 FC 1263, at paragraphs 41, 181, 185 and 186 (Samatar)).
A fair distance must necessarily be kept. Here is, essentially, what Stratas J.
reminds us of at paragraph 16 of Quadrini, above:
When a court allows an application for judicial
review, it has a broad discretion in the selection and design of remedies: MiningWatch Canada v. Canada (Fisheries and Oceans), 2010 SCC 2, [2010] 1 S.C.R. 6. One
remedy, quite common, is to remit the matter back to the tribunal for
redetermination. If that happens, the tribunal must redetermine the matter, and
appear to redetermine it, impartially, with an open mind. Submissions by the
tribunal in a judicial review proceeding that descend too far, too intensely,
or too aggressively into the merits of the matter before the tribunal may
disable the tribunal from conducting an impartial redetermination of the merits
later. Further, such submissions by the tribunal can erode the tribunal’s
reputation for evenhandedness and decrease public confidence in the fairness of
our system of administrative justice. [Emphasis added.]
[9]
At the risk of repeating myself, I will say that
the Review Panel constituted under the Procedures
for dealing with complaints made to the Canadian Judicial Council about
federally appointed judges, in force between October 14, 2010, and
April 3, 2014 (Procedures), should not have been named at the outset by the applicant
as co-respondent in the notice of application for judicial review. Furthermore,
the Inquiry Committee constituted under the presumed authority of subsection 63(3)
of the Judges Act, RSC 1985, c. J-1 (Act) and of section 2 of the Canadian Judicial Council Inquiries and Investigations By-laws, SOR/2002-371 (By-laws),
has not yet sat publicly, nor has it ruled on the preliminary motions of the
independent counsel and of the applicant in this matter. The applicant says
today that the inquiry before the Inquiry Committee commenced in his absence.
That alone does not make a respondent, since it must be presumed that the Inquiry
Committee has jurisdiction at this point in the proceedings (Girouard 1,
above, at paragraph 26).
[10]
Because, let us recall, according to subsections
303(1) and (2) of the Federal Courts Rules, SOR/98-106 (Rules), the
tribunal whose decision or competence is disputed must not be named as a
respondent. Where no one can be named by default as respondent under the Rules
or a statute, the Attorney General of Canada is named as respondent. To date, however,
the Attorney General of Canada has not applied, under subsection 303(3) of the
Rules, to be replaced by the CJC, and it is far from clear that such a motion
would be allowed by the Court (see Douglas v Canada (Attorney General),
2013 FC 451).
[11]
The respondent is not in conflict of interest in
this case, though we have to expect that it will be the one to intervene before
the Inquiry Committee (Girouard 1, above, at paragraphs 23-26), and
in judicial review proceedings if there are any, to support the validity and
constitutionality of the provisions of the By-laws and Procedures that the applicant
is attacking (Canada (Attorney General) v Sam Lévy & Associés Inc.,
2005 FC 171; Sam Lévy & Associés Inc. v Mayrand, 2005 FC 702, affirmed
by 2006 FCA 205). Nor is there talk of the CJC initiating an inquiry under
subsection 63(1) of the Act to consider the removal of a judge from office at
the request of the minister of Justice or an attorney general of a province, as
in Boilard and Cosgrove, but rather of an “ordinary complaint”
made under subsection 63(2) of the Act.
[12]
In this regard, should no other interested party
come forward to uphold the legality of the impugned decision, the Attorney
General’s intervention before the Federal Court should tend towards being that
of an amicus curiae, although the Attorney General has more latitude
than an amicus curiae. After all, the respondent represents the public
interest: Samatar, above, at paragraphs 43 and 44. Questions of
independence or institutional impartiality fall within the area of expertise of
the Attorney General of Canada. The fact remains that for the purposes of the
debate before the Court today, the respondent should, first and foremost,
enlighten the Court, in an objective and comprehensive way, about the
applicable law and the facts referred to in the proceedings, without hunting for
justifications that are not provided by the tribunal itself in the impugned decision
(or in the letters of the CJC). Now, up to today, the Respondent has acquitted
itself very well of this delicate task.
[13]
Having considered and weighed up all the
relevant factors (Rothmans, Benson & Hedges v Canada (Attorney General),
[1990] 1 FC 74, [1989] FCA No. 446, at paragraph 12, affirmed by [1990] 1 FC 90
(FCA); Canada (Attorney General) v Pictou Landing Band Council and Maurina
Beadle, 2014 FCA 21, at paragraph 11), and noting moreover that the CJC has
never expressed a desire to intervene in the present matter (Girouard 1,
above, at paragraph 2), this Court, on February 24, 2015, nonetheless
authorized the production, in the interests of justice, of an affidavit
completed by the Executive Director and Senior General Counsel of the CJC, Norman
Sabourin (Executive Director), dated February 6, 2015, and of a certain number
of letters previously issued by CJC, in so far as their contents may enlighten
the Court in its review of the applicant’s motion to set aside the order made on
December 5, 2014. The CJC’s motion to intervene has, in other respects, been dismissed
by the Court.
[14]
Paragraph 399(2)(a) of the Rules provides:
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399. [. . .](2)
On motion, the Court may set aside or vary an order
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399. […] (2) La
Cour peut, sur requête, annuler ou modifier une ordonnance dans l’un ou
l’autre des cas suivants :
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(a) by reason of
a matter that arose or was discovered subsequent to the making of the order;
or
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a) des faits
nouveaux sont survenus ou ont été découverts après que l’ordonnance a été
rendue;
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[15]
Due to the principle of the finality of
judgments, Rule 399 has the character of an exception, and the Court will not
set aside an order lightly (Rostamian v Canada (Minister of Employment and
Immigration), (1991) 27 ACWS (3d) 557, [1991] FCA No. 525 (FCA) at paragraph 5).
In Ayangma v Canada, 2003 FCA 382, at paragraph 3, the Federal
Court of Appeal summarizes as follows the conditions that must be fulfilled for
the Court to be able to allow a motion under paragraph 399(2)(a) of
the Rules:
1- the newly discovered information must be
a “matter” within the meaning of paragraph 399(2)(a);
2- the “matter” must not be one which was
discoverable prior to the making of the order by the exercise of due diligence;
and
3- the “matter” must be something which would
have a determining influence on the decision in question.
[16]
Although the applicant satisfies the first two
conditions, I am not convinced in the case at bar that the “matter” he cites in
his motion to set aside is “something which would have
a determining influence on the decision in question,” since the striking
of his application for judicial review is based on its premature character.
I.
The newly discovered information must be a “matter”
within the meaning of the Rule
[17]
Let us start again from the beginning. To assess
the relevance of the matter alleged by the respondent within the meaning of
paragraph 399(2)(a) of the Rules, the matter must be framed within a
chronology taking into account that two motions for judicial review were filed
by the applicant regarding the CJC’s inquiry. Unless indicated to the contrary,
references to the exhibits refer to the proceedings in this case (T‑646-14).
[18]
On September 30, 2010, the applicant was
appointed to the Superior Court of Québec. In May 2012, he was the subject of an
allegation by an informer who stated, as part of a criminal investigation, that
he allegedly sold cocaine to the applicant, a lawyer at the time, until late 1989
or 1991. Moreover, this was not the only allegation concerning the actions of
the applicant while he was a lawyer. On October 30, 2012, the Director of Criminal
and Penal Prosecutions of the Province of Quebec sent this information to the
Chief Justice of the Superior Court of Québec, the Honourable François Rolland
(Exhibit D-3). The applicant—who has always denied the truth of the allegations
in question—was relieved of his judicial duties in the interim. Bâtonnier Gérald
R. Tremblay and Bâtonnier Louis Masson, have represented the applicant from the
outset in the proceedings before the CJC and the Federal Court.
[19]
On November 30, 2012, Justice Rolland approached
the CJC to have it review the applicant’s conduct, and sent the CJC a copy of
the relevant documents (Exhibit D-3) (the complaint). Indeed, the Executive
Director treated this letter as a complaint and decided to open a file. Where a
complaint is manifestly irrational or amounts to an obvious abuse of the
complaint filing procedure, the Executive Director may close the file: section 2.2
of the Procedures; Canada (Attorney General) v Cosgrove, 2007 FCA 103,
at paragraph 70 (Cosgrove). This is not the case in the matter before
us.
[20]
We come to the second level. The Vice-Chairperson
of the Judicial Conduct Committee of the CJC, the late Honourable Edmond
Blanchard, Chief Justice of the Court Martial Appeal Court and Justice of the
Federal Court (Vice-Chairperson), examined the complaint and reviewed the
documents in the record, which included the applicant’s version (letter of
January 11, 2013). On February 7, 2013, as allowed by section 7.1 and
paragraph 5.1(c) of the Procedures, the Vice-Chairperson asked Raymond
Doray, of the law firm Lavery (the outside counsel), to make [Translation] “ further inquiries” (Exhibit
D-4). The names of the persons met and the contents of the information gathered
on that occasion are confidential. Suffice it to mention the following.
[21]
Between February 27 and May 6, 2013, the outside
counsel had various meetings or telephone conversations with judges, a
representative of criminal and penal prosecutions, and investigators of the Sûreté
du Québec. On May 6, 2013, the first version of the outside counsel’s [Translation] “summary report” (volume 1)
was communicated to the applicant. On July 9 and 10, 2013, the outside counsel
had other telephone conversations with judges, former partners or professionals
who knew the applicant (volume 2). Finally, on August 13, 2013, the outside
counsel met with the applicant in the company of the applicant’s counsel
(volume 3). Then, on or about August 13, 2013, the outside counsel finalized
his summary report (Exhibit D-5). On August 14, 2013, through his counsel,
the applicant sent the outside counsel written submissions.
[22]
Subsequently, as the Executive Director of the
CJC notes in his affidavit of February 6, 2015, the outside counsel produced a [Translation] “confidential legal report”
to the attention of the Vice-Chairperson of the CJC. The applicant says he
discovered the existence of this second [Translation]
“confidential report” after the order of December 5, 2014, was issued. I am
satisfied in the case at bar that this is a “matter.” No such report appears in
the certified record of the tribunal. It remains to be determined whether this
second report could have reasonably been discovered by the applicant before
December 5, 2014, and whether it represents a determining factor.
[23]
On October 22, 2013, the Vice-Chairperson decided
to constitute a Review Panel composed of the Honourable Justices Ernest
Drapeau, Glen Joyal and Arthur J. LeBlanc. The matter now moved to the third
level. Through a letter addressed to them and signed by the Executive Director,
the Vice-Chairperson informed the members of the Review Panel that he had many questions
about the applicant’s credibility, and recommended the inquiry be pursued (Exhibit
D-6). The same day, under separate cover, the Executive Director of the CJC
sent the applicant a copy of the letter of the Vice-Chairperson and of the
documents pertaining to the matter.
[24]
On February 6, 2014, the Review Panel decided to
constitute an Inquiry Committee under subsection 63(3) of the Act, thinking the
case sufficiently serious to justify the applicant`s disqualification as judge.
The reasons of the Review Panel are contained in the confidential report dated
the same day (Exhibit D-7).
[25]
On February 11, 2014, the Executive Director
informed the applicant of the Review Panel’s unanimous decision. In the letter
made public at the hearing of February 24, 2015 (Exhibit ANS-2), the
Executive Director specifically states:
. . .
[Translation]
In accordance with article 9.9 of the Complaint
Procedures of the CJC (the “Procedures”), I am giving you a copy of a report
that sets out the reasons for the Review Panel’s decision in this regard. A
copy has also been sent to your counsel. I would ask you to note that this
report is confidential, and as is mentioned in the report, some of the appended
exhibits might be the subject of a possible publication ban by the Inquiry
Committee.
Under the provisions of the By-laws, the
Minister of Justice will be asked to designate one or more lawyers to sit on
the Inquiry Committee. Chief Justice Blanchard will proceed, under subsection 2(1)
of the By-laws, to appoint members of the Council to sit on the Inquiry
Committee. He will also proceed to appoint an independent counsel who will be responsible
for presenting the case to the Inquiry Committee. I will notify you of the composition
of the Inquiry Committee as soon as it is finalized.
Furthermore, I ask you to note that the
Council [intends to] issue a press release shortly concerning the makeup of the
Inquiry Committee.
. . .
[26]
The inquiry that then began before the Inquiry
Committee constitutes the fourth level. After that, the CJC reviews the
complaint and is called upon to rule on its merits (fifth level). The CJC then
presents to the Minister of Justice a report on its conclusions and recommendations,
which could ultimately lead to the disqualification of the judge (sixth level).
[27]
On February 12, 2014, in accordance with
subsection 1.1(4) of the By-laws, the Executive Director approached the
Minister of Justice to have him appoint one or more counsel to the Inquiry
Committee (Exhibit ANS-3).
[28]
On March 13, 2014, the applicant filed a notice of
application for judicial review of the Review Panel’s decision (the first
notice of application). The applicant thereby sought to have the impugned decision
struck and to have the By-laws and Procedures declared inapplicable, in whole
or in part (see Girouard 1, above, at paragraph 11).
[29]
Asked by letter dated April 9, 2014 (Exhibit
ANS-3) to appoint one or more counsel to sit on the Inquiry Committee, the
Minister of Justice appointed Ronald LeBlanc, Q.C.
[30]
On April 10, 2014, in response to the request made
by the applicant in his first notice of application, the Registrar of judicial
conduct at the CJC filed with the Court, under Rule 318, in a sealed envelope, a
certified copy of the confidential record that was before the Review Panel (record
of the tribunal). The confidentiality of these documents has been maintained by
the Court, which has issued various confidentiality orders that have not been
revoked to date, although a large part of the correspondence exchanged since
the decision of the Review Panel has by now become public (e.g. Exhibits ANS-1 to
ANS-4 appended to the affidavit of the Executive Director and Exhibit CCM-1 filed
at the hearing of February 24, 2015).
[31]
On April 16, 2014, the respondent served and
filed a notice of motion seeking to strike the first notice of application for
judicial review (the first motion to strike).This notice was returnable at the
general session to be held in Quebec City on May 15, 2014. The motion was
not heard on this latter date, but was postponed to be heard at a special
session, since the planned hearing was for more than two hours.
[32]
That spring, our colleague Justice Blanchard was
absent from the Court. We were ultimately to learn that this would be his last
spring. In the last weeks, he remained bedridden in hospital. In his affidavit,
the Executive Director explains that he was nonetheless in telephone communication
with Justice Blanchard:
[Translation]
Following [the letter of April 9, 2014 of
the Minister of Justice], Chief Justice Blanchard informed me by telephone of
his decision to appoint, as members of the Inquiry Committee, the Honourable Richard
Chartier, Chief Justice of Manitoba (chairperson) and the Honourable Paul
Crampton, Chief Justice of the Federal Court, in accordance with section 2 of
the By-laws. He asked me to take the usual administrative steps to give
effect to his decision.
In April 2014, Chief Justice Blanchard
informed me by telephone of his intention to appoint Marie Cossette as
independent counsel, in accordance with section 3 of the By-laws.
On April 29, 2014, I had discussions with Gérald
R. Tremblay, one of Justice Girouard’s counsel, and I informed him of the
intention of Chief Justice Blanchard to appoint Marie Cossette as independent
counsel.
Given the fact that Ms. Cossette, though
practising in Quebec City, was part of the same law firm Lavery as Raymond
Doray, who practices in Montréal, my discussions with Mr. Tremblay were
intended to assure me, on behalf of Chief Justice Blanchard, that this
situation would not cause any difficulty, and the undersigned thus asked Mr. Tremblay
to indicate whether he saw any difficulties in Ms. Cossette being
appointed.
On May 5, 2014, I followed up with Mr.
Tremblay about the appointment of Ms. Cossette. Shortly thereafter, he informed
me that he did not have any concerns, in so far as a “firewall” was in place
between Mr. Doray and Ms. Cossette.
I advised Chief Justice Blanchard, who
confirmed to me his decision to appoint Mr. Cossette, and asked me to take the
usual administrative steps to give effect to his decision.
I immediately advised Ms. Cossette of her
appointment and asked her to contact Mr. Tremblay to discuss the question of a [Translation] “firewall.”
At no time has the undersigned been involved
in the discussions between the independent counsel and Mr. Tremblay about the
drafting of Exhibit P-3 produced as confidential in T-1557-14.
[33]
On June 18, 2014, the CJC publicly revealed the
names of the members of the Inquiry Committee and the name of the independent
counsel. That said, although no official letter had been sent to the applicant,
the Executive Director had informed Mr. Tremblay of these appointments in May
2014.
[34]
The second “matter” was revealed in the
Executive Director’s February 6, 2015 affidavit. Concurrently with the publication
of the official press release, the Executive Director of the CJC sent the three
members of the Inquiry Committee, on June 18, 2014, a letter (Exhibit ANS-4) in
which he mentions in particular:
[Translation]
Chief Justice Blanchard asked me to provide
you with the report of the Review Panel in this case. I would please ask you to
note the video recording that is included. It is possible that the judge would
seek to exclude this exhibit from the evidence.
[35]
Here is a “matter” of which the Court was
certainly not informed when it handed down its order of December 5, 2014. On
February 9, 2015, at his examination on affidavit, the Executive Director
explained, in this regard:
[Translation]
And because of
the submissions made on behalf of Justice Girouard, I knew that questions could
be raised about the admission or exclusion of the exhibits. And I mentioned it,
Chief Justice Blanchard thought that it was good to mention it, so that if
anyone had difficulties with these—with the nature of the report and the
enclosures, well! he could take the necessary steps to object to them.
[36]
Moreover, not only were the report of the Review
Panel of February 6, 2014, and the video in question sent by the Executive
Director, on June 18, 2014, to the members of the Inquiry Committee on that
occasion, but also [Translation] “its
appendices” (paragraph 48 of the affidavit of February 6, 2015, of the
Executive Director of the CJC and paragraph 60 of the written submissions of
the CJC dated February 6, 2015).
[37]
At the same time, on June 18, 2014, the
Executive Director of the CJC sent [Translation]
“the same information to the independent counsel.” In this latter case,
however, no “matter” is involved since counsel for the applicant and counsel
for the respondent agree that the Review Panel’s decision and the information
in the CJC’s record must be disclosed to the independent counsel so that she
can prepare the advance notice that must be given to the judge under subsection
5(2) of the By-laws. This is indeed what counsel for both parties explained
verbally to the Court on November 20, 2013, at the hearing of the motions to
strike. We shall come back to this question further on, in our analysis of the
third criterion of paragraph 399(2)(a) of the Rules.
[38]
Thereafter freed of his duties as Vice-Chairperson
of the CJC, Chief Justice Blanchard passed away on June 27, 2014. Since then,
questions concerning the management of the applicant’s file come under the
purview of the Chairperson of the CJC, the Honourable Michael MacDonald, Chief
Justice of Nova Scotia.
[39]
On July 9, 2014, the applicant served and filed
a notice of application for judicial review, in T-1557-14, of [Translation] “the
decision of June 18, 2014, of the Canadian Judicial Council. . .to reveal the
composition of the Inquiry Committee. . .[and that] indicates that its mandate
is to [Translation] ‘review the
matter as a whole’” (the second notice of application).
[40]
According to the entries recorded inT-646-14 and
T-1557-14, the following instruction of Chief Justice Crampton dated March 13,
2014, was communicated and transmitted by fax to the parties’ counsel on July 16,
2014:
[Translation]
Given my duties as member of the Inquiry
Committee of the Canadian Judicial Council that will examine the conduct of the
Honourable Michel Girouard, I am assigning to Justice Simon Noël all the tasks
of the administration (including summons) of the file or files involving
Justice Girouard and the inquiry regarding him, in accordance with section 6(2)(a)
of the Federal Courts Act.
[41]
On July 31, 2014, the Registrar of judicial
conduct at the CJC filed with the Court, under Rule 318, a certified copy of
the [Translation] “documents in
possession of the Council,” with the following caveat:
[Translation]
The application for judicial review is not
precise as far as the impugned “decision” is concerned. In the Council’s
opinion, no decision was made on June 18, 2014. In so far as the application for
judicial review is valid and deals with the decision of the Vice-Chairperson of
the Council to appoint the members of the Inquiry Committee and an independent
counsel within the meaning of subsection 1.1(2) of the Canadian Judicial
Council Inquiries and Investigations By-laws, I am delivering to you,
in accordance with section 318, the documents pertaining to this decision.
[42]
In fact, the certified record in T-1557-14 includes
the letter dated February 12, 2014, sent by the Executive Director to the
Minister of Justice, the letter dated April 9, 2014 sent by the Minister of
Justice to the Executive Director (Exhibit ANS-3), the press release of June 18,
2014, and the letter of June 27, 2014, sent by the Executive Director to
counsel for the applicant, which states [Translation]:
“[t]he decisions that are referred to in the Council’s
press release have been rendered in accordance with the provisions of the Canadian
Judicial Council Inquiries and Investigations By-laws.”
[43]
On August 12, 2014, the respondent served and
filed a motion to strike the second notice of application, alleging that no [Translation] “decision” had yet been
made by the Inquiry Committee and that the applicant could not challenge the
legality of the press release of June 18, 2014 (the second motion to
strike).
[44]
On the instructions of Justice Noël, the two motions
to strike were heard by the Court on November 20, 2014. As mentioned above,
they were allowed on December 5, 2014. No appeal has been lodged in this case
or in T-1557-14. The two orders are thus final.
[45]
We now arrive at the incident that triggered this
motion to set aside. On December 11, 2014, Doug Mitchell (counsel for the
Inquiry Committee) sent to the independent counsel and to counsel for the applicant
a letter that reads as follow:
[Translation]
I am writing to you on behalf of the Inquiry
Committee after receiving and reading the decision of Justice Martineau dated
December 5, 2014.
At paragraph 45 of his decision, Justice Martineau
states:
“It is furthermore impossible at this stage to foresee
the course of events. Could it be that allegations previously considered by the
Review Panel will not be subject to the inquiry or will be withdrawn? I simply do
not know. 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.”
The Committee would like to point out to you
that what Justice Martineau said in paragraph 45 is not accurate, since on
June 18, 2014, the Vice-Chairperson of the Judicial Conduct Committee of the
Canadian Judicial Council sent to each member of the Inquiry Committee the
report of the Review Panel in this matter, together with the supporting
evidence.
Furthermore, the Committee would like to
inform you that one member of the Committee has examined the decision of the
Review Panel, but not the supporting evidence, that one member has examined all
the documentation submitted by the Canadian Judicial Council, and that no
member has examined the elements of the documentation.
The Committee wishes to advise you that the
Inquiry Committee is planning to rely solely on the evidence that it deems
admissible at the hearing to settle all the issues required to perform its
duties. Moreover, as you know, judges are, by the nature of their duties, able
to ignore evidence that they have heard in certain contexts, for example in a
voir dire, or that they will declare inadmissible, either during the hearing or
in the final judgment.
Sincerely, [Emphasis added.]
[46]
The contents of the letter of December 11, 2014,
of counsel for the Inquiry Committee constitutes a “matter.” I am satisfied
that up to the date of this last communication, the applicant did not have
knowledge of the fact that [Translation]
“. . .on June 18, 2014, the Vice-Chairperson of the
judicial conduct committee of the Canadian Judicial Council sent to each member
of the Inquiry Committee the Review Panel’s report in this matter, together
with the supporting evidence.” Nor could the applicant have known, as
counsel for the Inquiry Committee points out, “. . .that
one member of the Committee examined the decision of the Review Panel,
but not the supporting evidence, that one member examined all the
documentation submitted by the Canadian Judicial Council, and that no member
examined the elements of the documentation.”
[47]
Finally, I am also satisfied that the facts related
at paragraphs 28 and 46 of the affidavit of February 6, 2015, of the Executive
Director of the CJC are a “matter,” namely: (1) after the applicant sent to the
outside counsel on August 14, 2013, through his counsel, written submissions
concerning the summary report, the outside counsel [Translation] “produced a confidential
legal report to the attention of Chief Justice Blanchard" (confidential
report); (2) [Translation] “[t]he confidential report of the outside counsel in this case
was not shared with the Review Panel, the Inquiry Committee, the independent
counsel or anyone other than Chief Justice Blanchard;” and (3) [Translation]
“[o]nly the summary document was shared.” It is
only recently that the applicant has come to know all this “matter.”
II.
The “matter” must not be one which was
discoverable prior to the making of the order by the exercise of due diligence.
[48]
All the “matter” alleged by the applicant
concerns information that was under the exclusive control of the CJC, so that
the applicant was not in a position where it would have been possible for him
to discover it before the order of December 5, 2014.
[49]
On the one hand, the Executive Director, in his
examination on affidavit, which took place on February 9, 2015, acknowledged
that the “confidential report” of the outside counsel used by the Vice-Chairperson
of the CJC [Translation] “was not revealed [to the applicant]” and that [Translation] “the
very existence of the legal opinion was not revealed.” On the other
hand, on November 20, 2014, when the respondent’s two motions to strike were
argued, nothing led the applicant to think that the Executive Director of the
CJC and/or the late Edmond Blanchard could have taken the initiative, on June
18, 2014, to communicate any information whatsoever to the members of the
Inquiry Committee.
[50]
I am therefore satisfied that the “matter”
referred to by counsel for the Inquiry Committee in his letter of December 11, 2014,
could not have been discovered by the applicant, prior to the order of
December 5, 2014, by the exercise of due diligence. The applicant
satisfies the second jurisprudential condition.
III.
The “matter” must be something which would have
a determining influence on the decision in question.
[51]
On February 24, 2015, counsel for the applicant
resumed before me a line of argument that is not really new. As evidence of
this, I note that in the notice of application for judicial review that had
been filed with the Court on July 9, 2014, under the heading [Translation] “jurisdictional contradiction,”
the applicant alleges, at paragraphs 18 to 21:
[Translation]
After establishing that the Inquiry
Committee shall determine the scope of its inquiry, the decision of June 18,
2014, indicates that its mandate is “to review the matter as a whole;”
The applicant submits that there is nothing,
at this stage, that can be “reviewed;”
Indeed, the Inquiry Committee must commence
its inquiry, as the case may be, without having read any facts other than those
that will eventually be brought to its attention;
This tight separation is indeed crystallized
by the existence of prevention measures designed to ensure that the independent
counsel, to assist the Inquiry Committee, does not read any facts on the record
other than those that are legally led in evidence, as the case may be. These
preventive measures appear in Exhibit P-3, which will be produced before the Tribunal
after a request has been submitted to seal, keep confidential, not disclose and
not publish this document. It is thus contrary to the legislative and
regulatory provisions that the Inquiry Committee be called upon “to review the
matter as a whole” while there is no jurisdictional framework, no evidence and,
for the moment, nothing that can be “reviewed.”
[52]
According to the applicant, the “matter”
disclosed by counsel for the Inquiry Committee and the Executive Director of
the CJC shows that the principle of separation that frames each step in the complaints
process at the CJC has not been observed. Section 9.10 of the Procedures
clearly provides that once the report has been written, the members of the
Review Panel are functus officio, precisely to avoid having the
knowledge acquired during the review pollute the inquiry. No rule provides that
the report of the Review Panel must be transmitted to the Inquiry Committee, and
in so doing, the CJC has irremediably influenced the course of the inquiry. Now,
the Inquiry Committee received documents and information coming from the Review
Panel even before the independent counsel prepared, and sent to the applicant,
the advance notice required under the By-laws. Indeed, at the time of the
hearing of the present motion to set aside, the allegations concerning which
the Inquiry Committee will conduct an inquiry had yet to be specified by the
independent counsel in a [Translation]
“detailed final notice of allegations” that she intended to send to the applicant
on March 13, 2015. The applicant alleges that this creates a situation of
irremediable lack of procedural fairness.
[53]
Furthermore, several documents and a video,
whose admissibility has not been the subject of any debate about filing them as
evidence, have already been reviewed by the members of the Inquiry Committee. Eight
months have elapsed since June 18, 2014. According to the applicant, this
clearly indicates that the inquiry began in his absence, which infringes his
fundamental right to a full answer and defence.
[54]
At the hearing, counsel for the applicant, in
support of the motion for an immediate stay of the proceedings, alleged the
apparent bias of the current members of the Inquiry Committee in regard to some
of the questions at issue. The applicant refers to the letter of December 11, 2014,
which was sent to them in the name of the Inquiry Committee. If we are to
believe counsel for the Inquiry Committee: [Translation]
“judges are, by the nature of their duties, able to
ignore evidence that they have heard in certain contexts, for example in a voir
dire, or that they will declare inadmissible, either during the hearing or in
the final judgment.” Counsel for the applicant concede that this is
perhaps true, but not before the debate has taken place in proper form before
the tribunal! There is the rub precisely, since the declaration of December 11,
2014, seems to indicate that the members of the Inquiry Committee already considered
the issue of appearances of bias, in the absence of the applicant, and decided
in advance that they would not recuse themselves. This constitutes a clear
violation of procedural fairness. Furthermore, according to the letter dated
December 11, 2014, it is impossible to know which specific elements of the documentation
or of the Review Panel’s report have been considered by the Inquiry Committee
since then.
[55]
The applicant claims that in light of this
“matter,” the Court has no other option than to set aside the order of December
5, 2014, and to order an immediate stay of proceedings before the Inquiry
Committee, or else order that these proceedings be continued before the Federal
Court, and to allow the applicant to amend his notice of application for judicial
review to allege these new defects.
[56]
The respondent is not really challenging the
fact that there may have been some small infringements of the principle of separation—the
facts speak for themselves—but that does not affect the validity of the Court’s
conclusion that the application for judicial review is premature. After all,
the Inquiry Committee has full authority to rule on any question of law or
jurisdiction. In the case at bar, the alleged new breaches of procedural
fairness do not constitute an [Translation]
“exceptional circumstance” allowing early recourse to the courts. Furthermore,
the independent counsel and the Inquiry Committee are not bound by the Review
Panel’s report. The Inquiry Committee is master of the proceedings, and may
thus remedy any previous breach of a principle of procedural fairness. It is
incumbent upon the applicant to raise before the Inquiry Committee the defects
that he is alleging today. It will be up to him to submit, before the Inquiry
Committee, a motion to stay proceedings or a motion for disqualification, and
he will always be able to challenge the admissibility in evidence of any
document and the probative value of the video in question. Finally, the
prejudice that the applicant alleges is speculative, such that the applicant’s application
for judicial review remains, in every respect, premature.
[57]
On November 20, 2014, at the hearing of the motions
to strike, the Court attempted to define the question of the scope of the
inquiry and of the role that the independent counsel plays before the Inquiry
Committee. The applicant did not make any admission in this matter, nor had the
formal notice of allegations been communicated to him. As for the allegations
in the complaint, which are denied, the applicant claims that they do not
reveal any disciplinary cause of action under section 65 of the Act. It must be
understood that if the competence of the Inquiry Committee is derived
exclusively from the report of the Review Panel and nothing can be changed
thereafter, that will indeed have a direct impact on the burden of proof. The
following exchange is particularly revealing:
[Translation]
Gérald Tremblay
for the Honourable Michel Girouard: And, in any case, and there, it’s. . .it’s
artistic vagueness, there. But one thing is certain, and that is: the
independence of this lawyer or that lawyer must be total and the problem with
the first case, “Lori Douglas,” is that the counsel who assists the
Council, thus who. . .he is. . .he is almost on the bench, he is just a little
bit away from it, has descended into the arena to ask questions that the
committee would have wanted Mr. Pratte to ask. So it’s interference in the work
of. . .of. . . the independent committee, etcetera, etcetera, and that is what
caused the process to be derailed at that point.
The Court: But
as for me, my question was simpler. . .
Mr. Tremblay: Yes.
The Court:. . .and
more technical, it was a very technical question. When the advance notice is
prepared, the independent counsel, there, you told me, Mr. Joyal, that there
were three allegations that were made by the Review Panel, that’s why the
process was allowed to settle—the process was. . .was. . . triggered to a new
step, which is the fourth step.
Claude Joyal for
the Attorney General of Canada: That’s it.
The Court: The
advance notice, then, is it on the basis of the three (3) allegations that were
made or is that going to be. . .
Mr. Joyal: That
starts. . .
The Court: . .
.either one of the three , or two , or the three or could it be a fourth or a
fifth?
Mr. Tremblay: Yes,
that, . . .that cannot. . .that cannot go much. . .much further than that, but
that starts there and she makes—it makes its. . .its own assessment and then
says “Here is my notice of allegation” and that can. . .that. . .can be
the starting point, it’s what the. . .it’s what the. . .the. . .the. . .the
Review Panel has. . . has given, there, but there, that starts over again as a.
. .I don’t want to make an analogy with the Crown counsel too much, too much,
there, but it’s her assessment from there, then she—“Here is what I myself make
of it.”
The Court: O.K.
Mr. Tremblay: And
then, the other. . .the other. . .can bring a motion to. . .to say “Well, I
don’t agree. . .”
The Court: Yes.
Mr. Tremblay: “.
. .there is one too many, there are two too many, etcetera.”
The Court: That
answers my question.
Mr. Tremblay: Thank
you.
The Court: I
interrupted you, Mr. Joyal, I apologize.
. . .
The Court: . .
.thus, one—the—the independent counsel would have, to answer my question, there
were three allegations that were made by the Review Panel that justify, if I may
say so, the. . .the administrative decision, you say, of the Review Panel to go
to the fourth step and appoint a committee. . .
Mr. Joyal: That’s
it.
The Court:. . .of
inquiry.
Mr. Joyal: Yes.
The Court: But
before the inquiry. . .
Mr. Tremblay: Starts.
The Court: . .
.formally starts, under section 63 of the Act, what you read to me. . .
Mr. Joyal: Yes.
The Court: . .
.must have reasonable advance notice, the By-laws explain to us that it is the
counsel, ultimately, who is going to prepare it, it will not be the Inquiry
Committee, it is going to be the independent counsel and the inquiry counsel,
after making his own inquiry, could restrict or expand the scope of. . .of the
allegations, in other words, he could accept only one allegation against the
judge, just as he could decide to add to it. . .
Mr. Joyal: Yes.
The Court: . .
.depending on his independent assessment. At that time, that is going to be
formalized in an. . .in an advance notice that is going to be addressed to the
judge.
Mr. Joyal: Yes,
I am going to. . .and I am going to continue, two small comments. When one
refers to section 63(1), one is referring to the situation where the Council
proceeds with an inquiry at the request. . .
. . .
Mr. Joyal: Yes.
That, it’s. . .it’s. . . it’s the. . .it’s the case where the Council proceeds
with an inquiry at the request of an attorney general. Another thing, it’s. . .it’s
an aside, Mr. Tremblay will correct me, he who has experience in the
professional ethics of the judiciary, there is also the situation where the
independent counsel could decide that there is no matter.
Mr. Tremblay: Yes.
Mr. Joyal: And
that, that’s the rule that is called “the Boilard rule.” . . .
. . .
Mr. Tremblay: Just
anecdotally speaking, my colleague, I do not want to interrupt you, but since we
are on the subject, of “Boilard,” what is interesting from an anecdotal perspective
is that Mr.. . .our late colleague Mr. Langlois was the independent counsel. I
am arguing that even if it is mandatory to hold the inquiry because of 63, once
one is before the Committee, if “it discloses no offence known to law,” the
Committee should stop there right away because all there was in the allegation
is the. . .he recused himself from. . . from. . .the Hell’s Angels trial, eh. There
is no—nothing around it, he did not say there was cash that had changed hands,
influence, and so, the Committee did the same thing, then they. . .they. . .they
filed a complaint and the Judicial Council, “in banco,” in. . .in. . .the whole
mob—the whole group, excuse me, we have to be—we are in a—the whole group at
the Château Laurier had to take a ballroom, they heard the case again and they
set aside the complaint that had been made by, it was Justice Richard, Justice Robert
and the. . .Michael Cain of Chicoutimi, they set it aside, and then they said: “They
should have stopped at the outset.” So that means that the process was starting,
but the independent counsel had said “You should stop,” but he is not. . .he is
bound, they are not—and then the—and then, they said: “Under section 63, we are
obliged to proceed” and the. . .the entire Council decided that they should
have stopped because the text of the complaint did not reveal any infringement
of professional ethics.
The Court: So
then, the answer is: that stops or that does not stop.
Mr. Tremblay: That
stops there.
The Court: That
stops.
Mr. Joyal: That
stops. And there is a decision, and I will perhaps find it for you in the
course of the morning, that mentions that this rule, the Boilard rule, is
part…participates in the maintenance of judicial independence, in other words,
that a complaint that is unfounded must not go…must not go any further.
Mr. Tremblay: Yes.
Mr. Joyal: And
all this with. . .with a view to preserving judicial independence. I will find
for you the. . .decision, if there is an adjournment. I am continuing with my
presentation, Your Honour. . .
. . .
[58]
Indeed, after verification, in the CJC’s report
dated December 19, 2003, and sent to the Minister of Justice in the Boilard
case, the 26 justices who signed it agreed on the following points:
[Translation]
. . .
On February 3, 2003, Mr. Langlois recommended
to the committee that it split the inquiry into two phases. He thought that
this measure would allow the committee, as a first step, to rule “in a
preliminary manner” on the motion for an inquiry based on the documents that
were indisputable and undisputed. This recommendation was rejected. At the
conclusion of the hearings, Mr. Langlois said that in his opinion, the inquiry
should have been terminated without drawing any conclusions about Justice
Boilard. He thought that Justice Boilard’s decision concerned the capacity of a
judge to preside over a trial in complete independence and impartiality, and
thereby arose from “the pure exercise of the judge’s judicial discretion.” He
added that the Attorney General, in his motion, did not allege that the judge’s
decision was based on illegitimate, inappropriate or non-judicial grounds.
The Council generally subscribes to the
approach adopted by the independent counsel and to the opinions he expressed.
. . .
In short, the Canadian Judicial Council concluded
that the inquiry committee should have taken the advice of the independent
counsel to first review the questions at issue, which would have then led it,
given the disclosed facts, to refuse to further review the motion of the
Attorney General. There is, then, nothing that would allow a conclusion that
Justice Boilard’s decision to recuse himself constituted a failure to perform
the duties of his office.
The Council, like the Inquiry Committee, is
of the opinion that there is no reason to recommend the revocation of Justice Boilard.
Moreover, the Council is of the opinion that nothing allows one to conclude
that the conduct of Justice Boilard was inappropriate within the meaning of
section 65(2)(b), (c) or (d) of the Judges Act.
. . .
[59]
In Cosgrove, above, at paragraph 52, the
Federal Court of Appeal makes reference to the Boilard rule:
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. [Emphasis added.]
[60]
Although the inquiry in the Boilard case
was conducted in response to a request made by the Attorney General of the
Province of Quebec under subsection 63(1) of the Act, the parties agree that
the Boilard rule may also apply to an inquiry conducted following an
ordinary complaint regarding which an inquiry is held under subsection 63(2) of
the Act. In both cases, the Council must be satisfied that there is a ground
for intervention under paragraphs 65(2)(a) to (d) of the Act.
[61]
On November 20, 2014, everything seemed clear: the
Inquiry Committee had not started its work and had not yet sat. There was no
conflict in view between the Inquiry Committee and the independent counsel. There
was not even an official advance notice (although preliminary versions of the
upcoming advance notice might have been the subject of discussions between the
independent counsel and counsel for the applicant). It was, however, only after
the orders to strike had been handed down by the Court on December 5, 2014, that
the applicant and the independent counsel were informed that there had been
prior communication of the Review Panel’s report, of the summary report, of the
documents and of the video in question. In retrospect, the initiative taken in
June 2014 to transmit the entire file to the Inquiry Committee would perhaps
not be unrelated to the Ruling of the Inquiry Committee
concerning the Hon. Lori Douglas with respect to certain Preliminary Issues
(May 15, 2012) (affidavit of February 6, 2015, of the Executive Director, paragraph
50; examination of the Executive Director of February 9, 2015, pages 59-62). This
latter interlocutory decision was rendered on May 15, 2012, by the first
Inquiry Committee in Douglas, which resigned in its entirety on November
23, 2013. It is not included by counsel in the mass of various authorities that
the parties on both sides submitted at the hearing of November 20, 2014. There
is no doubt a very simple reason for this omission: it is a decision that may
give rise to controversy. Its legality has not been examined by the courts of
justice. To the Court’s knowledge, this decision does not appear to have been
followed so far by other inquiry committees of the CJC.
[62]
Without ruling on this point, I note that it
emerges from the oral submissions made by the solicitors of record that the
first Inquiry Committee in Douglas considered—perhaps precipitously if
one considers the case law that has developed around the “Boilard rule”—(1) that
the formal inquiry before the Inquiry Committee is only the continuation of the
broader inquiry commenced earlier; (2) that the competence of the Inquiry
Committee flows exclusively from the Review Panel’s decision; and (3) that the
independent counsel is required to conduct the inquiry in the manner that the
Inquiry Committee intends. Even so, I do not believe that it is appropriate to
set aside my order of December 5, 2014, and to start over again with the
exercise of hearing, for a second time, the submissions of counsel on the
merits of the application for judicial review. What I wrote in my previous
decision is still valid, and enables me to dispose today of the motion to set
aside: the additional defects resulting from the “matter” may be considered by
the Inquiry Committee (see, for example, the Ruling
of the Inquiry Committee concerning the Hon. Lori Douglas with respect to the
motion to disqualify all members of the Inquiry Committee on the basis of
alleged reasonable apprehension of bias (August 20, 2012); Inquiry Committee concerning the Hon. Lori Douglas, Reasons For Resignation of the Inquiry Committee
(November 20, 2013, at paragraphs 3 and 15). The applicant’s application for
judicial review in the present case is premature in all respects.
[63]
On December 5, 2014, the Court ruled that the
Inquiry Committee has full authority to rule on any question of law or
jurisdiction raised by the applicant in his notice of application, including
the validity of the By-laws and Procedures (paragraphs 27-28, 33-35). In Girouard
1, above, the Court clearly indicates the direction to be taken:
[26] Having
considered the Act as a whole and the factors referred to in Martin [2003 SCC 54], 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. [Emphasis added.]
[64]
Moreover, emphasizing that in the present matter—contrary
to that of the inquiry concerning the Honourable Lori Douglas—there was no
allegation of bias concerning the members of the Inquiry Committee or
infringement of the independence of the independent counsel, the Court
dismissed, in Girouard 1, above, the applicant’s general allegation that
a previous infringement of procedural fairness, if there was one, could have
tainted the entire inquiry process, since this is a de novo process that
contains important procedural safeguards. That sufficed to not examine the applicant’s
allegation to the effect that the Vice-Chairperson of the CJC had [Translation] “interfered” with the
decision-making process of the Review Panel (the applicant maintains that the
letter of October 22, 2013, amounts to a veritable [Translation] “charge” and that such interference is
authorized neither by the Act nor by section 8.1 of the Procedures). The applicant
also raises as a “matter,” in his motion to set aside, that a “confidential
report” written in 2014 by the outside counsel was not transmitted to him and
was not included in the certified record of the tribunal. According to what the
Executive Director said when he was examined on this topic on February 9, 2015,
by counsel for the applicant, the report was a “legal opinion” subject to solicitor-client
privilege, but the applicant alleges that once the inquiry process had begun, the
confidential report in question had to be communicated to him, like any other
document pertaining to the complaint, in order for the Court to decide whether or
not the confidential report should be included in the record. I shall not rule
today on this very contentious issue. The applicant is free to raise the issue
of the second “confidential report” of the outside counsel with the Inquiry
Committee before seeking a judicial remedy before the Court. If he does not
obtain a timely answer, the applicant will always be able to contest the
legality of the whole inquiry process at a later date, in addition to challenging,
where applicable, all the interlocutory decisions that will have been made by
the Inquiry Committee. This is, therefore, only a postponement.
[65]
Furthermore, paragraph 45 of Girouard 1, above,
which is cited by counsel for the Inquiry Committee in his letter of December
11, 2014, must be placed in its true context:
[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 “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
. . .
[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. [Emphasis added.]
[66]
Moreover, the comments of paragraph 45 of Girouard,
above, must be linked to the submissions made in Girouard 2, at
paragraphs 15 and 16:
[15] When the Inquiry Committee is
comprised of three members, it may include a member of the legal profession
appointed by the Minister of Justice. The other two members are members of the
CJC appointed by the Chairperson (or the Vice Chairman) of the Judicial Conduct
Committee. On June 18, 2014, the CJC published a press release revealing the
names of the three members of the Inquiry Committee and that of the CJC’s
independent counsel. Whatever the author of the press release may have
written in regard to any legal aspect of the matter is clearly not binding on
the Inquiry Committee. In fact, we now know that no decision has been made by
the Inquiry Committee.
[16] Before
me at the hearing, one of the applicant’s learned counsel, Bâtonnier Louis
Masson, indicated that it was ex abundanti cautela – that is to say, out of an
abundance of caution – that the applicant filed this application for judicial
review. In this case, the Court has decided today that the arguments raised by
the applicant in file T-646-14 against the legality or merits of the decision
of the Review Committee to set up an Inquiry Committee are premature and the
Inquiry Committee should be permitted to dispose of the matter, preferably in a
preliminary manner: 2014 CF 1175. The present application for judicial review
is therefore unnecessary and premature. [Emphasis added.]
[67]
Unless there is evidence to the contrary, no
decision has yet been made by the Inquiry Committee. The facts alleged in the complaint
have been denied totally by the applicant. However, the outside counsel’s
report and the Review Panel’s report do not prove their contents. In Girouard
1, above, at paragraphs 46 and 47, the Court already disposed of the applicant’s
allegations of continued harm:
[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, which 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.
[68]
Although the outside counsel’s “summary report”
speaks of [Translation] “testimonies”
and [Translation] “elements of
evidence,” these are not evidence but rather [Translation]
“elements of information” collected during the previous process of reviewing
the complaint. The appropriate witnesses that may be called to testify before
the Inquiry Committee have not been examined under oath by the applicant and
the independent counsel. It thus seems to me that the phrase [Translation] “supporting evidence,” used
by counsel for the Inquiry Committee in his letter of December 11, 2014, is
unfortunate. It is not the role of the Executive Director, of the chairperson (Vice-Chairperson)
of the CJC or of the Review Panel to [Translation]
“judge” the applicant. Questions of credibility and
evidence come within the purview of the Inquiry Committee. The Review Panel
indeed clearly understood this when it explained, in its report of February 6, 2014
(this part is not confidential in nature) [Translation]:
“A Review Panel does not have the mandate to decide questions of evidence. Its mandate
is to gather information and to decide, in light of this information, what is
to be done, in accordance with the provisions of the Act, the By-laws and the
Procedures.” This step is part of a “screening procedure,” as described by the
Federal Court of Appeal in Cosgrove, above.
[69]
Let me be very clear: the reason for my not intervening
on December 5, 2014, and today, is that the applicant’s are premature. Physically
speaking, the members of the Inquiry Committee were able to review the
documents and see the controversial video, but legally speaking, as I see it, this
material has not yet been admitted into evidence. At this point in the
proceedings, it must be assumed that the elements of information in the CJC’s record
will only become [Translation] “evidence”
when they have been legally produced before the Inquiry Committee. The CJC’s record
as previously constituted does not prove its contents and is not automatically
filed in its entirety at the opening of the public inquiry before the Inquiry
Committee. As for the reports of the outside counsel and the Review Panel—which
are essentially tools for analyzing the information collated during the
inquisitorial and confidential investigation phase—they are not [Translation] “elements of evidence” in
the literal sense of this legal phrase. The fact that all these documents,
including the video in question, were communicated unilaterally by the
Executive Director—presumably acting at the request of the Vice-Chairperson of
the CJC who is now deceased—without the Inquiry Committee requesting this and
without any debate on the matter, suffices to distinguish this case from Douglas.
This is, however, a question that will have to be the subject of a preliminary
debate before the Inquiry Committee.
[70]
A clear distinction also has to be made between
bias and the rule audi alteram partem. The Supreme Court made this clear
in Ellis-Don Ltd v Ontario (Labour Relations Board), [2001] 1 S.C.R. 221, where
the issue of violation of the rules of natural justice was raised when the
appellant learned that the grievance could have been dismissed in an initial draft
decision, and that this draft had been discussed in a full meeting of the
Ontario Labour Relations Board.
[71]
Here is what Justice LeBel wrote on behalf of
the majority, at paragraph 49:
In the case of an alleged violation of the audi
alteram partem rule, even if it can be difficult to obtain evidence to that effect
in certain cases, the applicant for judicial review must establish an actual
breach. There is no authority for the proposition put forward by the appellant
that an “apprehended” breach is sufficient to trigger judicial review. In Consolidated-Bathurst, supra, the
reasons of Gonthier J. clearly distinguished the two problems: bias and audi alteram partem. On the one hand,
Gonthier J. examined whether the process of institutional consultation created
an apprehension of bias. While reviewing the motion of the audi
alteram partem rule, he never indicated that an apprehension of breach was
sufficient to justify intervention. Indeed, he found that the record before the
Court revealed no evidence that any other issues or arguments had been
discussed at the full Board meeting. Therefore, he held that the appellant had
failed to prove a breach of the audi alteram partem rule: see Consolidated-Bathurst, at
pp. 339-40. Thus, one has to look at the nature of the natural
justice problem involved to determine the threshold for judicial review. Consolidated-Bathurst does not stand as authority for
the assertion that the threshold for judicial review in every case of alleged
breach of natural justice is merely an apprehended breach of natural justice.
[72]
Without ruling on the merits of the criticisms
made by the applicant, I must assume, for the time being, that every member of
the Inquiry Committee is impartial (Committee for Justice and Liberty et al v
National Energy Board et al, [1978] 1 S.C.R. 369, at page 394 [Committee
for Justice]; Taylor Ventures Ltd (Trustee of) v Taylor, 2005 BCCA
350, at paragraph 7; Telus Communications Inc v Telecommunications
Workers Union, 2005 FCA 262 , at paragraphs 36-38; Wightman c Widdrington
(Succession de), 2007 QCCA 1687, at paragraph 47). I say this in passing,
not knowing whether the applicant is or is not planning to present a motion for
recusal before the Inquiry Committee. On a different note, in Wewaykum Indian
Band v Canada, [2003] 2 S.C.R. 259, 2003 SCC 45—where the Supreme Court
further clarified the criteria in Committee for Justice, above—the reconsideration
was given to the well-known principle set out in R v Sussex Justices, ex
parte McCarthy [1923] All ER Rep 233, [1924] 1 KB 256, that “public
confidence in our legal system is rooted in the fundamental belief that those
who adjudicate in law must always do so without bias or prejudice and must be
perceived to do so” (at paragraph 57). The Supreme Court also notes that “reasonable
apprehension of bias,” as stated in Committee for Justice, above, has
emerged as a criterion for recusal.
[73]
Finally, even if I am prepared to assume, for
the purposes of the present matter, that the rule of separation does not seem
to have been observed, absent any evidence of concrete harm, I am not prepared,
at this point in the proceedings, to order an immediate stay of proceedings
before the Inquiry Committee. This is not prima facie a case of apprehended
violation of a principle of natural justice where the affected party finds
himself without remedy because a final decision has already been rendered. The
inquiry before that Inquiry Committee has not really begun. Although the
decision of the Review Panel, the report of outside counsel and its appendices,
including the video in question, have been communicated unilaterally to the
Committee, it will be possible to debate their exclusion on a preliminary
basis. Clearly, the public interest and the balance of convenience favour the
continuation of the inquiry, all without prejudice to the applicant’s right to
submit any motion for a stay of proceedings before the Inquiry Committee.
[74]
For these reasons, the motion to set aside is
dismissed. No costs are awarded.
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