Date: 20070312
Docket: A-562-05
Citation: 2007 FCA 103
CORAM: SEXTON
J.A.
EVANS
J.A.
SHARLOW
J.A.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Appellant
and
THE HONOURABLE MR. JUSTICE PAUL COSGROVE
Respondent
and
THE CANADIAN SUPERIOR COURT JUDGES
ASSOCIATION
THE CRIMINAL LAWYERS' ASSOCIATION
THE CANADIAN COUNCIL OF CRIMINAL DEFENCE
LAWYERS
INDEPENDENT COUNSEL
THE ATTORNEY GENERAL OF ONTARIO
THE ATTORNEY GENERAL OF NEW BRUNSWICK
THE ATTORNEY GENERAL OF NOVA SCOTIA
Interveners
REASONS
FOR JUDGMENT
SHARLOW J.A.
[1]
Part II of
the Judges Act, R.S.C. 1985, c. J-1 (sections 58 to 71), establishes the
Canadian Judicial Council (the Council), consisting
of the Chief Justice of Canada, all Chief Justices and Associate Chief Justices
of the superior courts, and certain senior judges of the superior courts. Among
other things, Part II of the Judges Act empowers the Council to investigate and conduct
inquiries into complaints about the conduct of judges of the superior courts.
[2]
Most
complaints about judicial conduct are submitted under subsection 63(2) of the Judges
Act, and are subject to a screening procedure that, in the vast majority of
cases, results in a decision that no investigation or inquiry is warranted. However,
if the federal Minister of Justice or the Attorney General of a province
requests the Council pursuant to subsection 63(1) of the Judges Act to
commence an inquiry as to whether the judge should be removed from office for one
of the reasons specified in paragraphs 65(2)(a) to (d), the screening procedure
applied to complaints under subsection 63(2) is not engaged.
[3]
The Federal
Court has held that subsection 63(1) of the Judges Act is
unconstitutional in so far as it gives a legal power to provincial Attorneys
General to compel the Council to commence an inquiry into the conduct of a
judge of a superior court without the screening procedure applied to complaints
submitted under subsection 63(2). The reasons for that decision are reported as
Cosgrove v. Canadian Judicial Council, 2005 FC 1454.
[4]
Before
this Court is an appeal of that judgment. For the following reasons, I would
allow the appeal.
[5]
For
convenience, these reasons are organized under the following headings:
Paragraph
1. Preliminary note on
terminology................................................................................................... 6
2. Facts.......................................................................................................................................... 7
3. Standard
of review................................................................................................................... 25
4. Findings
of fact......................................................................................................................... 26
5. Judicial
independence and judicial conduct................................................................................ 29
6. Whether
provincial Attorneys General have any role in reviewing
..... judicial conduct....................................................................................................................... 33
7. Constitutionality
of subsection 63(1) of the Judges Act.............................................................. 37
(a) The objective test........................................................................................................ 38
(b) Applying the objective test........................................................................................... 42
(i) Section 99 of the Constitution
Act, 1867...................................................... 43
(ii) Historical context of Part II of the
Judges Act............................................... 45
(iii) Section 71 of the Judges Act....................................................................... 49
(iv) Procedure for an Attorney General’s
complaint under
........ subsection 63(1)....................................................................................... 50
(v) Screening procedure for ordinary
complaints under subsection 63(2)............. 66
(vi) Discussion................................................................................................... 75
8. Conclusion............................................................................................................................... 85
1. Preliminary note on terminology
[6]
The
decision under appeal deals with the constitutionality of subsection 63(1) of
the Judges Act only in relation to the Attorneys General of the
provinces. The federal Minister of Justice is, ex officio, the Attorney
General of Canada (subsection 2(2) of the federal Department of Justice Act,
R.S.C. 1985, c. J-2). Therefore, where it is necessary in these reasons to
refer collectively to all persons who have the right under subsection 63(1) of
the Judges Act to compel the Council to commence an inquiry into the
conduct of a judge of a superior court, I will use the term “Attorneys
General”. Where is it necessary to differentiate, I will use the term
“Minister” or “Attorney General of Canada” to refer to the federal Minister of
Justice or the Attorney General of Canada, and the term “provincial Attorney
General” to refer to the Attorney General of a province.
2. Facts
[7]
Justice
Cosgrove is a judge of the Superior Court of Justice of Ontario. He was appointed to the Ontario County
Court in 1984. In 1989, he became a Judge of the Ontario Court (General
Division) upon the restructuring of the Ontario courts. The name of that Court has since
been changed to the Superior Court of Justice.
[8]
Justice
Cosgrove has presided in countless cases during his judicial career, including
many civil and criminal matters involving the Attorney General of Ontario.
[9]
From 1997
to 1999, Justice Cosgrove presided in the murder trial of Julia Elliott. The
prosecution of Ms. Elliott was conducted by counsel employed by the Attorney
General of Ontario, in accordance with the normal practice in Ontario. Ms. Elliott was also represented
by counsel.
[10]
Over the
course of the trial, Ms. Elliott’s counsel moved three times for a stay of
proceedings. The first two motions were denied. The third was granted on
September 7, 1999 on the basis of the conclusion of Justice Cosgrove that there
had been over 150 violations of Ms. Elliott’s rights under the Canadian
Charter of Rights and Freedoms. The Crown in right of Ontario was also ordered to pay Ms.
Elliott’s legal costs from the outset of the proceedings.
[11]
The
individuals implicated in the Charter violations, as found by Justice Cosgrove,
included 11 Crown counsel and senior members of the Ministry of the Attorney
General of Ontario. Justice Cosgrove’s reasons are reported as R. v. Elliott
(1999), 105 O.T.C. 241.
[12]
Counsel
employed by the Attorney General of Ontario, again in accordance with the
normal practice, appealed the decision of Justice Cosgrove. Counsel for Ms.
Elliott (not the same counsel who had represented her at trial) conceded that
the findings of breaches of the Charter and abuse of process could not be
sustained and that the award of costs was not warranted, but argued that the
stay of proceedings was appropriate because Ms. Elliott’s counsel at trial was
incompetent and that it was his actions, not those of Crown counsel or other
government officials, that resulted in a breach of Ms. Elliott’s Charter
rights. The Ontario Court of Appeal did not accept that argument. On December 4,
2003, the Crown’s appeal was allowed, the stay of proceedings was set aside,
and a new trial was ordered, for reasons that are summarized as follows (R.
v. Elliott (2003), 179 O.A.C. 219, 181 C.C.C. (3d) 118, 114 C.R.R. (2d) 1,
at paragraph 166):
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[166] We conclude this part of our
reasons as we began. The evidence does not support most of the findings of
Charter breaches by the trial judge. The few Charter breaches that were made
out, such as non-disclosure of certain items, were remedied before the trial
proper would have commenced had the trial judge not entered the stay of
proceedings. The trial judge made numerous legal errors as to the application
of the Charter. He made findings of misconduct against Crown counsel and
police officers that were unwarranted and unsubstantiated. He misused his
powers of contempt and allowed investigations into areas that were extraneous
to the real issues in the case.
|
[13]
On April
23, 2004, the Attorney General of Ontario wrote to the Council requesting
pursuant to subsection 63(1) of the Judges Act that an inquiry be
commenced into the conduct of Justice Cosgrove during the Elliott trial.
Relying on material from the trial and the appeal, the Attorney General of
Ontario expressed the opinion that the conduct of Justice Cosgrove throughout
the trial had so undermined public confidence in the administration of justice
in Ontario that Justice Cosgrove had become incapable of the due execution of
his office, within the meaning of subsection 65(2) of the Judges Act.
[14]
The
opinion expressed by the Attorney General of Ontario was said to be based on
the test for judicial incapacity stated in the 1990 Decision of the Inquiry
Committee of the Council in relation to the complaint of the Attorney General
of Nova Scotia about the conduct of the Royal Commission on the Donald Marshall
Jr. Prosecution (published (1990), 40 U.N.B.L.J. 212):
|
Is the conduct alleged so
manifestly and profoundly destructive of the concept of the impartiality,
integrity and independence of the judicial role, that public confidence would
be sufficiently undermined to render the judge incapable of executing the
judicial office?
|
[15]
In
accordance with the usual practice of the Council, Justice Cosgrove was
provided with a copy of the complaint and a letter outlining certain aspects of
the procedure that would be followed, including the appointment of an Inquiry
Committee and the appointment of Independent Counsel.
[16]
On April
27, 2004, the Council issued a press release announcing that, at the request of
the Attorney General of Ontario, there would be an inquiry into the conduct of Justice
Cosgrove in relation to the Elliott trial. Justice Cosgrove was not
consulted before the press release was issued. The press release received
significant media coverage.
[17]
Between
September 7, 1999 when Justice Cosgrove rendered his decision staying the Elliott
proceedings, and April 23, 2004 when the Attorney General of Ontario submitted
his complaint, Justice Cosgrove heard a number of civil and criminal matters
involving the Attorney General of Ontario, including two in which individuals
appeared as counsel who had also acted as Crown counsel in the Elliott trial.
In none of those cases was Justice Cosgrove asked to recuse himself.
[18]
As a
result of discussions after April 27, 2004 between Justice Cosgrove and the Chief
Justice of the Superior Court of Justice, it was determined that Justice
Cosgrove would not sit on any cases until the inquiry was resolved.
[19]
Shortly
after the complaint of the Attorney General of Ontario was received by the Council,
an Inquiry Committee was appointed. The Chairperson is Chief Justice Lance
Finch of the British Columbia Court of Appeal. The other members are Chief
Justice Allan Wachowich of the Alberta Court of Queen’s Bench, Chief Justice
Michael MacDonald of the Supreme Court of Nova Scotia, Mr. John Nelligan, Q.C.
of the Ontario Bar, and Ms. Kirby Chown of the Ontario Bar. Mr. Earl Cherniak, Q.C., was appointed
Independent Counsel to the Inquiry Committee.
[20]
Justice Cosgrove brought
an application to the Inquiry Committee to challenge the constitutionality of
subsection 63(1) of the Judges Act on the basis that it infringes the
constitutionally protected independence of the judiciary. On December 16, 2004,
the Inquiry Committee dismissed the application, giving written reasons.
[21]
On January 20, 2005, Justice
Cosgrove commenced an application in the Federal Court for judicial review of
the decision of the Inquiry Committee dismissing his constitutional challenge.
By virtue of Rule
303(2) of the Federal Courts Rules, SOR/98-106, the Attorney General of Canada was named as
the respondent in that application.
On October 26, 2005, the application for judicial review was allowed. The Order
reads as follows:
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1.
This
application for judicial review is allowed;
2.
The
December 16, 2004 decision of the Inquiry Committee is set aside;
3.
This
Court declares that to the extent that subsection 63(1) of the Judges Act
confers the right on a provincial attorney general to compel the Canadian
Judicial Council to inquire into the conduct of a judge, the provision does
not meet the minimal standards required to ensure respect for the principle
of judicial independence, and is thus invalid;
4.
This
Court further declares that the Inquiry Committee is without jurisdiction to
proceed with this inquiry; and
5.
Costs
were not sought, nor are they ordered.
|
[22]
The Attorney General
of Canada, representing the Crown in right of Canada,
has appealed the Order of the Federal Court. For ease of reference, I will
refer to the appellant as the “Crown”.
[23]
Intervening in support
of the Crown’s appeal are the Attorneys General of Ontario, New Brunswick and Nova Scotia,
and Independent Counsel.
[24]
Intervening in
support of the position of Justice Cosgrove are the Criminal Lawyers’
Association, the Canadian Council of Criminal Defence Lawyers, and the Canadian
Superior Court Judges Association.
3. Standard of review
[25]
The Judge concluded
that the standard of review applicable to the Inquiry Committee’s decision on the
constitutional question raised in this case is correctness, and that the
standard of review on its findings of fact is patent unreasonableness. I agree.
No other standard of review has been proposed.
4. Findings of fact
[26]
The
undisputed facts are summarized above. There are only two conclusions of the
Inquiry Committee that could be characterized as findings of fact.
[27]
First, the
Inquiry Committee found no basis for concluding that the Attorney General of
Ontario has relied upon subsection 63(1) of the Judges Act for an
improper purpose. That conclusion is not challenged. (Indeed, it appears there
was no allegation of that nature against the Attorney General of Ontario.)
[28]
Second,
the Inquiry Committee found no basis for concluding that judges of the superior
courts are intimidated by the knowledge that an Attorney General may compel the
Council to commence an inquiry into their conduct. That conclusion was intended
to address concerns raised by Justice Cosgrove about the potential chilling
effect of subsection 63(1) on a judge of a superior court who is asked to make
a finding adverse to the Attorney General. However, counsel for Justice
Cosgrove argued, and I agree, that this finding is of little consequence because
the question of whether there is an unconstitutional infringement of judicial
independence is tested objectively, not on the basis of the perceptions of
individual judges.
5. Judicial independence
and judicial conduct
[29]
An
independent judiciary is essential to the rule of law in a democratic society.
Indeed, the Inquiry Committee in this case said that judicial independence is the
single most important element in the rule of law in a democratic society,
followed closely by the necessity for an independent bar (Inquiry Committee
decision, paragraph 26). I agree.
[30]
The independence
of the judiciary is a constitutional right of litigants, assuring them that
judges will determine the cases that come before them without actual or
apparent interference from anyone, including anyone representing the executive
or legislative arms of government: see Beauregard v. Canada, [1986] 2
S.C.R. 56 at paragraph 21, and R. v. Lippé, [1991] 2 S.C.R. 114 at page
139.
[31]
Justice
Strayer expressed this principle as follows in Gratton v. Canadian Judicial
Council (T.D.), [1994] 2 F.C. 769, at paragraph 16 (cited with approval in Reference
re Remuneration of Judges of the Provincial Court of Prince Edward Island,
[1997] 3 S.C.R. 3, at paragraph 329):
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Suffice it to say that
independence of the judiciary is an essential part of the fabric of our free
and democratic society. It is recognized and protected by the law and the
conventions of the Constitution as well as by statute and common law. Its
essential purpose is to enable judges to render decisions in accordance with
their view of the law and the facts without concern for the consequences to
themselves. This is necessary to assure the public, both in appearance and
reality, that their cases will be decided, their laws will be interpreted,
and their Constitution will be applied without fear or favour. The guarantee of
judicial tenure free from improper interference is essential to judicial
independence. But it is equally important to remember that protections for
judicial tenure were "not created for the benefit of the judges, but for
the benefit of the judged".
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[32]
However, judicial
independence does not require that the conduct of judges be immune from scrutiny
by the legislative and executive branches of government. On the contrary, an
appropriate regime for the review of judicial conduct is essential to maintain
public confidence in the judiciary: Moreau-Bérubé v. N.B. (Judicial Council),
[2002] 1 S.C.R. 249 at page 285.
6. Whether provincial
Attorneys General have any role in reviewing judicial conduct
[33]
One question
raised in this case is whether provincial Attorneys General have or should have
any part to play in the review of the conduct of judges of the superior courts
given that, by virtue of section 96 of the Constitution Act, 1867, judges
of the superior courts are appointed by the Governor General. It was pointed
out in argument that there is no evidence that provincial Attorneys General had
any such responsibilities or powers prior to the enactment of subsection 63(1)
of the Judges Act. Assuming that is so, it does not necessarily follow
that provincial Attorneys General are precluded by law from participating in
the review of the conduct of judges of the superior courts.
[34]
Under the
Canadian constitution, the superior courts of the provinces are the
descendants of the Royal Courts of Justice, and thus are courts with inherent
jurisdiction over all matters except to the extent that a different forum is validly
specified by law: Hunt v. T&N plc, [1993] 4 S.C.R. 389; Attorney
General of Canada v. Law Society of British Columbia,
[1982] 2 S.C.R. 307. Similarly,
the Attorneys General collectively are the descendants of the Attorney General
of England (see section 135 of the Constitution Act, 1867, section 5 of
the federal Department of Justice Act, section 5(d) of the Ministry
of the Attorney General Act, R.S.O. 1990, c. M.17 and analogous provisions
in other provincial statutes relating to the office of Attorney General). The
legislatures of the provinces have exclusive legislative authority with respect
to the administration of justice in the province (subsection 92(14) of the Constitution
Act, 1867).
[35]
An
important aspect of the traditional constitutional role of the Attorney General
of England is to protect the public interest in the administration of justice.
In Canada, that role is now shared by
all Attorneys General – the provincial Attorneys General within their
respective provinces, and the Attorney General of Canada in federal matters.
[36]
The public
interest in an appropriate procedure for the review of the conduct of judges is
an aspect of the public interest in the administration of justice. Therefore,
it seems to me to be consistent with Canadian constitutional principles for provincial
Attorneys General to play a part in the review of the conduct of judges of the
superior courts of their respective provinces.
7. Constitutionality of
subsection 63(1) of the Judges Act
[37]
While it
is appropriate for provincial Attorneys General to play some role in the review
of judicial conduct, the question in this case is whether the particular role
given to the provincial Attorneys General by subsection 63(1) of the Judges
Act impairs judicial independence.
(a) The objective test
[38]
Whether a
particular statutory provision is unconstitutional because it infringes
judicial independence must be tested objectively and practically. The relevant
question, paraphrasing from the reasons of Justice de Grandpré in Committee
for Justice and Liberty v. Canada (National Energy Board), [1978] 1 S.C.R.
369 at page 394, is whether a reasonable and right minded person, knowing the
relevant facts and circumstances, viewing the matter realistically and
practically, and having thought the matter through, would have a reasonable
apprehension that the statutory provision would impair a judge’s impartiality.
This test is intended to minimize the effect of subjective perceptions and individual
sensitivities, as well as remote and speculative possibilities, while at the
same time recognizing the importance of public perception in ensuring public
confidence in the impartiality of judges.
[39]
Three
essential conditions of judicial independence, as recognized in Valente v.
The Queen, [1985] 2 S.C.R. 673, are security of tenure, financial security,
and institutional independence with respect to matters of administration
bearing on the exercise of the judicial function. The element of judicial
independence of concern in this case is security of tenure. That is because one
possible outcome of an inquiry under the Judges Act is that the Council
may recommend to the Minister that the judge be removed from office, and the
Minister may agree and set in motion the Parliamentary procedure required for
the judge’s removal from office.
[40]
Also,
history has shown that an inquiry requested by an Attorney General under
subsection 63(1) of the Judges Act may result in the judge’s
resignation. Since 1977, there have been seven requests by an Attorney General
for an inquiry under subsection 63(1). Four of those resulted in a
recommendation that the judge not be removed. One of those (the 1990 Marshall inquiry) involved five
judges, two of whom resigned before the inquiry commenced. Of the remaining
three cases, two resulted in the judge’s resignation before the inquiry
commenced its work, and one resulted in the judge’s resignation after a
recommendation of removal.
[41]
The
question to be asked is this: Would a reasonable and right minded person,
knowing the relevant facts and circumstances, viewing the matter realistically
and practically, and having thought the matter through, have a reasonable
apprehension that subsection 63(1) of the Judges Act would impair a
judge’s impartiality because it requires the Council to commence an inquiry at
the request of a provincial Attorney General, without engaging the screening procedure
applied to complaints about judicial conduct made under subsection 63(2)?
(b) Applying the objective test
[42]
The
hypothetical reasonable person who must consider this question would understand
the role of a judge of a superior court, the relevant constitutional principles
(including those summarized above, and the constitutional provision by which
judges of the superior courts are assured security of tenure), the historical
and legislative context, how and in what circumstances a judge may be removed
from office, and the roles that may be played by the Attorneys General and the Council
in the investigation of judicial conduct complaints. The following discussion
touches upon what I perceive to be the relevant aspects of all of those points.
(i) Section 99 of the Constitution
Act, 1867
[43]
An
understanding of the security of tenure of judges of the superior courts must
begin with the Constitution Act, 1867, which gives judges of the
superior courts the highest possible assurance of security of tenure. Subsection
99(1) of the Constitution Act, 1867, reads in relevant part as follows:
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99. (1) […] the Judges
of the Superior Courts shall hold office during good behaviour, but shall be
removable by the Governor General on Address of the Senate and House of
Commons.
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99. (1) […] les juges
des cours supérieures resteront en fonction durant bonne conduite, mais ils
pourront être révoqués par le gouverneur général sur une adresse du Sénat et
de la Chambre des Communes.
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[44]
The Constitution
Act, 1867, does not establish guidelines for the procedure to be followed,
or the principles to be applied, when the Senate and House of Commons are asked
to consider whether the conduct of a judge warrants removal. It is generally
accepted that the Minister is responsible for presenting the question to the
Senate and the House of Commons, but it seems that on those rare occasions when
judicial conduct was in issue, the procedural details were devised on an ad
hoc basis.
(ii) Historical context of Part II of
the Judges Act
[45]
The absence of procedural
and substantive guidance created significant problems in the late 1960s in a
case involving Justice Léo Landreville: see Landreville v. Canada,
[1973] F.C. 1223 (Landreville No. 1); Landreville v. Canada
[1977] 2 F.C. 726 (Landreville No. 2); Landreville v. Canada
[1981] 1 F.C. 15 (Landreville No. 3); Martin L. Friedland, A Place
Apart: Judicial Independence and Accountability in Canada (Toronto: Canadian
Judicial Council, 1995) at page 88; and William Kaplan, Bad Judgment: The Case
of Mr. Justice Leo A. Landreville (Toronto: University of Toronto Press,
1996). The experience of that case led the Minister in 1971 to propose the
enactment of what is now Part II of the Judges Act.
[46]
The complaint against
Justice Landreville was conducted under the Inquiries Act (now R.S.C.
1985, c. I-11) by a retired Supreme Court Justice. The Commissioner concluded
that Justice Landreville was unfit for the proper exercise of the judicial function.
The Commissioner’s report was tabled in the House of Commons in August of 1966.
Later that year, a special joint committee of the Senate and the House of Commons
was appointed to “enquire into and report upon the expediency of presenting an
address” for the removal of Justice Landreville from the office of judge. That
committee reported in April of 1967, and recommended removal proceedings, based
at least in part on the report of the Commissioner. The matter had not yet come
before Parliament when Justice Landreville resigned in 1967.
[47]
Mr. Landreville later
brought an application in the Federal Court, seeking to nullify the report of
the Commissioner. The application resulted in a declaration by Justice Collier that
the Commissioner erred in law in making a finding that was not within his terms
of reference, and in failing to give proper notice of a certain allegation of
misconduct as required by section 13 of the Inquiries Act (see Landreville
No. 2, at page 759). The judge in that case also commented that the
Commissioner had not recorded Mr. Landreville’s personal history in a
completely objective way. Mr. Landreville later sued for the annuity that was
not paid to him upon his resignation. It was determined that the Governor in
Council had not properly considered his request for an annuity (see Landreville
No. 3). Mr. Landreville’s claim eventually was settled with an ex gratia
payment.
[48]
Many criticisms may be
made about the procedure followed in the Landreville case, but it seems to me
that the root of the problem was the lack of a fair and properly focused procedure
for investigating complaints about the conduct of judges of the superior courts.
The solution involved the enactment, in 1971, of Part II of the Judges Act.
As stated above, those provisions established the Council and empowered the Council
to conduct investigations into judicial conduct and to report its
recommendations to Parliament.
(iii) Section 71 of the Judges Act
[49]
I pause at this point
to note that the power of the Governor General to remove a judge from office
upon the joint address of the Senate and the House of Commons is not affected
by anything done, or omitted to be done, under Part II of the Judges Act.
Section 71 of the Judges Act is explicit on that point. That means, in
my view, that it is possible in theory for a judge to be removed from office
even if the inquiry procedure in Part II of the Judges Act is never
engaged. As a practical matter, however, and especially with the lessons
learned from the Landreville experience, it seems to me improbable that
Parliament could be moved to recommend the removal of a judge without the kind
of firm foundation in fact and principle that is likely to be obtained through
an inquiry under Part II of the Judges Act, or its functional equivalent.
(iv) Procedure for an Attorney
General’s complaint under subsection 63(1)
[50]
The procedure
followed in an inquiry into the conduct of a judge of a superior court is found
in part in the Judges Act, and in part in the Canadian Judicial
Council Inquiries and Investigations By-Laws, SOR/2002-371 (the “Inquiry
By-Laws”), made by the Council under the authority of paragraph 65(3)(c) of
the Judges Act. In the discussion below, I summarize the provisions and
rules governing the inquiry procedure that seem to me to be relevant to this
case. However, it is useful first to take note of the limits on the discretion
of an Attorney General to exercise the power in subsection 63(1) to compel the
commencement of an inquiry.
[51]
The most
important constraint, in my view, flows from the traditional constitutional
role of Attorneys General as guardians of the public interest in the
administration of justice. Attorneys General are constitutionally obliged to
exercise their discretionary authority in good faith, objectively,
independently, and in the public interest: Krieger v. Law Society of Alberta,
[2002] 3 S.C.R. 372; The Hon. Ian G. Scott, “Law, Policy and the Role of the
Attorney General: Constancy and Change in the 1980s”, (1989), 39 U.T.L.J. 109
at page 122; The Hon. J.C. McRuer, Royal Commission of Inquiry into Civil
Rights, Report No. 1, vol. 2, c. 62 (Toronto: Queen’s Printer, 1968) at page
945; The Hon. R. Roy McMurtry, “The Office of the Attorney General”, in D.
Mendes da Costa, ed., The Cambridge Lectures (Toronto: Butterworths,
1981) at page 7. Attorneys General are entitled to the benefit of a rebuttable presumption
that they will fulfil that obligation.
[52]
A second
constraint is found within subsection 63(1) itself. As I read that provision, an
Attorney General is entitled to request the commencement of an inquiry under
subsection 63(1) only in relation to judicial conduct that is sufficiently
serious to warrant removal of the judge from office for one of the reasons
specified in paragraphs 65(2)(a) to (d). The Council, in the Report of the Canadian
Judicial Council to the Minister of Justice under ss. 65(1) of the Judges Act concerning
Mr. Justice Jean-Guy Boilard of the Superior Court of Québec (2003), said (at
page 3) that it may decline to commence an inquiry on the basis of a request
under subsection 63(1), or the Inquiry Committee may decline to continue an
inquiry, if the letter of request from an Attorney General does not allege bad
faith or abuse of office, and does not on its face disclose an arguable case
for removal. In my view, this principle (which I will refer to as the “Boilard
rule”) is a valid expression of the general principle that a tribunal, as master
of its own procedure, may decline to proceed in any case that is outside its
mandate or is an abuse of its process.
[53]
It is true
that an Attorney General, while acting in good faith, may submit a request that
is not well founded. That is demonstrated by the fact that not every inquiry requested
by an Attorney General results in a recommendation for removal and that, in at
least one instance, the request did not disclose even a prima facie
case. However, the question of whether judicial conduct in a particular case warrants
removal is a matter on which reasonable and knowledgeable people may disagree. The
possibility that an Attorney General may misjudge the seriousness of particular
judicial conduct bears little weight in determining the constitutionality of
subsection 63(1).
[54]
I turn now
to the inquiry procedure itself. The
inquiry is conducted in the first instance by an Inquiry Committee, which has
the power of a superior court to summon and compel the attendance of witnesses
and to require the production of documents.
[55]
An Inquiry Committee
consists of an uneven number of members. The majority are members of the Council
designated by the Chairperson or Vice-Chairperson of the Judicial Conduct
Committee of the Council. The others, designated by the Minister, may be members
of the bar of a province of at least 10 years standing. An Inquiry Committee cannot
include any person who is a member of the same court as the judge who is the
subject of the inquiry. The Chairperson or Vice-Chairperson of the Judicial
Conduct Committee chooses the Chairperson of the Inquiry Committee.
[56]
The Chairperson or
Vice-Chairperson of the Judicial Conduct Committee also appoints Independent
Counsel to the Inquiry Committee, who must be a member of the bar of a province
of at least 10 years standing whose ability and experience is recognized within
the legal community. Independent Counsel is responsible for presenting the case
to the Inquiry Committee and making submissions on questions of procedure and
applicable law that are raised during the proceedings. Independent Counsel must
perform their duties impartially and in the public interest.
[57]
Proceedings
of the Inquiry Committee must be conducted in accordance with the principle of
fairness. The judge who is the subject of the
inquiry must be given reasonable notice of the subject matter of the inquiry
and of the time and place of any hearing, and must be afforded an opportunity,
in person or by counsel, of being heard at the hearing, of cross-examining
witnesses and adducing evidence on his or her own behalf. It is the
responsibility of Independent Counsel to give the judge sufficient notice of
all complaints or allegations that are being considered by the Inquiry
Committee to enable the judge to respond fully to them.
[58]
A hearing of the
Inquiry Committee is held in public unless the Inquiry Committee determines
that the public interest and the due administration of justice requires that
all or part of it be conducted in private, or the Minister requires that it be
held in public. The
Inquiry Committee may prohibit the publication of any information or documents
placed before it if it determines that publication is not in the public
interest.
[59]
The
Inquiry Committee reports to the Council setting out its findings and
conclusions as to whether or not a recommendation should be made for the
judge’s removal. A copy of the report is
provided to the judge, to Independent Counsel and to any other person with
standing before the Inquiry Committee. If
the hearing was conducted in public, the report is made available to the public.
[60]
Within 30
days of receiving the report of the Inquiry Committee, or such further time as
may be allowed by the Council, the judge may make a written submission to the Council
regarding the report.
Independent
Counsel is provided with a copy of any written submission the judge makes to
the Council, and may submit a written response within 15 days.
[61]
If the
judge makes an oral statement to the Council, the statement is given in public
unless the Council determines that it is not in the public interest to do so. Independent Counsel must be present and
may be invited to make an oral statement in response.
[62]
The Council
considers the report of the Inquiry Committee and any written submission or
oral statement of the judge or Independent Counsel. Members of the Inquiry
Committee do not participate in these deliberations.
[63]
The Council
provides the Minister with a report of its conclusions, and the record of the
inquiry. A copy of the report is provided to the judge. If the Council is of the opinion that the
judge has become incapacitated or disabled from the due execution of the office
of judge for any of the reasons set out in subsection 65(2) of the Judges
Act (namely, (a) age or infirmity, (b) having been guilty of misconduct, (c)
having failed in the due execution of the office of judge, or (d) having been
placed, by his or her conduct or otherwise, in a position incompatible with the
due execution of the office of judge), the Council may, in its report to the
Minister, recommend that the judge be removed from office.
[64]
As
explained above, the Council has no power to remove a judge from office. That
can be done only by the Governor General on the joint address of the Senate and
House of Commons. If the question of removal is to be put before Parliament, it
is the Minister who does so. It is open to the Minister to put the question to
Parliament, or to decline to do so. Like all acts of an Attorney General, the
Minister’s discretion in that regard is constrained by the constitutional obligation
to act in good faith, objectively, independently and with a view to safeguarding
the public interest. It is presumed, in the absence of evidence to the
contrary, that the Minister will fulfil that obligation.
[65]
I would
emphasize five aspects of the inquiry procedure that, taken together, establish
that the inquiry, once commenced, is fair to the judge who is the subject of
the inquiry:
1)
The judge
is given notice of the allegations of the complainant, and an opportunity to
respond and to be heard.
2)
The
inquiry is entrusted in the first instance to a group of senior judges and
lawyers, and their recommendation is reviewed independently by a larger group consisting
of Chief Justices, Associate Chief Justices and other senior judges of the
superior courts. That ensures that the issues are considered by a number of different
individuals whose collective knowledge and experience is not only appropriate
to the task, but the best available in terms of their knowledge of the relevant
constitutional principles and the work of the judiciary.
3)
The
substantive and procedural aspects of the inquiry are guided by the
participation of Independent Counsel, who is required to act impartially and in
the public interest, which necessarily includes the public’s interest in
maintaining the independence of the judiciary. I note parenthetically that it
was Independent Counsel who argued for the summary dismissal of the Attorney
General’s request for an inquiry in the Boilard case (referred to above).
4)
The
Attorney General who requests an inquiry does not present or prosecute the case
against the judge, and has no formal role in the conduct of the inquiry.
5)
The outcome
of the proceedings is a report and recommendation to the Minister, who must
determine whether the matter will be referred to Parliament. The Minister, as
the Attorney General of Canada, is obliged and presumed to consider that
question in good faith, objectively, independently and in the public interest.
(v) Screening
procedure for ordinary complaints under subsection 63(2)
[66]
I will now
describe the screening procedure followed when a complaint is made under subsection
63(2) of the Judges Act, which is the procedure that is omitted
when an Attorney General requests the commencement of an inquiry under
subsection 63(1).
[67]
A
complaint under subsection 63(2) (which I will refer to as an “ordinary
complaint”) may be made by anyone, including a Chief Justice (that was the
situation in Gratton, cited above). Even an Attorney General may have
recourse to subsection 63(2) rather than subsection 63(1), and presumably may do
so to make a complaint about the conduct of a judge that may not warrant
removal for any of the reasons set out in paragraphs 65(2)(a) to (d).
[68]
The Council
normally does not publicize ordinary complaints or the results of the
complaints procedure, unless the result is the establishment of an Inquiry
Committee. However, the complainant is not obliged to keep the complaint
confidential, and may not do so.
[69]
An
ordinary complaint is subject to a multi-tiered procedure to determine whether
an inquiry is warranted. The procedure is set out in detail in the Procedures
for Dealing with Complaints made to the Canadian Judicial Council about
Federally Appointed Judges.
[70]
At the
first level, the complaint is reviewed by the Executive Director of the Council
to determine whether it warrants the opening of a file. No file is opened if
the complaint is clearly irrational or an obvious abuse of the complaint
process. If a file is opened, the complaint progresses to the second level.
[71]
At the
second level, the complaint is referred to the Chairperson (or the
Vice-Chairperson) of the Judicial Conduct Committee. The Chairperson may
dispose of the complaint summarily if it is outside the mandate of the Council
(for example, a complaint that seeks a review of a judge’s decision rather than
a judge’s conduct), or if it is trivial, vexatious, made for an improper
purpose, manifestly without substance, or does not warrant further
consideration. If the complaint is not dismissed summarily, the Chairperson may
seek additional information from the complainant, the judge or the judge’s
chief justice. The complaint may be dismissed, resolved on the basis of
remedial measures, or referred to a panel. If it is referred to a panel, it
progresses to the third level.
[72]
At the
third level, the complaint is considered by a panel of three or five judges
(not including a judge who is a member of the same court as the subject of the
complaint, and not including the Chairperson of the Judicial Conduct Committee).
The judge is informed of the constitution of the panel, provided with any
information not previously disclosed, and invited to respond. If the complaint
is not considered serious enough to warrant an inquiry, it may be resolved at
that stage with a letter of concern, or a recommendation of remedial measures. If
the panel considers the complaint serious enough to warrant an inquiry, the
panel makes a recommendation to the Council that an Inquiry Committee be
established. That moves the complaint to the fourth level.
[73]
At the
fourth level, the Council considers the recommendation of the panel and decides
whether an inquiry is warranted. The judge has an opportunity to make
submissions to the Council as to why the complaint should or should not be investigated
further. If an inquiry is warranted, the Inquiry Committee procedure outlined
above is followed.
[74]
The
experience of the Council is that the vast majority of ordinary complaints are
dismissed summarily. Of the few that remain, almost all are resolved quickly
with remedial measures or a letter of explanation. Only a miniscule percentage
of ordinary complaints disclose conduct that warrants an inquiry, and even
fewer result in a recommendation of removal.
(vi) Discussion
[75]
The manner
in which an ordinary litigant might perceive the power of an Attorney General to
compel the commencement of an inquiry into the conduct of a judge was
graphically described by counsel for the interveners, the Criminal Lawyers’
Association and the Canadian Council of Criminal Defence Lawyers. He posed the
hypothetical case of a criminal defendant being prosecuted in a superior court
by counsel employed by the Attorney General, where the defendant knows that the
Attorney General may request an inquiry under subsection 63(1) of the Judges
Act, and so is in a position to hurt the judge more than the defendant
could possibly do by making an ordinary complaint under subsection 63(2). It
was argued that an ordinary litigant might well apprehend that the judge would
hesitate to give effect to a challenge to the propriety of an act of Crown
counsel or others employed by the Attorney General.
[76]
In my
view, this example is flawed, primarily because it assumes that the relevant
constitutional question is considered from the subjective view of a litigant,
rather than on the basis of the objective test referred to above. More specifically,
it fails to take into account the constitutional principle that an Attorney
General must not exercise the power under subsection 63(1) in order to “hurt
the judge”, and the presumption that the Attorney General will not act
improperly. It also disregards the fact that a complaint against a judge that
is obviously unmeritorious, however it is made or by whom, is unlikely to cause
lasting damage. If it is unmeritorious it is likely to be dismissed, either
summarily or after an inquiry.
[77]
In
practical terms, the screening procedure followed for an ordinary complaint
under subsection 63(2) of the Judges Act is advantageous from the point
of view of the judge for three reasons. First, it permits the resolution of a
complaint without publicity. Second, it permits the summary dismissal of an
unmeritorious complaint. Third, it permits the early resolution of a complaint
by remedial measures, without the establishment of an Inquiry Committee. I will
discuss each of these in turn.
[78]
Publicity. Much was made in the
argument before this Court that in this case, the publicity attached to the
complaint made by the Attorney General of Ontario, coupled with the inevitable
consequence that Justice Cosgrove was unable to sit once the matter was
publicized, was harmful or potentially harmful to the reputation of Justice
Cosgrove. I have no doubt that a publicized complaint about judicial conduct is
more difficult for a judge that an unpublicized complaint. However, it seems to
me that in the debate about the constitutionality of subsection 63(1), the risk
of publicity should be given little weight.
[79]
Judicial
or quasi-judicial procedures are conducted in public except in extraordinary
circumstances. That is normally the case for inquiries under the Judges Act,
although the Council has the authority to conduct its proceedings in private if
required by the public interest and the due administration of justice. At the
same time, it must be said as a practical matter that the Elliot trial
and appeal had attracted considerable publicity before the Attorney General
requested an inquiry. In any event, the risk of publicity is present even with
ordinary complaints, because there are no constraints on a complainant who
chooses to publicize the fact that a complaint has been made.
[80]
Summary
dismissal. Part
of the function of the screening procedure for ordinary complaints is to
facilitate the summary dismissal of complaints that on their face are
unmeritorious. In the case of an Attorney General’s request for an inquiry
under subsection 63(1), that function is served by the Boilard rule,
which effectively permits the summary dismissal of a complaint by an Attorney
General if it is obviously unmeritorious or does not disclose judicial conduct
warranting removal from office. The difference is that an ordinary
unmeritorious complaint may be dismissed before an Inquiry Committee is
established, while under the Boilard rule an Attorney General’s
complaint may be dismissed at an early stage by the Inquiry Committee itself,
either before or after its work is commenced, or it may be dismissed later by
the Council. Those differences are trivial, in my view.
[81]
Remedial
measures. It
seems to me that the possibility of a resolution with remedial measures is
unlikely to be a factor in cases involving judicial conduct that would warrant removal
of the judge from office. If an Attorney General makes a request for an inquiry
under subsection 63(1) on the basis of conduct that would not warrant removal
from office, the Boilard rule would come into play and there would be no
recommendation for removal. If the conduct would warrant removal, there can be
no valid objection to the establishment of an Inquiry Committee on the basis
that an ordinary complainant might be satisfied with a lesser remedy.
[82]
In my
view, the differences between the two complaint procedures are relatively minor
when considered against the constitutional assurance of security of tenure given
to judges of the superior courts, the constitutional role of Attorneys General
and the presumption that the Attorneys General will act in accordance with
their constitutional obligations, the substantial protection afforded by the
appointment of Independent Counsel to the Inquiry Committee, and the procedural
safeguards provided in the Judges Act, the Inquiry By-Laws, and
the Council’s rules of practice.
[83]
I return to
the question posed above: Would a reasonable and right minded person, knowing the
relevant facts and circumstances, viewing the matter realistically and
practically, and having thought the matter through, have a reasonable
apprehension that subsection 63(1) of the Judges Act would impair a
judge’s impartiality because it requires the Council to commence an inquiry at
the request of a provincial Attorney General, without engaging in the screening
procedure applied to complaints about judicial conduct made under subsection
63(2)? My analysis compels me to answer no. I conclude that subsection 63(1) of
the Judges Act is constitutional.
[84]
I have not
overlooked the argument that subsection 63(1) of the Judges Act cannot
be justified because it serves no practical purpose. That argument is based on
the proposition that an Attorney General may make an ordinary complaint under
subsection 63(2) which will be the subject of an inquiry if it survives the
screening. Perhaps the complaints procedure would not be substantially impaired
if subsection 63(1) were repealed. However, it does not follow that subsection
63(1) is unconstitutional.
8. Conclusion
[85]
I would
allow this appeal, set aside the decision of the Federal Court, dismiss the
application for judicial review, and refer this matter back to the Inquiry
Committee.
[86]
As the
Crown has not asked for costs, none should be awarded.
“K.
Sharlow”
“I
agree
J.
Edgar Sexton J.A.”
“I
agree
John
M. Evans J.A.”
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