Dockets:
T-414-17 to T-419-17 and
T-422-17 to T-435-17
Citation: 2017 FC 449
[ENGLISH
TRANSLATION]
Ottawa, Ontario,
May 4, 2017
PRESENT: The Honourable Mr. Justice Noël
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BETWEEN:
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THE HONOURABLE MICHEL GIROUARD
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Applicant
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and
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THE ATTORNEY GENERAL OF CANADA
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Respondent
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INQUIRY COMMITTEE CONCERNING THE
HONOURABLE MICHEL GIROUARD
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Mis-en-cause
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CANADIAN JUDICIAL COUNCIL
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Mis-en-cause
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THE HONOURABLE STÉPHANIE VALLÉE
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Mis-en-cause
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JUDGMENT AND REASONS
I.
PRELIMINARY REMARKS
[1]
Given the Chief Justice of the Federal Court’s
involvement on the first Inquiry Committee, I assume, as senior justice on the
Court, his responsibilities with regard to how to proceed in these cases and to
the summonses to issue under the circumstances. As such, I am acting as case
manager. The second Inquiry Committee’s decision, which led to the filing of 20
applications for judicial review, is dated April 5, 2017. This
interlocutory application for a stay of the inquiry process, which was to have
begun on May 8, was not filed until April 26, which left little time
to complete the interlocutory application. On April 27, I presided over a
telephone conference hearing with counsel for the applicant and the respondent.
At this hearing I said that given the short time frame and the problems finding
another justice (Mr. Justice Paul Rouleau of the Ontario Court
of Appeal, who, as deputy judge, would be responsible for looking further into
any substantive issues raised in the applications for judicial review), I was going
to organize my schedule to hear this case on May 2, 2017 in order to meet
the deadline of May 8 (the scheduled hearing start date). After the
April 27 telephone conference hearing, I signed an order stating a
deadline for the Attorney General of Canada to file his reply motion record,
setting the hearing date, and authorizing electronic service of proceedings.
II.
OVERVIEW
[2]
Mr. Justice Girouard, the applicant,
through an interlocutory application, is seeking a stay of his inquiry process
and to reserve his remedies to amend his applications for judicial review
depending on the result of this interlocutory application.
[3]
The 20 applications for judicial review that
underlie the interlocutory application for a stay of the inquiry currently
before the Court concern many decisions rendered by the Canadian Judicial
Council Inquiry Committee at a hearing on February 22, 2017. Reasons
follow. The reasons were rendered on April 5, 2017.
[4]
I find as follows: Firstly, the 20 applications
for judicial review of the second Inquiry Committee’s preliminary decisions are
premature. Secondly, the applicant does not meet the test of irreparable harm
or of the balance of inconvenience as stated in RJR-MacDonald Inc. v. Canada
(Attorney General) [RJR-MacDonald], [1994] 1 S.C.R. 311. My findings
will be discussed further in these reasons. Therefore, I cannot grant the
application for a stay of the inquiry process regarding the applicant and I
deny the request to amend the applications for judicial review. Consequently, I
grant a stay of the proceedings in the 20 application for judicial review
files.
III.
FACTS
[5]
The following facts underlie the application for
a stay, but to provide more information, the respondent presents a clear
history of the proceedings and the investigative mechanism into the judicial conduct
in paragraphs 5 to 41 of his “Written
representations.”
[6]
Girouard J. has been a Superior Court of
Quebec judge since September 30, 2010. In the fall of 2012, the Directeur
des poursuites criminelles et pénales told Mr. Chief
Justice François Rolland of the Superior Court of Quebec that,
through the “Écrevisse” inquiry, a drug
trafficker who became an informant identified Girouard J. as being his
client many years ago. The Directeur also told the Chief Justice that the
police were in possession of a video recording that seemed to show
Girouard J. buying cocaine from an individual. On November 30, 2012,
Rolland C.J. wrote to the Canadian Judicial Council to request a review of
Girouard J.’s conduct. He has been suspended with pay since
January 2013.
[7]
In brief, after a complaint is reviewed, if it
is deemed admissible, the complaint process is as follows: (1) An inquiry
committee is put in charge of hearing the evidence, noting the facts, and
drawing its own conclusions; (2) The Canadian Judicial Council reviews the
inquiry committee’s recommendations and gives an independent ruling on the
facts therein; (3) The Canadian Judicial Council shares its recommendation to
the Minister of Justice to remove or keep the judge.
[8]
In November 2015, the first Inquiry Committee
concluded that it could not find on a balance of probabilities that the
allegation against Girouard J. had been proven. However, the majority of
the Inquiry Committee determined that his testimony lacked frankness, honesty
and integrity. The Inquiry Committee was of the opinion that Girouard J.
placed himself in a situation of incompatibility with his judicial office and
that his testimony compromised the integrity of the judicial system. Therefore,
the majority of this first Inquiry Committee recommended that Girouard J.
be removed from office.
[9]
On April 20, 2016, after reviewing the
Inquiry Committee’s recommendations, the Canadian Judicial Council recommended
to the Minister of Justice that Girouard J. not be relieved of his
judicial duties.
[10] On June 14, 2016, the Minister of Justice Canada and the
Attorney General of Quebec ordered the Canadian Judicial Council to initiate,
under subsection 63(1) of the Judges Act, a new inquiry regarding
the findings of the majority of the Inquiry Committee that led it to recommend
Girouard J.’s removal from office. After receiving this letter, the
Canadian Judicial Council formed a new Inquiry Committee. It prepared a notice
of allegation that included the ministers’ complaint and that of another
person. At the end of February 2017, Girouard J. submitted to the
Inquiry Committee preliminary objections and a request for a stay of
proceedings. These objections and this request were denied on February 22,
2017 and the reasons were rendered on April 5, 2017. On March 21, 2017,
the Inquiry Committee announced that the inquiry would begin on May 8,
2017 and would last that entire week (and the following week, if necessary).
[11] These are preliminary decisions in connection with the 20
applications for judicial review in this case. The applicant is therefore
asking the Court to postpone the May 8, 2017 inquiry proceedings.
[12]
It is my opinion that the respondent usefully
categorized the preliminary objections and the Inquiry Committee’s decisions
regarding the applications for judicial review in paragraphs 42 to 61 of
his “written representations”:
- [translation] “Motion
to strike the joint ministerial application to hold an inquiry and grounds
based on the concept of estoppel.
- Grounds regarding the Inquiry Committee’s jurisdiction beyond
requesting a departmental investigation.
- Grounds regarding the nature and purpose of the Inquiry
Committee’s investigation.
- Grounds based on reasonable apprehension of structural or
institutional bias that may offend judicial independence.
- Grounds based on the constitutionality of the enabling
regulatory provisions and the inquiry process.
- Requests for
case management measures.”
[13] In an April 27, 2017 order, I instructed Girouard J.’s
counsel to file a motion to consolidate under Rule 105 of the Federal
Courts Rules while taking this categorization into consideration. Before
identifying the issues, let us take a brief look at the parties’ submissions.
IV.
SUMMARY OF SUBMISSIONS
A.
The applicant’s submissions
(1)
Prematurity
[14] Not until oral submissions were heard did the applicant argue that
the Canadian Judicial Council’s decision not to accept the allegations against
Girouard J. was a final judgment equivalent to that of a higher court.
Therefore, the applicant contends that he followed the principle of
non-interference to the letter as stated in Canada (Border Services Agency)
v. C.B. Powell Limited [Powell], 2010 FCA 61, because the
administrative proceedings were completed.
[15] Proper procedure dictates that the ministers should have applied for
judicial review of this decision, not an “inquiry on an
inquiry” digressing from the procedure established by the Judges Act,
RSC 1985, c J-1, and the principles of inquiry into judicial conduct
described in Ruffo v. Conseil de la magistrature [Ruffo], [1995]
4 SCR 267. This motion is also in a class of its own because the applicant is
of the opinion that the ministers interfered in the disciplinary process.
[16] In addition, during oral submissions, the applicant argued that the
decisions made by the Inquiry Committee in February 2017 are final and as
a result, they differ from interlocutory decisions.
[17] The applicant also argues that because the composition of the panel
was disputed, a decision on the panel’s ability to proceed must without
question be made before the inquiry starts.
(2)
The RJR-MacDonald test
[18] The applicant contends that his request for interlocutory relief in
the context of a judicial review is consistent with the tests stated in RJR-MacDonald
above.
[19] With regard to the first component (i.e. the existence of a serious
issue on the merits), the applicant essentially argues that some questions of
procedural fairness related to the process followed by the Canadian Judicial
Council and by the justice ministers warrant the interlocutory intervention of
the Court because some of his rights are affected. The applicant also argues
that these proceedings are a violation of broader principles such as
substantive rights and judicial independence.
[20] With regard to the second component (i.e. Girouard J. suffering
irreparable harm if the interlocutory application is denied), the applicant
argues that the whole process he faces is a grave injustice. To that effect, he
argues that the proceedings are an attack on his reputation and that some of
his rights were infringed upon, as stated above
[21] Among other things, the applicant argues that there was bias when
the second committee was appointed because two of its members sat on the
committee reviewing the first complaint and recommended that an inquiry be
conducted into it. He argues that this breach of procedural protections
contravenes section 23 of the Quebec Charter of Human Rights and
Freedoms.
[22] With regard to the third component (i.e. the balance of
inconvenience favouring Girouard J.), the applicant suggests that delaying
the inquiry is not an inconvenience to the respondent because the inquiry will
continue at a later date. Therefore, that puts the balance in his favour
because the consequences for him could be serious and irreparable. He also
argues that it is in the public interest for the ministers to comply with the
judicial discipline process set out by the legislation and with the underlying
principles of judicial independence.
B.
The respondent’s response
(1)
Prematurity
[23] On the issue of the prematurity of the applications, the respondent
argues that the applications for judicial review are premature because the
Girouard J. inquiry process continues and there are no exceptional
circumstances allowing the Court to analyze the three components of the RJR-MacDonald
test. The concerns raised by the applicant (i.e. that they were related to
procedural fairness, bias and a constitutional issue) do not meet the strict
exceptional circumstances test clearly established in Powell above.
[24] In response to the applicant’s argument that the Canadian Judicial
Council’s decision is final, the respondent contends that Halifax (Regional
Municipality) v. Nova Scotia (Human Rights Commission) [Halifax],
2012 SCC 10, at paragraph 36, establishes that even when a final decision
concerns jurisdiction, the parties must await the result of the full
administrative process. It is also stated that the Inquiry Committee’s
decisions are in large part interlocutory because they can be amended based on
the evidence and on the progress of the inquiry. Because the inquiry is still
in progress, the administrative process is not exhausted and the principle of
non-interference in Powell applies. The respondent adds that the
applicant’s concerns are premature and hypothetical because neither the new
Inquiry Committee nor subsequently the Canadian Judicial Council recommended
his removal from office.
(2)
The RJR-MacDonald test
[25] Although he explicitly disputes only the second and third component
of the RJR-MacDonald test, the respondent still argues that neither the
applications for a stay nor the underlying applications for judicial review
present serious issues that are specific enough to allow the Court to conduct a
proper preliminary review.
[26] With regard to the irreparable harm component, the respondent states
that the onus is on the applicant to provide convincing proof of the harm that
he would suffer. He argues that the applicant did not prove that he would
suffer irreparable harm if the Inquiry Committee conducted its inquiry on the
scheduled date.
[27] The respondent contends that, in some circumstances, an attack on
someone’s reputation may constitute valid harm, like in Douglas v. Canada
(Attorney General) [Douglas], 2014 FC 1115, at paragraphs 25
and 28. However, this is not the case here because the disciplinary proceedings
against Girouard J. have been in the public domain for several years.
Instead, Newbould v. Canada (Attorney General) [Newbould], 2017
FC 326 (notice of appeal filed March 31, 2017) and Camp v. Canada
(Attorney General) [Camp], 2017 FC 240, where allegations of attack
on reputation were not upheld, are the decisions that are similar to the case
currently before the Court.
[28] The respondent adds that it is in the public interest for judicial
inquiry proceedings to be accessible so that Canadians know whether or not the
judges that are the subject of an inquiry will continue to perform their
duties. Lastly, the respondent suggests that non-interference by the Court in
the inquiry process complies with the statutory framework governing inquiries
that was put in place by Parliament.
V.
ISSUES
[29]
To decide this matter, the Court must answer two
questions:
- Are the applications for judicial review premature given that
the proceedings are still in progress?
- Have the three
tests in RJR-MacDonald regarding interlocutory stays of proceedings
been met?
VI.
ANALYSIS
A.
Prematurity and the principle of
non-interference
[30] To begin with, it is important to give a brief reminder of the
principles associated with an interlocutory proceeding when a legislative and
regulatory framework sets out a judicial discipline process for inquiry
committees formed by the Canadian Judicial Council. (See the Judges Act,
RSC 1985, c J-1, the Canadian Judicial Council Inquiries and
Investigations By-laws, 2015, SOR/2015-203, the Handbook of Practice and
Procedure of CJC Inquiry Committees.).
[31]
Groupe Archambault Inc. v. CMRRA/SODRAC Inc. [Groupe Archambault], 2005 FCA 330 at paragraph 7,
rendered by the Federal Court of Appeal, gives a reminder of an important
principle concerning this:
[7] If judicial review of an
interlocutory judgement is rarely warranted, the granting of a stay of
proceedings pending the outcome of the review should be even rarer. Before
addressing the conditions for issuing an interlocutory stay of proceedings, the
Court must be satisfied that its intervention is warranted under the
circumstances. …
[32]
In addition, the general rule, clearly stated by
the Federal Court of Appeal in Powell at paragraph 30, is that
parties can “proceed to the court system only after all
adequate remedial recourses in the administrative process have been exhausted.”
This is the principle of non-intervention, also known under several other
names, as explained by the Federal Court of Appeal at paragraph 31 of this
decision:
[31] Administrative
law judgments and textbooks describe this rule in many ways: the doctrine of
exhaustion, the doctrine of adequate alternative remedies, the doctrine against
fragmentation or bifurcation of administrative proceedings, the rule against interlocutory judicial reviews
and the objection against premature judicial reviews. All of these express the
same concept: absent exceptional circumstances, parties cannot proceed to the
court system until the administrative process has run its course. This means
that, absent exceptional circumstances, those who are dissatisfied with some
matter arising in the ongoing administrative process must pursue all effective
remedies that are available within that process; only when the administrative
process has finished or when the administrative process affords no effective
remedy can they proceed to court. Put another
way, absent exceptional circumstances, courts should not interfere with ongoing
administrative processes until after they are completed, or until the
available, effective remedies are exhausted.
[Emphasis added.].
[33]
Powell confirms
that the principle of non-interference is almost absolute. There can be no
exceptions to the principle except where exceptional circumstances warrant. To
grant exceptions, the Federal Court of Appeal describes the standard of
reaching the threshold of “exceptional circumstances”
and gives several examples of situations that do not reach this threshold in
paragraph 33.
[33] Courts across Canada have enforced
the general principle of non-interference with ongoing administrative processes
vigorously. This is shown by the narrowness of the “exceptional circumstances”
exception. Suffice to say, the authorities show that very few circumstances
qualify as “exceptional” and the threshold for exceptionality is high ….
Exceptional circumstances are best illustrated by the very few modern cases
where courts have granted prohibition or injunction against administrative
decision-makers before or during their proceedings. Concerns about
procedural fairness or bias, the presence of an important legal or
constitutional issue, or the fact that all parties have consented to early
recourse to the courts are not exceptional circumstances allowing parties
to bypass an administrative process, as long as that process allows the issues
to be raised and an effective remedy to be granted …
[Emphasis added.].
[34] The Court of Appeal also states in Powell, at
paragraphs 39 to 46, that the existence of an issue related to the
administrative tribunal’s jurisdiction is not in and of itself an “exceptional circumstance” allowing an application for
judicial review to be filed before the administrative process is completed.
[35] The Federal Court of Appeal, in Groupe
Archambault at paragraph 10, confirms that the analysis of an
application for a stay consists of two steps. Firstly, the Court must determine
whether the issues are premature. Secondly, assuming that the first issue
permits, the Court must review whether the conditions for granting an
interlocutory stay (i.e. the existence of “exceptional
circumstances” as stated in RJR
MacDonald) are met.
[36] Quite recently, in Camp, at paragraph 13, following an
overview of the relevant case law, Mr. Justice Robertson confirms
that from that point forward, it is well established in law that “interlocutory decisions of administrative decision-makers
are not subject to judicial review until a final decision issues.”
[37] I agree with the principles established by the Federal Court of
Appeal in Groupe Archambault and Powell and with
Robertson J. in Camp.
[38] To depart from these principles, the applicant must prove
exceptional circumstances. I thoroughly read the application, the memoranda,
the affidavits, Girouard J.’s amended affidavit, and the evidence
submitted, and I cannot find any facts therein that could be equivalent to
exceptional circumstances. The minimum test for associating facts with
exceptional circumstances is “high,” as required
by the case law.. In his submission, the applicant raises issues of procedural
fairness, possibilities of bias on the part of some members of the Inquiry
Committee because of their prior involvement, as well as constitutional issues
regarding the legislation, the inquiry procedure, the lack of independent
counsel, etc. …. According to the case law, these issues are not exceptional
circumstances.
[39] It is well known that in his written representations, the applicant
did not really deal with this aspect of prematurity or the principle of
non-interference by the courts. Only during the submissions did he discuss
these.
[40] The applicant submitted that the Canadian Judicial Council’s
decision was final and that as such, it differs from an interlocutory decision.
The applicant also argued that the Inquiry Committee’s decisions and reasons
were final and non-interlocutory. Neither case warrants interference from the
Court. Whether the decision is final or interlocutory, the principle of
non-interference takes precedence. (See Halifax at paragraph 36.).
It must also be added that Inquiry Committee decisions are not generally final.
Several decisions in the 20 applications for judicial review can be amended and
adjusted depending on how the inquiry goes. In any case, at this stage no
further comments are required. The applicant can, if appropriate, submit his
representations on their merits at the hearing.
[41] I add here that I agree with the respondent’s submissions that the
applicant’s concerns are hypothetical and intended to guard against a negative
decision. Had the new Inquiry Committee or, subsequently, the Canadian Judicial
Council ruled in favour of Girouard J. by not recommending his removal
from office, the judicial reviews would no longer have a purpose and would be
merely hypothetical. This factor leans in favour of a finding that the
applicant’s concerns are hypothetical. Mr. Justice Mosley, in Douglas
at paragraph 39, says that in his view, an application for judicial review
to prevent a negative decision on the merits is manifestly premature. I concur.
As seen above, the applicant can, through a disciplinary process, use other
remedies. As an example, I think of the possibility of submitting written
representations to the Canadian Judicial Council, if appropriate. He can raise
his concerns and the Canadian Judicial Council will rule on them. As this case
shows, the Canadian Judicial Council does not automatically follow an inquiry
committee’s recommendations.
[42]
As seen above, the case law referring to
prematurity and the “exceptional circumstances”
exception is clear: issues of bias, jurisdiction, procedural fairness, and
constitutionality do not have to be placed in a vacuum; without decisive
evidence to support them, they do not warrant judicial intervention.
Paragraph 33 of Powell is clear.
[33] Concerns about procedural fairness
or bias, the presence of an important legal or constitutional issue, or the
fact that all parties have consented to early recourse to the courts are not
exceptional circumstances allowing parties to bypass an administrative process,
as long as that process allows the issues to be raised and an effective remedy
to be granted …
[43] Examples of applying the principle to specific circumstances stated
by the respondent in paragraph 75 are also helpful. Camp, Douglas
and Newbould confirm that the facts in this case do not establish
the existence of exceptional circumstances that allow us to move on to the
second stage of the analysis: determining whether or not a stay should be
granted by applying the test in RJR-MacDonald.
[44] Therefore, it is my opinion that the application for a stay of the
inquiry into the applicant’s conduct should be denied at this stage. The
interlocutory applications for judicial review submitted by the applicant are
premature; the inquiry proceeding must run its full course. If necessary, any
applications for judicial review may be decided upon.
[45] I must point out an important similar principle. Although a
disciplinary process is long, it still follows an established legislative
framework in accordance with the application of the rule of law. It is
inappropriate to short-circuit a process for any reason (political or
otherwise) before the person who is the subject of the disciplinary proceedings
has completely exhausted his or her administrative and judicial remedies.
Therefore, the principle of non-interference applies as much to the course of
justice and to the person who is the subject of the proceedings as it does to
the other parties taking part in any way in administering these proceedings.
Therefore, this principle is violated if a person tries to speed up the outcome
of a disciplinary proceeding before the last appeal limitation period has
passed.
[46] In principle, the Court’s analysis could end here but, out of
concern for sufficiency and doing justice in the interests of justice and the
parties, I will briefly analyze the three steps in the RJR-MacDonald
test on the existence of exceptional circumstances allowing the Court to grant
a stay.
B.
Test to apply according to RJR MacDonald
[47] As a reminder, to determine whether a motion to stay should be
granted, the Court must be of the opinion that the conjunctive test criteria
stated in paragraph 48 of RJR-MacDonald are met. It must be satisfied
that:
- A preliminary
assessment of the merits of the case establishes that there is a serious
issue to rule upon;
- The applicant would suffer irreparable
harm if his application were denied;
- The balance of inconvenience leans in favour of the applicant
pending a decision on the merits.
[48] To succeed, the applicant must satisfy the Court that the facts
submitted into evidence ensure that the three tests are met.
(1)
Serious issue
[49]
With regard to the first test (the existence of
a serious issue to rule upon), the Supreme Court states in RJR-MacDonald
at paragraph 55 that the threshold for establishing a serious issue is
relatively low.
[55] Once satisfied that the
application is neither vexatious nor frivolous, the motions judge should
proceed to consider the second and third tests, even if of the opinion that the
plaintiff is unlikely to succeed at trial. A prolonged examination of the
merits is generally neither necessary nor desirable.
[50] Having read the alleged facts with regard to the reasons for the
Inquiry Committee’s decision rendered on February 22, 2017, I assert as
given that the test of serious issue is fully met.
(2)
Irreparable harm
[51] The second test in RJR-MacDonald requires evidence on a
balance of probabilities that the applicant would suffer irreparable harm were
his motion for a stay of the inquiry to be denied. The onus rests on him. In
paragraph 59 of RJR-MacDonald, the Supreme Court states that
irreparable harm is harm which either cannot be quantified in monetary terms or
which cannot be cured, usually because one party cannot collect damages from
the other.
[52]
The Federal Court of Appeal adds the following
in paragraphs 6 and 7 of United States Steel Corp. v. Canada (Attorney
General), 2010 FCA 200:
[6] RJR described the central
question regarding irreparable harm as “whether a refusal to grant relief could
so adversely affect the applicants’ own interests that the harm could not be
remedied if the eventual decision on the merits does not accord with the result
of the interlocutory application”: paragraph 63. Irreparable harm refers
to the nature of the harm, not the magnitude. The nature of the harm must be
such that it cannot be quantified in monetary terms or cannot be cured:
paragraph 64.
[7] The jurisprudence of this Court
holds that the party seeking the stay must adduce clear and non-speculative
evidence that irreparable harm will follow if the motion for a stay is denied.
It is not sufficient to demonstrate that irreparable harm is “likely” to be
suffered. This alleged irreparable harm may not be amply based on assertions: Syntex
Inc. v. Novopharm Ltd. (1991), 36 C.P.R. (3d) 129, 126 N.R. 114
(F.C.A.), leave to appeal refused 39 C.P.R. (3d) v, 137 N.R. 391n; Centre
Ice Ltd. v. National Hockey League (1994), 53 C.P.R. (3d)-34 (F.C.A.); Canada
(Attorney General) v. Canada (Information Commissioner), 2001 FCA 25
(CanLII).
[53] Mosley J. states clearly in Douglas, at
paragraph 25, that irreparable harm “cannot be
substantiated through speculation as to the potential outcome or effects of an
administrative decision …” Madam Justice Mactavish, in Canada
(Attorney General) v. Amnesty International Canada, 2009 FC 426 at
paragraph 29, adds “The burden is on the party
seeking the stay to adduce clear and non-speculative evidence that irreparable
harm will follow if their motion is denied …”
[54] Paragraph 22 of Girouard J.’s affidavit is succinct with
regard to the facts associated with harm because it limits itself to listing
the questions of law related to the inquiry process, security of tenure of
judges, bias in the inquiry process, and constitutional issues. There is also
the fact that he previously went through an inquiry; then there is
non-compliance with certain procedural fairness standards. This is not what the
case law requires; legal arguments are not enough. However, though it is not
well developed, I retain for discussion his concern for his reputation. I note
that during submissions, one of the applicant’s counsel said that there was
still no harm done to him, but there was a “serious
risk.” Again, I note that this is not enough. A risk implies the
possibility of no harm being done to Girouard J.’s reputation.
[55] The reputation associated with each of us is paramount. However, as
was the case with Girouard J., when someone is subject to an inquiry
proceeding (i.e. a legal process), it is a given that the evidence against a
person could tarnish his or her reputation. This was the case for
Girouard J. during the first inquiry and the media coverage that it
received. It is in the public domain (see paragraph 22(d) of Girouard J.’s
amended affidavit).
[56] In their letter of complaint, the federal and Quebec justice
ministers stated allegations against Girouard J. that were in the public
domain.
[57] Girouard J. again feared for his reputation. However, he was
entitled to the procedural fairness that the Inquiry Committee would enforce.
He could present evidence, cross-examine witnesses, etc. In other words, he
would have the opportunity to be heard and to respond to any evidence that
could tarnish his reputation. It is even in his interest to have a public forum
to clear up these past impressions, set the justice ministers’ allegations
straight, and correct any other evidence that could tarnish his reputation. An
inquiry process is not a one-way street. Based on the facts, it also plays in
favour of the person against whom the complaint is filed. In the end, exactly
the opposite could happen: the judge’s reputation could be rehabilitated,
allowing him to assume his duties as a Superior Court of Quebec judge with
honour and dignity—in his own interest and in the interest of justice.
[58] Douglas is of no use to Girouard J.
Mosley J. granted the stay of an interlocutory decision that allowed the
Inquiry Committee to see very personal photographs of
Madam Justice Douglas. However, the effect of his decision focused on
the admissibility of one exhibit; he did not order a stay of the inquiry. I
point out that in Douglas, Mosley J. granted the interlocutory
application because the applicant did not use any other remedies to avoid
irreparable harm. I would also note that the result of the interlocutory
application did not become hypothetical, regardless of the outcome of the
decision on the merits.
[59] On the basis of hypothetical, undefined and imprecise harm, the
applicant cannot claim to have suffered harm as defined in the case law.
According to the evidence as submitted, the applicant asked the Court for a
stay of the inquiry process because if it continued, his reputation would be
tarnished. This is not the harm required to meet the second test. The harm must
be real, not compensable and not recoverable through monetary means. The
applicant requested a discontinuance of the inquiry because he wanted his 20
applications for judicial review to be heard before the inquiry took place.
This does not constitute harm. It is an attempt to change the course of the
proceedings to suit his preferences. With this in mind, as stated above, this
goes against the prematurity arguments, where it is clearly stated that
administrative proceedings must proceed to resolution before applications for
judicial review, if required, can be heard and ruled upon.
[60] Therefore, irreparable harm is not proven. With regard to harm to
his reputation, the evidence is again scanty. Legal arguments in support of
harm to his reputation are not enough. It was not proven to me that he suffered
or will suffer irreparable harm to his reputation. Conversely, the inquiry
process may rehabilitate his reputation because he will have the opportunity to
question and refute the allegations and to cross-examine witnesses.
a)
Balance of inconvenience
[61]
The balance of inconvenience is analyzed
essentially on a case-by-case basis, depending on the parties. In general, the
applicant’s personal interests are weighed against the respondent’s (a legal
system favouring proper administration of justice being in the public
interest). RJR-MacDonald provides some direction:
“The third test to be applied in an
application for interlocutory relief was described by Beetz J. in Metropolitan
Stores at p. 129 as: a determination of which of the two parties
will suffer the greater harm from the granting or refusal of an
interlocutory injunction, pending a decision on the merits. In light of the
relatively low threshold of the first test and the difficulties in applying the
test of irreparable harm in Charter cases, many interlocutory proceedings will
be determined at this stage.”
[Original emphasis].
[62] The applicant suggests that the issues of law that he raises, such
as judicial independence, are enough to associate the public interest with his
case and not with the respondent’s.
[63] The respondent also argues that the public interest in this case
favours non-interference by the courts in the decision-making process. He
refers the Court to Halifax, at paragraph 36, which states that
early judicial intervention “encourages an inefficient
multiplicity of proceedings in tribunals and courts, and may compromise
carefully crafted, comprehensive legislative regimes.”
[64] In this case, the applicant requested a discontinuance of the
inquiry which was to have started next Monday, May 8, 2017 so that 20
applications for judicial review could be heard in the months to come. Does
this play in favour of what he claims is the public interest that he
represents? This is more like a personal interest than a public interest.
[65] It is my opinion that the inquiry arising from the allegations
stated in the notice of allegation must continue, as set out in the legislation
and the regulations. I believe that this is the public interest to be favoured.
The allegations associated with Girouard J. must undergo the test of truth
or they can be disputed. The public interest requires that these allegations be
verified at that time. I will add that it is in Girouard J.’s interest for
the inquiry to be held without much delay. When the disciplinary process
concludes, the parties will be able to use the legal system depending on the
result. The allegations may not have been true. Therefore, Girouard J. may
discontinue his applications for judicial review. If this is not possible, he
may take legal action. Interpreting the public interest therefore does not
deprive the applicant of any of his rights. However, he still has his rights
and remedies, including those before the Inquiry Committee.
VII.
CONCLUSION
[66] Consequently, the application to postpone the beginning of the
Inquiry Committee hearings cannot be granted as much for prematurity reasons as
for the fact that two of the three tests in RJR-MacDonald were not met.
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