2011 QCCA 550, 2011 QCCA 550

Unofficial English Translation Provost c. Conseil de la magistrature du Québec 2011 QCCA 550 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-020141-099 (500-17-043536-088) ( 2007 CMQC 22 ) DATE: March 23, 2011 CORAM: THE HONOURABLE JACQUES DUFRESNE, J.A. JACQUES A. LÉGER, J.A. RICHARD WAGNER, J.A. CLAUDE PROVOST APPELLANT – Petitioner - Respondent v.

CONSEIL DE LA MAGISTRATURE DU QUÉBEC RESPONDENT – Respondent and THE INQUIRY COMMITTEE ESTABLISHED BY DECISION OF THE CONSEIL DE LA MAGISTRATURE DATED OCTOBER 11, 2007, AS WELL AS EACH OF ITS MEMBERS IN THEIR CAPACITY AS MEMBER OF THIS COMMITTEE RESPONDENT – Respondent – Decision-Maker JUDGMENT [ 1 ] THE COURT : On the appeal from a judgment of the Superior Court, District of Montreal (the Honourable Mr.

Justice Clément Gascon), rendered on October 21, 2009, that dismissed the appellant’s motion for judicial review of the decision of the Quebec Judicial Council dated April 30, 2008. [ 2 ] In that decision, the Council acknowledged the report of the Inquiry Committee of the Quebec Judicial Council regarding a complaint filed by Mr. Roland Plante concerning the appellant, a judge of the Court of Quebec, and pursuant to the recommendations set out in this report, reprimanded the appellant in accordance with

section 279 of the Courts of Justice Act . [1] [ 3 ] The Committee summarized the events that gave rise to the professional ethics complaint as follows (to facilitate the reader’s comprehension, we note that the interaction between the judge and the witness who filed the criminal complaint, Roland Plante, resulted in the latter’s incarceration): [ TRANSLATION ] [11] Following the defence attorney’s question about whether the complainant had been asked to leave – a question to which he did not respond – the judge intervened: [ TRANSLATION ] THE COURT: Q. No, but the question is, to your knowledge, did someone among all the people you met that day say to you, “Leave, sir” or

“Kindly leave, sir” or “Go!” or “Get out of here!”? Any statement meaning ‘leave’. A. I’ve received better service than that in a Canadian Tire, Your Honour. Q. That is not the question, sir. A. It’s not that, Your Honour. I wanted some answers. Q. Did anyone tell you to leave? A. They can ask me to leave, but it’s my right to ask if I want to get… THE COURT: Q. Do you have any other questions? Mtre MARCO LABRIE: A. No, Your Honour [ Roland Plante, s.n.

May 11, 2007, exhibit E-4, at 53]. [12] At the end of the examinations, Provost J. reminded the attorneys that he had to rule on the sufficiency of evidence and asked them whether it was necessary to continue the preliminary inquiry on another date so that additional witnesses could be heard. The judge clearly indicated to Crown counsel that he had a burden to meet and [ TRANSLATION ] “that up to now, he is not close to having met it” [Roland Plante, s.n. May 11, 2007, exhibit E-5, at 9].

The case was thus postponed until June 20. [13] On June 20, 2007, counsel informed the judge that they had no further witnesses to call and that they were prepared to argue the sufficiency of the evidence. [14] The judge then stated: [ TRANSLATION ] THE COURT Look, we’re going to do things much more simply than that. We won’t have a debate if there’s nothing to debate. We’ll ask Mtre Labrie what he has to say to me. Mtre STÉPHANE GODRI Very good. THE COURT Because if Mtre Labrie tells me that he’s satisfied and we can go to trial, then we’ll go to trial. I’m not one to jam up the works.

If I’m asked to hand down decisions, I hand down decisions. Mtre STÉPHANE GODRI

Very good. Mtre MARCO LABRIE Attorney for the defence I stated the last time, Your Honour, and I state again that, in our opinion, there is insufficient evidence to send my client to trial [Roland Plante, s.n. June 20, 2007, exhibit E-2, at 5]. [Emphasis added] [15] Owing to a misunderstanding, which was corrected a few minutes later, Judge Provost seemed to think that the defence was acknowledging that there was sufficient evidence and it was then that he spoke as follows: [ TRANSLATION ] THE COURT Eh! I’ll be frank with you. Everyone considers that there is sufficient evidence. Perfect.

As for me, I don’t believe the two victims. I don’t believe them [Roland Plante, s.n. June 20, 2007, exhibit E-2, at 6]. [16] It was at this exact moment and while the Court was speaking with counsel that the following exchange took place between the complainant and the judge: [ TRANSLATION ] Mr. ROLAND PLANTE Thank you very much, Your Honour. THE COURT You, be quiet or you’re going to jail. Mr. RAYMOND PLANTE I said, “Thank you, sir”. THE COURT Be quiet. You and your little sarcastic remarks... You understand? Mr. RAYMOND PLANTE No, sir. THE COURT No? Off you go to the cells!

I don’t allow persons like you to talk to me like that, which proves furthermore that I’m perfectly right. There! Two o’clock this afternoon (2 p.m.). Mr. RAYMOND PLANTE I haven’t been impolite, sir. THE COURT

You are. Take him to detention. I don’t want to see him. THE CLERK I just need the person’s name. THE COURT Never mind with that. We’ll take care of that at two o’clock (2 p.m.) with the gentleman [Roland Plante, s.n. June 20, 2007, exhibit P-2, at 6–7]. [17] At the end of this exchange, counsel for the defence cleared up the misunderstanding as to his position regarding the sufficiency of the Crown’s evidence [Roland Plante, s.n.

June 20, 2007, exhibit E-2, at 7 and 9]. [18] A few moments later, as the complainant was being led towards the cellblock, the judge said as follows to the security guards: [ TRANSLATION ] THE COURT Bring that man back before me at 2 o’clock. He has caused trouble in the hearing room . I’m detaining him. You’ll be given a paper. Bring him back here at 2 o’clock. [Roland Plante, s.n. June 20, 2007, exhibit E-2, at 10]. [Emphasis added] [19] After the complainant was incarcerated, the judge heard the two attorneys’ representations regarding the charges brought against Mr. Charron and rendered an oral decision.

Finding that there was an insufficiency of evidence, he freed the accused and the hearing of the actual case ended at 10:04 a.m. [transcript of the hearing, exhibit E-3]. [20] Reading the transcript and listening to the recording, the Committee observed that the exchange between Provost J. and the complainant lasted some 30 seconds and the judge’s tone of voice was very firm but that, contrary to what the complainant alleges, he did not raise his voice. 2.2 Witnesses heard [21] The complainant testified that he was present at the courthouse without having been subpoenaed, which is correct since the attorneys had not subpoenaed any witnesses.

He said that he took a seat in the second or third row of a packed courtroom and had with him a briefcase containing his papers. He said that he waited until the two attorneys were finished speaking, but when he heard the judge say he did not believe the witnesses, this shocked him and he stood up to thank the judge for calling him a liar in front of 40 persons. In his opinion, it was the only way to protest against what he considered an unjust situation.

He testified that he had not understood the question when the judge asked him if he had clearly understood and that his negative answer did not contain any malice. [22] He also testified that he left his seat only at the end of this exchange and never made any threatening comment or gesture, although he was greatly disappointed at the judge’s attitude. He complained that the judge never [ TRANSLATION ] “read him his rights” or said why he was being detained without citing him for contempt of court.

He testified that he never dared put any questions to the judge because he feared that the judge might lose control. [23] Lastly, the complainant testified that the judge never asked him to leave the courtroom and that he followed the guards without offering any resistance. [24] When he was led to the cells, he felt [ TRANSLATION ] “victimized and humiliated”. When he was brought back before the judge some 45 minutes later, the crowd had left the courtroom and the judge simply stated that he was free to go.

[25] After leaving the courthouse, he spoke with a journalist from TQS who had been alerted by telephone by one of her friends and that evening, while watching the news, he [ TRANSLATION ] “hit the ceiling” upon hearing he had a history of perjury. [Emphasis in the original report of the Inquiry Committee] [ 4 ] In its report dated April 30, 2008, the Inquiry Committee acknowledged that the judge has the inherent power to take the measures required to ensure an orderly hearing. [2] It also acknowledged that a judge’s error in applying the law does not constitute a breach of ethics. [3] Moreover, the Committee noted that [ TRANSLATION ] “the judge’s decision to detain the complainant effectively proved to be final, without appeal and irremediable”. [4] The Committee concluded its analysis as follows: [ TRANSLATION ] [79] After hearing the judge and considering the circumstances as a whole,

section 484 Cr. C., and the applicable principles with respect to contempt of court, the Committee concludes that the judge has not breached

section 1 of the Judicial Code of Ethics . [80] However,

section 2 of the Judicial Code of Ethics states that t he judge should perform the duties of his office with integrity, dignity, and honour . [81] The word [ TRANSLATION ] “dignity” is, according to Le Petit Robert dictionary, synonymous with the terms [ TRANSLATION ] “reserve, restraint” and antonymous with the terms [ TRANSLATION ] “indignity, abandon, and vulgarity” [ Le Petit Robert , 1991, s.v. “ dignité ” ] . [82] The judge must understand that the power and prestige of his or her role confer great importance upon his or her comments and decisions [Canadian Judicial Council , Commentaries on judicial conduct , (Cowansville: Yvon Blais, 1991) at 86] . [83] In light of the evidence, the Committee concludes that the swiftness of the judge’s reaction to the complainant’s possible sarcastic comments, the familiar tone he used in addressing him and the seriousness of the consequences of his decision to deprive the complainant of his right to liberty without allowing him to explain himself and without giving him any explanation constitute a breach of

section 2 of the Judicial Code of Ethics . [84] The disproportionality between the incident and the deprivation of the complainant’s liberty constitutes conduct indicating a lack of reserve and restraint. [ 5 ] The appellant raises three grounds of appeal: 1) the Committee and the Council exceeded their jurisdiction by basing their conclusion that an ethical breach had been committed on elements that constitute an integral part of the decision-making process and that are inseparable therefrom; 2) the standard of review is not that of reasonableness but of correctness since the constitutional principle of independence is at issue; and 3) regardless of the applicable standard, if the Court finds that the Committee acted within its jurisdiction, the Council’s decision was nevertheless unreasonable. [ 6 ] Case law holds that the judicial ethics process does not call into question the independence of the judiciary: [TRANSLATION] [11] In case law, the ethical process that applies to judges, if assigned to a body composed primarily of judges, is distinct from that applicable to governments and legislators.

Consequently, it does not call into question the independence of the judiciary with regard to the other powers of the State, an independence that benefits the parties, not the judges. [12] Case law also holds that abuse of judicial independence by a judge threatens the integrity of the judiciary as a whole, harm that cannot be remedied by appeal or judicial review ( Moreau-Bérubé v.

New Brunswick (Judicial Council) , [2002] 1 SCR 249 , 2002 SCC 11 , at para 58 ). [13] Finally, case law holds that judicial committees possess a greater expertise than reviewing judges in assessing the distinction between the impugned judicial actions, which can be remedied by the usual appeals process, and those that may threaten the integrity of the judiciary as a whole, thus requiring intervention by the operation of those disciplinary provisions applicable to judges ( Moreau- Bérubé , supra , at para 60 ). [14] Indeed, a judicial council made up mainly of judges, who are aware of the delicate balance between judicial independence and the integrity of the judiciary, is eminently qualified to render a collegial decision regarding a judge's conduct.

A judge sitting alone in judicial review of a decision of this council does not enjoy the same advantages from a legal or judicial standpoint. [5] [ 7 ] The Superior Court judge was of the view that both the Committee and the Council acted within the limits of their jurisdiction and did not in any way exceed them. Further, he concluded that he [ TRANSLATION ] “should not intervene in a context in which there is no doubt as to the reasonableness of the decision”. [6] The judge then cited the leading Supreme Court cases [7] on judicial

ethics and gave reasons for his conclusions. [ 8 ] The appellant has not demonstrated that the judgment under appeal contains an error justifying the intervention of this Court.

On the contrary, the trial judge applied the law correctly by identifying the right standard of review applicable to the Council’s decision, that of reasonableness, [8] and by concluding that its decision was reasonable. [ 9 ] For the rest, the Court adopts the analysis of the trial judge, who explained his reasoning and clearly showed that the impugned decision was reasonable. [ 10 ] Moreover, the extracts of its judgment, cited above, recounting the events that led to the complainant’s detention, show that both the Committee’s and the Council’s decisions were based on evidence and in no way called into question the independence of the judiciary.

Nothing that was accepted infringes on the decision-making process to a degree that it would prevent the application of ethical rules. The Committee’s duty was not to verify whether an error had been committed in the decision-making process, but to determine whether the judge failed in the due execution of his office. [ 11 ] The Committee and the Council are, in the words of the Court in Conseil de la magistrature du Québec v. Dubois , [9] eminently qualified to decide this type of case and did so in a reasonable manner. [ 12 ] FOR THESE REASONS, THE COURT: [ 13 ] DISMISSES the appeal, without costs.

JACQUES DUFRESNE, J.A. JACQUES A. LÉGER, J.A. RICHARD WAGNER, J.A. Mtre François Grondin Mtre Mark Phillips Borden Ladner Gervais For the appellant Mtre Luc Huppé De Grandpré Joli-Coeur For the respondents Date of hearing: March 17, 2011