2018 QCCA 1145, 2018 QCCA 1145

Bradley (Re) 2018 QCCA 1145 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF QUEBEC No: 200-09-009462-174 (2015-CMQC-105) DATE: July 12, 2018 CORAM: THE HONOURABLE NICOLE DUVAL HESLER, C.J.Q. ALLAN R. HILTON, J.A. JULIE DUTIL, J.A. MARIE-FRANCE BICH, J.A. JACQUES J. LEVESQUE, J.A. IN THE MATTER OF: THE HONOURABLE R. PETER BRADLEY Judge of the Court of Québec MINISTER OF JUSTICE AND ATTORNEY GENERAL OF QUEBEC Petitioner R. PETER BRADLEY Plaintiff v.

CONSEIL DE LA MAGISTRATURE DU QUÉBEC Defendant and ATTORNEY GENERAL OF QUEBEC Impleaded Party REPORT OF THE COURT OF APPEAL * [ 1 ] The Minister of Justice of Quebec has requested the Court to issue a report pursuant to s. 95 of the Courts of Justice Act , CQLR, c. T-16 concerning the conduct of Judge R. Peter Bradley, of the Court of Québec. [ 2 ] In the course of the inquiry before the Court, Judge Bradley has filed an application for judicial review in which he challenges the decision of the inquiry committee which was convened under that Act .

ON THE APPLICATION FOR JUDICIAL REVIEW, THE COURT: [ 3 ] For the reasons of the Chief Justice, with which Hilton and Levesque, JJ.A. concur, and for the separate reasons of Bich, J.A., with which Dutil, J.A. concurs, as well as for the concurring reasons of Hilton, J.A., [ 4 ] DISMISSES the application.

ON THE REQUEST OF THE MINISTER OF JUSTICE FOR A REPORT, THE COURT: [ 5 ] For the reasons of the Chief Justice, with which Bich, Dutil and Levesque, JJ.A. concur, [ 6 ] CONCLUDES that Judge Bradley has breached articles 1 , 6 and 8 of the Judicial Code of Ethics , [ 7 ] RECOMMENDS that the Minister of Justice not to remove Judge Bradley from office,

[ 8 ] DECLARES that a reprimand was required, [ 9 ] CONFIRMS the sanction of a reprimand imposed by the minority members of the inquiry committee. [ 10 ] In his dissenting reasons, Hilton, J.A., recommends that the Minister remove Judge Bradley from office. NICOLE DUVAL HESLER, C.J.Q. ALLAN R. HILTON, J.A. JULIE DUTIL, J.A. MARIE-FRANCE BICH, J.A. JACQUES J. LEVESQUE, J.A. Mtre Louis Masson Mtre Bénédicte Dupuis Joli-Coeur Lacasse For R.

Peter Bradley Mtre Dominique Rousseau Lavoie Rouseau For the Minister of Justice and Attorney General of Quebec Mtre Pierre Laurin Tremblay Bois Mignault For the Conseil de la magistrature du Québec Mtre François LeBel Accompanied by: Mtre Jean-Benoît Pouliot and Mtre Victoria Brown Langlois avocats Counsel designated to the assist the Court of Appeal Dates of the hearing: November 21, 22 and 23, 2017 REASONS OF DUVAL HESLER, C.J.Q. [ 11 ] This inquiry arises from a recommendation for dismissal made by the majority of the inquiry committee seized with a complaint brought against Judge R.

Peter Bradley [1] in the context of the Court of Québec Small Claims Division case of Drolet c. Drolet . Two committee members dissented with respect to the sanction. [ 12 ] The complaint filed by the plaintiff Drolet alleged the following misconduct on the part of Judge Bradley: - Failing to show him any respect; - Criticizing the most important aspects of his case;

- Ignoring his replies; - Criticizing him for having sought to produce proof of payment (with respect to hardship and inconvenience); - Insisting that he negotiate with the defendant Drolet who was in bad faith given his initial reaction; - Showing only disdain towards him; - Taking pleasure in adjourning the matter, thereby wasting his time. [ 13 ] With respect to breach of the Judicial Code of Ethics , [2] the inquiry committee unanimously concluded that Judge Bradley had deliberately refused to hear Mr.

Drolet’s case (and thus to fulfill the duties of his office), under the pretense that he sought to reconcile the parties in circumstances which did not lend themselves to doing so and where the parties had clearly indicated their intention to proceed and nothing justified adjourning the hearing. [ 14 ] The inquiry committee concluded that Judge Bradley had contravened ss. 1 and 6 of the Code of Ethics which provide that: 1. The judge should render justice within the framework of the law. 6.

The judge should perform the duties of his office diligently and devote himself entirely to the exercise of his judicial functions. [ 15 ] The inquiry committee also held that Judge Bradley had made inappropriate and hurtful remarks towards the complainant, had failed to respect his duty to welcome and hear the parties, and had adopted a rigid attitude which offended the proper administration of justice, thereby contravening s. 8 of the Code of Ethics : 8.

In public, the judge should act in a reserved, serene and courteous manner. [ 16 ] The inquiry committee was divided, however, with respect to the appropriate sanction. [ 17 ] On one hand, the majority – composed of Judge Côté, Mtre Jobin-Laberge and Mr. Sumu – was of the opinion that it was appropriate to dismiss Judge Bradley, and proposed that the Conseil de la magistrature recommend that the Minister of Justice and Attorney General file a request with the Court of Appeal pursuant to s. 95 CJA . [ 18 ] The events recounted above constitute a second offence.

The majority qualified this repeat offence as being “[ TRANSLATION ] serious” and concluded that dismissal was required. [ 19 ] Judges Audet and Hébert were of a different mind with respect to the consequences that should flow from this second offence. They were of the opinion that, in the circumstances, recommending dismissal was not a fair, just and proportionate sanction – despite the seriousness of the breaches and the repeat nature of the offence.

In Judge Audet’s view, there was still hope that Judge Bradley would improve in the future and revise his understanding of the legislature’s intent to facilitate settlement of disputes. [3] For his part, Judge Hébert highlighted that the threshold for seeking dismissal was the intimate conviction that it would be impossible for the judge to perform the duties of the office and that the principle of security of tenure no longer applied.

This sanction is reserved for situations of exceptional gravity and, without minimizing the breaches established here, the former did not, in his view, reach this threshold. [4] Like Judge Audet, Judge Hébert saw a reasonable possibility that a reprimand would sound an alarm for Judge Bradley to improve his behaviour without delay. [5] BACKGROUND [ 20 ] Before delving into the detailed evidence led before the Court during the inquiry set out at s. 95 of the Courts of Justice Act , [6] it is fitting to list the various components of the evidence: 1) The recording of the Small Claims Division hearing before Judge Bradley. 2) The recording of Judge Bradley’s testimony before the inquiry committee, subject to an objection of irrelevance raised by his counsel, rendered moot when Judge Bradley essentially repeated before this Court what he had already said to the inquiry committee. 3) The testimony of Judge Bradley before this Court.

4) A large number of exhibits, including two filed at the hearing, subject to an objection of irrelevance which will be dismissed. [ 21 ] The following extracts from the hearing before Judge Bradley are illustrative. [ 22 ] This is how things began: [ TRANSLATION ] The question I’m asking you is: are you prepared for me to suspend the hearing so that you can go talk to each other frankly? [7] [ 23 ] A beginning immediately followed by: [ TRANSLATION ] Because this isn’t a fantastic amount, you know, this story, and you could easily find common ground. Obviously, now.

We’re going to have to – look at this, here, because in the four hundred and seventy two dollars ($472), there are… there are items that wouldn’t be granted, anyways, you know, that’s for sure, and that’s just the getting started… [8] [ 24 ] Judge Bradley continued: [ TRANSLATION ] Then, don’t tell me that you did it before, ok, don’t tell me about what happened before, I don’t want to know, we’re talking about now. […] So, if you accept to agree to meet and to reach an agreement, well, as I said earlier, then that will be a document which, after the Court has examined it, you can just keep to yourselves, saying: we agree to pay, in accordance with the agreement, X amount to Mr.

X, between now and X date. And that’s it, the file is settled and we don’t have to talk about it anymore. Is that understood? [9] [ 25 ] The discussion continued.

Once the plaintiff had explained that he was claiming postal expenses because the defendant had refused to sign an acknowledgement of receipt for the demand letter, the following remark was made: [ TRANSLATION ] Look Sir, you, uh, clearly don’t get it, ok, you don’t get it, ok, huh? [10] [ 26 ] Then, the suggestion to settle came back up, after a remark that the plaintiff’s claim was worth at most “a round sum of” [11] $466, made in the following fashion: [ TRANSLATION ] Now, if you accept to go meet each other to discuss, on the other side, to see if a compromise is possible, you might, eventually, look at this thing together to see if there isn’t something you can agree on, on both sides.

Do you understand what I’m telling you? [12] [ 27 ] The defendant responded affirmatively. The Judge turned again to the plaintiff: [ TRANSLATION ] The Court: And you, do you understand what I’m telling you? The plaintiff, Michel Drolet: I understand. I already spoke to him on the phone. The Court: I’m not talking about – put the phone aside, let go of what happened last month, last year – we’re someplace else now, we are here today, right, today and, you know, that’s what I’m talking about.

But it’s up to you – if you want to think you have the right to all that in full, that’s your choice to believe you have a right to all that, but look out, there, you’re going to have to bring evidence that they committed a fault, and then that the fault they committed, you’re going to have to identify it, the fault, it’s going to have to be identified, the fault, and then it’s you that has the burden of proof. [13] [ 28 ] Addressing the plaintiff, Justice Bradley continued: [ TRANSLATION ] So, there you go!

If you think you have everything you need to proceed today, we can proceed today, I have no problem with that. […] That being said, I return to my proposal, my suggestion: would you be willing, both of you, for me to suspend, right now, just suspend, there, so that you can go talk to each other in another room, to see if you can reach a reasonable compromise? [14] [ 29 ] The plaintiff confirmed a little later that he had understood.

The judge continued: [ TRANSLATION ] Third option: you come back: “We couldn’t agree, but maybe we’re not ready to proceed today, maybe I gotta look closer at my file, to see if I’m able to lead all the evidence necessary, according to the law, to prove fault and causation. Then, you might say: “Well, for my part, maybe I would like to have an adjournment so I can consult a lawyer in order to see what kind of evidence I need here. [15] [ 30 ] The exchange ended shortly thereafter: [ TRANSLATION ] Is that ok, it’s clear for everybody what the three (3) options are, ok?

One: you go talk to each other to see if you’re able to agree. If you agree, that’s good, it’s over, we won’t talk about it anymore. If you can’t agree, well then, you have two choices left: One: we proceed, we proceed with the warning I gave you or you tell me: “ Oh! Well, we want an adjournment so we can take a better look at our file .” [ 31 ] And the Judge persisted: [ TRANSLATION ] You lose nothing, it gives you the chance to better prepare yourselves to meet the burden of proof and the evidence you have to present; is that clear? That works? You understood everything I just said?

The plaintiff, Michel Drolet: Yes, I understood. […] I want to proceed because I already cons… The Court: Yeah, yeah, let’s proceed. The plaintiff, Michel Drolet: consulted a lawyer… [16] [ 32 ] Judge Bradley then criticized the plaintiff for having cursed in front of him. When the latter tried to explain, twice, that he was simply stating the response [17] he had received from the defendant when trying to discuss the situation, his explanation fell on deaf ears: [ TRANSLATION ] The Court: That is the last time I will hear you curse here. The plaintiff, Michel Drolet: Ok. But that’s what he said to me, ok.

The Court: Eh? The plaintiff, Michel Drolet: I’m sorry, ok. The Court: You’re going to learn to shut up. The plaintiff, Michel Drolet: Yeah. The Court: A reasonable person, especially at your age, should be capable of a bit more moderation. The plaintiff, Michel Drolet: I’m sorry, I repeated what he said to me.

The Court: It’s a good thing you apologized! Right, it is my pleasure to continue; that’s what you want to do? Let’s proceed. I insist on telling you one thing, though: it’s a bad idea not to try to sit yourselves down and talk to each other, not a good idea, I have to tell you. And, especially with the new Code of Procedure… you know, play time is over. Parties that come here just trying to tighten the screws on each other because they’re unhappy and “I didn’t like his attitude” and all that, ta-ta-ta-ta, that’s over. Taking the Court’s time just to teach someone a lesson, it doesn’t work like that.

But given the file was opened in fourteen (14), we’ll proceed, but next time it… it won’t be like that. […] It won’t work, there, I’m telling you ahead of time, ok, you have not met your burden of proof. [18] [ 33 ] After several remarks from Judge Bradley, the plaintiff directly suggested to the defendant that they talk. The latter, however, declined, saying he had understood very clearly. He still wanted to file a document – a location certificate.

That triggered the following exchange: [ TRANSLATION ] You understood so well that the answer is no, ok, it will be adjourned and it will be at your [the defendant’s] expense. […] If you don’t want to sit down, ok. Me, I’m not going to proceed today, because everybody has to file their exhibits before the trial. [19] [ 34 ] The defendant expressed his assent. The judge continued: [ TRANSLATION ] And, it’s been a long time, ok, that, that, it was clear, ok, uh, that’s it, it was clearly indicated.

And ok, when you came here, it was in December, not twenty fifteen (2015), ok, twenty fourteen (2014); nothing has happened since then. The defendant: You’re right, Judge. The Court: Yes, I know. Good. Ok… no – we are not proceeding, it’s off… it’s official, there, you can show all your exhibits to the other side so that he may look at them, that’s obvious. The defendant: It’s just one (1) sheet of… of paper. The Court: It’s not “just” one (1) sheet! No, no. One (1) single piece of paper can change a lot of things. The defendant: Perfect. The Court: Hey, it can change a lot of things. The defendant: Hum, hum.

The Court: Sometimes, ok, the thing will be this thick, and there’s no issue; sometimes it’s one (1) sheet, and still, there’s a problem – it depends. [ 35 ] The hearing ended with a long exhortation to settle [20] and the trial was adjourned, with legal costs against the defendant. [ 36 ] Before the inquiry committee, Judge Bradley explained that the new Code of Civil Procedure required of him to attempt to have the parties settle their dispute.

Moreover, he believed the plaintiff would benefit from an adjournment because the defendant wished to produce a location certificate that have not been filed. [ 37 ] Before us, Judge Bradley restated the explanations he gave to the inquiry committee with respect to his conduct. He, admitted however, that he had been wrong to criticize the plaintiff for having cursed in front of him, when the plaintiff had immediately told him that he merely was repeating what the defendant had said. He has, in addition, demonstrated openness towards correcting his behaviour.

ANALYSIS OF THE JUDGE’S BEHAVIOUR [ 38 ] Before going into the analysis of Judge Bradley’s behaviour, it is useful to remember the particular context within which judges are called upon to perform their duty in the Court of Québec’s Small Claims Division. [ 39 ] While it is true that judges who preside over hearings in a court of justice generally must demonstrate openness, patience and humility, t hese qualities are even more important in the Court of Québec’s Small Claims Division, where parties are not represented by counsel.

The task at hand there requires even more from judges, as they are called upon to fill a number of roles. [ 40 ] The judge must first welcome the litigants with benevolence. For most litigants, this will be a first encounter with judicial authority. For all, it will be an important moment in time – their “day in court”. [ 41 ] The judge must also understand psychology: the debate should be limited to the problem raised and the judge must avoid aggravating personal conflicts between the opposing parties.

S/he must be courteous, while remaining mindful of the need to encourage the parties to respect applicable rules. [ 42 ] A “small claims” judge is also something of an arbitrator, a moderator and an educator. Litigants may bring cases without fully understanding the legal basis for doing so. The opposing party, convinced of the merit of its own position – rightly or wrongly – will insist on winning. The person presiding the hearing must therefore avoid ruffling feathers while showing the parties what the legal limitations to their arguments consist of.

This is not always an easy task. [ 43 ] The judge must also be a good jurist. The debate before the judge may not set out the law by which it is governed. The judge must seek to understand the arguments advanced even when these may not be clearly or adequately expressed. [ 44 ] One must acknowledge that the judge presiding over hearings in the Small Claims Division must carry out particular, difficult judicial functions. This role, along with the judge’s manner of being and proceeding, sets the stage for building the confidence of citizens in the administration of justice.

A litigant who comes before the Small Claims Division trusts that this will be an opportunity to vindicate his or her rights. S/he must made to feel welcomed and treated with dignity and respect. [ 45 ] Judge Bradley’s conduct in this case cannot however be justified by the mere fact that he was presiding over a hearing in the Small Claims Division and had to conciliate the two parties. The courts’ mission in encouraging mediation and conciliation in no way changes the fact that these modes of settlement cannot be imposed upon the parties.

The circumstances must lend themselves to mediation and the parties must consent to mediation. It is not a question of forcing the parties to engage in what may be a dead-end process.

One might question whether, on the day of the hearing, Judge Bradley was even attempting to conciliate the parties within the meaning of art. 540, para. 3 C.C.P. , given that instead of helping them to find common ground, he chose instead to endlessly exhort them to settle on their own, outside of his presence. [ 46 ] In sum, Judge Bradley wants to justify his position by invoking the new provisions of the Code of Civil Procedure , according to which dispute resolution processes are part and parcel of civil justice for the purpose of maintaining social peace.

He also emphasized the preliminary provisions as well as, arts. 9, 18 (concerning proportionality), 540 and 560 of the new Code , which he says governed his conduct. [ 47 ] The provisions of the new Code may not be used to justify behaviour that constitutes serious ethical misconduct, made evident in this case by the mere reading of the transcripts and listening to the recording. Adjourning the hearing was not an appropriate solution to the parties’ refusal to lend themselves to a pointless encounter.

Judge Bradley may have thought his role was to verify whether the parties were open to compromise but, once this had been done – several times in this instance, – that role was surely not, out of impatience or for any other reason, to refuse repeatedly to proceed with a hearing for which the parties were prepared and which could not be adjourned without causing them unnecessary inconvenience. [ 48 ] Not only did Judge Bradley impose an adjournment without the parties asking him to do so and without any reasonable cause, he also recused himself from the case.

Today, he asserts that this was to safeguard the impartiality of the trial, but this was not truly the issue as he had not engaged in any mediation and so could not have compromised his impartiality. If he then believed or now believes that his remarks at the hearing could give rise to an apprehension of bias, [21] this simply illustrates how it is his behaviour, and nothing else, that brought the course of justice to a halt that day. [ 49 ] Before the inquiry committee, Judge Bradley argued that there had been no ethical misconduct and that he should not be reprimanded in any way.

Before this Court, he initially stayed this course, arguing he shouldn’t be reprimanded and, further, “respectfully” insisting that the inquiry committee’s decision was illfounded. Questioned as to what it was that he understood the inquiry committee to have found he had done wrong, he responded that he was being reproached for having given undue weight to conciliation and for having used that as a pretext to adjourn cases and not to hear them. Invited to expand on this, he acknowledged that his choice of words had been inappropriate and that his remarks had not been tempered.

He further admitted that he should have done more to actually listen to the parties. [ 50 ] Incidentally, this is a step in the right direction, a more judicious, more neutral attitude and a more appropriate tone.

This openness to behaviour modification must be noted as it is a factor that may influence the Court’s recommendation as to the appropriate sanction. [ 51 ] Nevertheless, I wish to state unequivocally that I share the inquiry’s committee conclusions with respect to Judge Bradley’s violations of the Judicial Code of Ethics . [ 52 ] Before turning to the issue of sanction, however, it is fitting to address Judge Bradley’s application for judicial review of the inquiry’s committee decision, the Court having advised the parties that it would address that application within the present report issued pursuant to s. 95 CJA .

THE APPLICATION FOR JUDICIAL REVIEW [ 53 ] Judge Bradley essentially attacks the validity of the proceedings that led to the present inquiry and asks the Court: - To quash the Minister’s decision; - To declare s. 269 CJA invalid to the extent that it allows for an inquiry committee to be composed of a majority of individuals who are not judges or who have not sworn an oath of office to recommend the dismissal of a Court of Québec judge; - To quash the decision rendered by the inquiry committee; - To quash the decision of the Conseil de la magistrature du Québec. [ 54 ] The conclusions sought rest upon several grounds which, in light of the oral argument, must be reformulated as follows. [ 55 ] First, Judge Bradley submits that because the decision to adjourn the hearing was a judicial act, it is not subject to disciplinary review.

Consequently, the inquiry committee had no jurisdiction to consider this purely legal act. [ 56 ] Second, Judge Bradley attacks the inquiry committee’s composition for including non-judges and even one non-jurist. [ 57 ] Third, Judge Bradley takes issue with the fact that some of the inquiry’s committee members were not required to swear an oath guaranteeing their independence and impartiality. [ 58 ] Fourth, he alleges a violation of procedural fairness, namely that the possibility that he would be dismissed from office was never debated before the inquiry committee.

He argues that the possibility of dismissal was not mentioned, which was unfair and violated his right to full answer and defence. [ 59 ] Finally, he attacks the decision itself, arguing it was unreasonable and failed to apply the proper legal principles. THE INQUIRY COMMITTEE AND ITS ROLE IN THIS CASE [ 60 ] At this point, it is appropriate to consider the composition of the five-member inquiry committee established pursuant to s. 269 CJA . The inquiry committee was composed of five members of the Conseil de la magistrature du Québec, namely: ➢ Judge Pierre E.

Audet, Associate Chief Judge Danielle Côté, and Judge Martin Hébert, all three being judges of the Court of Québec; ➢ Mtre Odette Jobin-Laberge, a lawyer; and ➢ Mr. Cyriaque Sumu. [22] [ 61 ] This inquiry committee filed its report on February 1, 2017. In the report, the inquiry committee covered both Judge Bradley’s breaches of professional ethics and the appropriate sanction. [ 62 ] Let us now consider the grounds Judge Bradley invokes in support of his application for judicial review.

WAS THE INQUIRY COMMITTEE COMPETENT. [ 63 ] In Judge Bradley’s view, his decision to adjourn the hearing was one that fell squarely within his judicial powers and that was made in a very specific context. [ 64 ] Among others sources, he draws support from Bettan c. Dumais [23] which highlights that a large percentage of complaints to the Conseil concern the Court of Québec Small Claims Division. Given that the presence of lawyers is prohibited in that division, there is no intermediary between the judge, the witnesses and the parties.

The judge asks questions, seeks the different versions of the facts, and explains rules of evidence while also deciding issues of law, attempting to reconcile the parties, calling the parties to order as necessary, and taking notes, since the judge will have to render a written judgment explaining to the parties (both convinced they are right) the reasons behind his/her decision.

This context must necessarily be taken into account in determining whether a complaint is well-founded. [ 65 ] What to make of this argument? [ 66 ] Certainly, hearings before the Small Claims Division require enormous tact on the part of judges and they must be given significant leeway in the manner in which they choose to make their presence felt. However, this does not obliterate the judge’s duty to act with serenity and reserve. Here, however, Judge Bradley adopted an inappropriate tone and an attitude that was condescending, smug and disagreeable.

He did not speak to the parties, rather he preached at them without listening to the answers they offered. The question is whether, when such remarks are made in the framework of a judicial proceeding, the judge is thereby immunised from review as to whether s/he has ethically fulfilled the duties of the office. [ 67 ] The answer is obviously no. Judicial independence may not be invoked to treat parties with disdain, to ignore what they say, or to adopt an agenda that does not correspond to their needs.

This first ground must fail. [ 68 ] Judge Bradley also relies on Boilard to support the notion that judges called to preside over an independent and impartial hearing should not be subject to disciplinary action. [24] He asks the Court, sitting in review, to hold that the facts did not lend themselves to a public inquiry such as the one with which we are charged, and that the decision at the origin of the complaint is not subject to disciplinary review.

[ 69 ] It is worth noting that Boilard has nothing in common with the present matter. Judge Boilard recused himself after several months of a biker gang trial because he was of the view that the conduct of one of the defence lawyers had so undermined his authority that he could not realistically continue to preside the trial.

The Supreme Court held that such a decision, an exercise of judicial discretion, was subject to only one form of review: an appeal. [ 70 ] As Arbour J. highlighted in Moreau-Bérubé , in order to preserve judicial independence, the remarks judges make while conducting the hearings over which they preside must receive a high degree of protection.

She also emphasized, however, that judges may not abuse their independence without exposing themselves to disciplinary review: 58 […] In some cases, however, the actions and expressions of an individual judge trigger concerns about the integrity of the judicial function itself. When a disciplinary process is launched to look at the conduct of an individual judge, it is alleged that an abuse of judicial independence by a judge has threatened the integrity of the judiciary as a whole.

The harm alleged is not curable by the appeal process. 59 The New Brunswick Judicial Council found that the comments of Judge Moreau-Bérubé constituted one of those cases. While it cannot be stressed enough that judges must be free to speak in their judicial capacity, and must be perceived to speak freely, there will unavoidably be occasions where their actions will be called into question. This restraint on judicial independence finds justification within the purposes of the Council to protect the integrity of the judiciary as a whole. […] [ 71 ] The remarks of McLachlin J. in MacKeigan v.

Hickman that “ judicial immunity is central to the concept of judicial independence” [25] seem appropriately apt and remain entirely relevant today. Judge Bradley is wrong, however, in invoking judicial independence to justify misconduct while acting in his judicial capacity during the hearing over which he presided that generated this complaint. In this case, neither Judge Bradley’s independence nor his neutrality were compromised in any way except as a result of his own behaviour.

WAS THE INQUIRY COMMITTEE PROPERLY FORMED. [ 72 ] Judge Bradley submits that the inquiry’s committee recommendation is invalid, due to the inquiry committee’s composition. Invoking the principle that only the judiciary may discipline its own members, he highlights that in this case two non-judges participated in the majority decision. He claims that this majority recommendation was central to triggering the dismissal process in this matter. [ 73 ] This argument is based on a false premise.

In a democratic society that seeks to be ever-more transparent, and where institutional conduct is subject to ever greater scrutiny, it is no longer accepted as true that only professional initiates can understand and resolve disciplinary matters. [ 74 ] In Therrien , [26] moreover, the Supreme Court recognized the legitimacy of the participation of non-judges on an inquiry committee. In addition, it should be remembered that the Conseil de la magistrature, to which the members of the inquiry committee belong, is composed of a significant majority of judges (12 of the 16 members).

Most importantly, if an inquiry committee recommends dismissal, such dismissal can only occur after the Court of Appeal, having undertaken its own inquiry, decides that the complaint is well- founded and that the judge’s conduct justifies dismissal.

The Court of Appeal is composed exclusively of judges and its report is essential to the process of dismissing a judge. [27] It is appropriate here to cite the following passage taken from the Supreme Court’s decision in Therrien : [101] In these circumstances, the presence of persons who are not members of the judiciary at a preliminary stage may seem valuable in that it may provide input for the deliberations of the committee members and bring another perspective to the perceptions that members of the legal profession (in the case of the lawyers) and the general public (in the case of the other members) have of the judiciary.

In my view, and in the specific circumstances of this case, the composition of the inquiry committee of the Conseil de la magistrature complies with the structural principle of judicial independence and the rules of procedural fairness. [28] [ 75 ] In 1995, Gonthier J., writing for the majority in Ruffo v. Conseil de la magistrature , had already noted that the presence of non- judges on an inquiry committee “ ensure[s] that its membership is not monolithic.” [29] In his 1987 text entitled The Judiciary in Canada: The Third Branch of Government , Professor Peter H.

Russel supported the presence of non-judges on provincial judicial councils: Judicial councils have also become the principal means of dealing with complaints about Canadian judges who are appointed by provincial and territorial governments. There are some interesting differences between these provincial and territorial councils and the Canadian Judicial Council. Their composition is considerably more diverse. As table 7.1 shows, all of them include representatives of the legal profession and all but Nova Scotia’s have provision for non-lawyers.

This better protects the public interest than a system which relies entirely on judges to respond to complaints about fellow judges.

Even though the chief judges of these councils will normally play the lead role in screening and following up complaints, the presence of non-judges on the councils provides more assurance of an adequate response […] [30] [ 76 ] Turning back to Therrien , it was in these terms that the Supreme Court rejected the judge’s argument that the inquiry committee was unconstitutionally formed: 98 The appellant argues that the involvement of one of the four persons who are not members of the judiciary in the decision- making process violates the collective or institutional dimension of the structural principle of judicial independence, in that only a body composed of judges may recommend the removal of a judge.

He relies on certain remarks by Lamer C.J. in Reference re Remuneration of Judges of the Provincial Court , supra , at para. 120: The guarantee of security of tenure, for example, may have a collective or institutional dimension, such that only a body composed of judges may recommend the removal of a judge. However, I need not decide that particular point here . [31]

[Emphasis added in Therrien ] [ 77 ] This passage speaks for itself and does not support Judge Bradley’s argument. In this regard, it is important to note that the report and recommendations issued by the inquiry committee put in place by the Conseil de la magistrature are but a preliminary stage in the process set out by the Courts of Justice Act . The Court of Appeal intervenes at the second stage, undertaking its own inquiry into the judge’s conduct and producing its own report. Thus, there can be no recommendation to dismiss a Court of Québec judge except by way of the highest court in the province.

The preliminary nature of the inquiry committee’s report and the role the Court of Appeal plays subsequently are thus determinative in analyzing the constitutionality of the process. [ 78 ] In Therrien , moreover, Gonthier J. insisted on this point, specifying that the fact that the Court’s report “ is judicial and in the nature of a decision is fundamental to the constitutionality of the proceeding as a whole.” [32] All the required safeguards are thereby ensured. [ 79 ] To conclude on this issue, the inquiry committee here was properly formed.

In addition, the argument advanced by Judge Bradley merely reflects the positioning by the inquiry committee members and does not address the intrinsic constitutionality of the inquiry committee’s composition, in the sense that a separate, previous decision established an inquiry committee that included only three judges. One of the judges was a member of the majority, and the two others were in the minority.

Such a specific circumstance is not, in itself, sufficient to demonstrate that the inquiry committee was unconstitutionally formed, to the extent that, if its members had taken different positions, the result could easily have been two judges recommending dismissal while the third opposed it. Either way, the inquiry committee’s constitutional validity is unaffected. [ 80 ] In addition, in Moreau-Bérubé v.

New Brunswick (Judicial Council) , Arbour J., writing for the Supreme Court, clearly indicated that disciplinary committees must be “primarily”, not exclusively, composed of judges. [33] [ 81 ] Finally, it is important to remind ourselves that this argument was not raised before the inquiry committee, thus raising the presumption that Judge Bradley acquiesced to the inquiry committee’s jurisdiction. WAS AN OATH NECESSARY. [ 82 ] Judge Bradley also invokes the fact that one of the inquiry committee member had not sworn an oath, and that another had not sworn the proper oath.

He submits 11 decisions on this point. [ 83 ] The argument must fail. Most of the decisions submitted deal with the absence of an oath of office imposed by law or distinguish the oath sworn by a decision-maker in the adjudicative context from a simple oath of discretion. [34] Besides, the judicial oath is different from other oaths of office. [35] The latter usually reflect the fact that by assuming a full-time state function, an oath of office confirms that an office created by law has been adequately filled on a permanent and on-going basis.

However, many democratic functions are assumed on a purely temporary basis by individuals who are neither elected nor formally appointed and who swear no oath of office. This is the case, notably, for jury members in a criminal trial, whose oath in no way resembles an oath of office. [ 84 ] At any rate, the issue of the oath is a red herring in this case. The oath serves only to reassure the parties that there is no reasonable apprehension of bias, a question raised in Ruffo , for example, where the Chief Justice was the complainant.

Here, Judge Bradley raises no apprehension of bias on the part of the inquiry committee, rendering this aspect of the debate all the more theoretical. The absence of such an oath cannot give rise to a presumption of bias. [ 85 ] In addition, it is fitting to highlight yet again the limited role of an inquiry committee. If an inquiry committee decides to recommend dismissal, this recommendation will necessarily come before the Court of Appeal. As already mentioned, the Court of Appeal, being composed entirely of judges, has complete freedom to decide questions of law and fact raised by the complaint.

Judicial review being thus assured, the application brought against the inquiry committee is baseless, because the Court of Appeal proceeds with its own inquiry. In other words, there is no judicial review in this case, and it is futile to examine the basis of a challenged decision which has no binding force. The standards of review applicable on appeal or in judicial review lose all relevance given that the Court of Appeal is empowered to decide all questions of fact and law raised by the initial complaint, regardless of these standards of review. The Court must come to its own independent recommendation.

WAS THERE PROCEDURAL FAIRNESS. [ 86 ] All that remains, then, is to decide whether there has been a violation of procedural fairness due to the fact that Judge Bradley did not receive advance notice that dismissal was a possible and appropriate (justified) sanction in the circumstances at hand. [ 87 ] In Moreau-Bérubé , the judge alleged a violation of natural justice, more specifically of the audi alteram partem rule, because she had not been informed that the Council could impose a sanction more severe than that recommended by the committee, arguing she would have made representations on this matter.

While this argument may have resonated with the Court of Queen’s Bench and the Court of Appeal, it was not retained by the Supreme Court: 79 In the circumstances of this case, I cannot accept that the Council violated Judge Moreau-Bérubé’s right to be heard by not expressly informing her that they might impose a sanction clearly open to them under the Act. The doctrine of legitimate expectations can find no application when the claimant is essentially asserting the right to a second chance to avail him- or herself of procedural rights that were always available and provided for by statute.

Moreover, the inquiry panel had no authority to make a recommendation to the Council about the appropriate sanction. This is made abundantly clear in the Act, where s. 6.11(1) states, “the panel shall report to the chairman its findings of fact and its findings as to the allegations of misconduct, neglect of duty or inability to perform duties of the judge whose conduct is in question”.

This contrasts with the decision-making role of the Council once the panel’s report is complete, as stipulated in s. 6.11(4) which states that “[b]ased on the findings contained in the report . . . the Judicial Council may . . . dismiss the complaint, . . . issue a reprimand . . ., or . . . recommend . . . that the judge be removed from office”. Regardless of the fact that the panel

made a recommendation that it was not mandated to make, the Council had a clear and plain discretion to choose between three options. I do not believe that the respondent, a judge, who had legal advice throughout, could have misapprehended the issues that were alive before the Judicial Council. She never asserted making such an error until it was raised by Angers J. on judicial review […] 81 The fact that a recommendation for dismissal was not discussed prior to being issued is also not relevant. The Council has no obligation to remind the respondent to read s. 6.11(4) carefully.

While the Council might have opted, as a part of their procedure, to remind Judge Moreau-Bérubé that the Council would not be bound by any recommendations made by the inquiry panel, they chose not to, and that was within their discretion. […] [ 88 ] Here, Judge Bradley certainly could not be unaware that the CJA provides for only two sanctions: reprimand or the recommendation to hold an inquiry pursuant to s. 95, and that the procedure before the inquiry committee did not require a separate hearing on the sanction – a separate hearing which did not take place here, and which Judge Bradley did not request.

It is appropriate to add that both counsel assisting the inquiry committee and counsel for Judge Bradley made representations with respect to the sanction at the single hearing held. Mtre Laurin simply pled that this was a second breach and left the question of sanction open to the discretion of the inquiry committee, [36] while Mtre Masson did not believe that “[ TRANSLATION ] the facts of the present matter would justify a reprimand.” [37] Judge Bradley was free to say more, had he thought it appropriate or necessary to do so. He did not.

In the circumstances, like in Moreau-Bérubé , it certainly did not fall to the inquiry committee to remind him to read s. 279 CJA carefully and to inform him it could “ impose a sanction clearly open to them under the Act .” [38] [ 89 ] As seen above, the role of this Court is to conduct its own exhaustive inquiry. The question of the appropriate sanction was discussed fully before the Court, and at the Court’s initiative, no less.

That being so, the argument that a violation of procedural fairness flows from the absence of an advance warning before the inquiry committee as to the possibility of dismissal is without object. Indeed, it must be remembered that the Court of Appeal would not even be called upon absent a recommendation for dismissal. Ultimately, this Court is the final adjudicator of this matter. [ 90 ] For all these reasons, I propose that the application for judicial review be dismissed. THE SANCTION [ 91 ] Having noted Judge Bradley’s significant breaches of professional ethics in the Drolet c.

Drolet matter, the Court must consider its own recommendation as to the appropriate sanction. It is to be noted at the outset that there is a dissidence on that issue. What I will now present is the recommendation of the majority. [ 92 ] Judge Bradley’s position that his misconduct did not reach the threshold of gravity required to justify even a reprimand cannot be retained. On the contrary, a severe reprimand would be in order here. Before the inquiry committee, moreover, the conclusion that there had been a breach of professional ethics was unanimous.

It was only with respect to the question of dismissal that the inquiry committee was divided. [ 93 ] Here, a majority of the Court believes that dismissal would be excessive at this juncture, despite the fact that this is a second offence. The Supreme Court in Therrien sets out the circumstances that can lead to a recommendation of dismissal [39] : [147] The public’s invaluable confidence in its justice system, which every judge must strive to preserve, is at the very heart of this case. The issue of confidence governs every aspect of this case, and ultimately dictates the result.

Thus, before making a recommendation that a judge be removed, the question to be asked is whether the conduct for which he or she is blamed is so manifestly and totally contrary to the impartiality, integrity and independence of the judiciary that the confidence of individuals appearing before the judge, or of the public in its justice system, would be undermined, rendering the judge incapable of performing the duties of his office (Friedland, supra , at pp. 80-81). [ 94 ] Judge Martin Hébert, who dissented with respect to the sanction recommended by the inquiry committee majority (namely, Judge Bradley’s dismissal), appropriately summarizes the state of the law on dismissal.

Dismissal will only be imposed where the judge in question is incapable of fulfilling the duties of the office: [ TRANSLATION ] [ 7] Before dismissal can be recommended, one must reach an intimate conviction that there is no possibility that the judge will be capable of performing the duties of the office and that security of tenure no longer applies. [8] In his text on judicial ethics, Professor Noreau reviews the relatively rare cases in which dismissal of a judge was recommended. [9] In light of the precedents described therein, the severity of this response requires great caution to ensure the measure is applied only in situations of exceptional gravity.

Without wishing to minimize the breaches of professional ethics committed by the judge here, they do not meet this threshold. [10] Reprimand is the alternative. I acknowledge immediately that this choice is not overly severe. This would be the second reprimand for the judge in question.

Without presuming what the future will bring, it is reasonable to hope that this will sound the alarm so that the judge will modify his conduct without delay. [Internal references omitted] [ 95 ] The Courts of Justice Act provides two sanctions only (this differs from what we see in the majority of Canadian provinces): reprimand and removal. The test established by the Supreme Court shows recourse to the reprimand should not be restricted to cases that

could be qualified as minor, for then all other cases would justify the judges’ removal. Besides, when the case is a minor one, s. 267 C.J.A. states that the complaint can be summarily dismissed. [ 96 ] It must therefore be concluded that breaches of ethics subject to a reprimand can reach a certain level of seriousness without reaching a level which would prevent a judge from making amends and remaining in office. Such is this case. [ 97 ] The judge’s conduct on January 19, 2016 was certainly unacceptable. That no hearing was held on that day is inexcusable.

Despite the leeway accorded to small claims judges, here, both listening and welcome were in short supply. Judicial remarks and conduct may sow seeds of doubt as to the integrity of the judiciary, especially where no appeal is available. Citizens demand much more from judges. They require nothing less than a voluntary and permanent commitment to the demands of the judicial office. [ 98 ] That being said, this complaint concerns one particular hearing, not Judge Bradley’s general judicial conduct in the courtroom.

As he told us, in his career of almost 17 years, he has presided over hundreds of trials and rendered as many decisions as a Court of Québec judge (including in the Small Claims division) without any complaint, except for a previous one. The evidence presented to the inquiry committee and to this Court contains nothing that could lead to conclude that Judge Bradley is not unknown to this type of breaches even if, in this respect, it was a second offence. [ 99 ] A few words are warranted on the issue of recidivism.

In 2014, the Conseil de la magistrature’s inquiry committee determined that Judge Bradley “[ TRANSLATION ] did not allow the parties to explain their case, not to mention that the insistence to hold a meeting to discuss a settlement discouraged the plaintiff from pursuing her procedure” [40] , which she withdrew.

The inquiry committee concluded that by addressing the plaintiff in this manner, Judge Bradley did not “[TRANSLATION] fulfill his duty, which is to render justice” and “[TRANSLATION] did not usefully and diligently fulfill his judicial obligations,” [41] thus breaching ss. 1 and 6 of the Judicial Code of Ethics . [ 100 ] However, in its report, the inquiry committee noted that Judge Bradley “[ TRANSLATION ] had acted courteously in his statements” [42] and that he was “courteous and respectful in the manner in which he addressed the parties.” [43] For the judge to have had an erroneous view of his conciliatory role and to have misunderstood its limits does not in and of itself constitute a breach of ethics, the problem having more to do with his manner, characterized by an undue insistence in conciliation (like in the present case).

The inquiry committee thus concluded that a reprimand was fitting. [ 101 ] Of course, one may wonder what were to be done if a judge consistently adjourned cases brought before him or her on the pretext of a possible conciliation or settlement? Ethically, such a situation would perhaps be different, but that is not what transpires from the 2014 report, from the 2016 report, nor from the inquiry led by this Court. [ 102 ] Regarding the lack of courtesy, the complaint in this case seems to constitute an isolated instance, according to the evidence arising from this Court’s inquiry.

As regards the erroneous manner in which Judge Bradley, on that day, exercised the conciliatory role that the Code of Civil Procedure vests in judges presiding over cases in the Small Claims division, its disciplinary overtone, under the circumstances, results above all from the fact that we are dealing with a second offence. [ 103 ] The situation, it should be noted, differs markedly from those prevailing in Therrien , Ruffo and Moreau-Bérubé , in which the removal of a judge was upheld.

In the first case, the Supreme Court held that the judge had lied about his past to improve his chances of being appointed to the bench, hiding the fact that he had a criminal record. In the second case, the judge was sanctioned for multiple ethical breaches of all sorts. And even if Moreau-Bérubé , in terms of facts, is – superficially – similar to Judge Bradley’s case in that it involves statements made in a courtroom, it is nevertheless distinguishable.

First, in Moreau-Bérubé , not only were the comments made by the judge disparaging, but they mostly revealed the presence of biases such as to cast a serious doubt over the general impartiality of the judge and, henceforth, over her capacity to perform her judicial function and adjucate matters involving some of her fellow citizens. Such is not the case here. Secondly, Moreau-Bérubé concerns the judicial review of a decision of the N ew Brunswick Judicial Council recommending that the judge be removed from office.

At that time (2002), the Supreme Court considered that the decision was not “patently unreasonable” nor “ simpliciter unreasonable”.

That it was not such does not mean that any disciplinary measure other than removal would have been unreasonable. [ 104 ] In this instance, considering the facts and circumstances arising out of the case before this Court as wells as the findings from its inquiry, the majority of us, I repeat, are of the opinion that dismissal is inadvisable and that a reprimand was sufficient. [ 105 ] Judge Bradley is cognizant that he ought to have acted in moderation and used a more appropriate language.

He also recognizes that he could have listened more. [44] Given his openness to modifying his behaviour, made clear before the Court in responding to a specific question, a majority of us believe that his behaviour does not reach the degree of severity required to justify removal. A weighty ethical sanction – and it is the case of the reprimand, a sanction of a public nature – can lead to better insight and understanding of a judge’s duties.

At this stage, we are of the view that it is appropriate to give Judge Bradley, for the second time, the chance to reform. [ 106 ] In short, Judge Bradley unduly pressured the parties to settle their dispute and adjourned without cause a hearing over which he should have presided the same day. He also breached his duty of courtesy during the hearing on January 19, 2016 by the tone and nature of his remarks.

His misconduct breached ss. 1 , 6 and 8 of the Judicial Code of Ethics . [45] This conclusion warrants a sanction and, by analogy with s. 279 C.J.A. , dismissal being an overly severe measure, the majority confirms that the minority of the members of the inquiry committee were right in issuing Judge Bradley a reprimand. NICOLE DUVAL HESLER, C.J.Q.

REASONS OF BICH, J.A. [ 107 ] I agree entirely with the reasons of Chief Justice Duval Hesler with respect to the behaviour of Judge Bradley, who, on January 19, 2016, breached his duty of courtesy thereby offending the dignity and honour of his office.

Moreover, through his remarks, he clumsily placed himself in a situation in which he could no longer effectively hear the matter with which he was seized, a matter which he then adjourned by creating a pretext to do so. [ 108 ] I further agree with the Chief Justice’s reasons and conclusion with respect to the sanction and, like her, I believe that it is not appropriate to remove Judge Bradley from his office, as his conduct was not “ so manifestly and totally contrary to the impartiality, integrity and independence of the judiciary that the confidence of individuals appearing before the judge, or of the public in its justice system, would be undermined, rendering the judge incapable of performing the duties of his office.” [46] [ 109 ] On another front, I generally agree with the reasons and conclusions of the Chief Justice with respect to the application for judicial review presented by Judge Bradley – except on one point: I part ways with her on the procedural fairness of the Committee’s inquiry.

In my view, the Committee should have split its inquiry such that the question of whether or not there was misconduct would have been decided before Judge Bradley was required to lead his evidence and make observations with respect to the sanction.

I note immediately that the reservations I have regarding this issue do not affect the outcome of the application for judicial review nor my agreement with the Chief Justice’s other reasons and conclusions. * * [ 110 ] Judge Bradley submits that the Committee failed to respect procedural fairness when it did not warn him of the possibility that the Committee would recommend his removal, the ultimate sanction in the disciplinary process. Indeed, the Committee held a single hearing on the litigant’s complaint.

This hearing, held on October 3, 2016, primarily concerned the occurrence and nature of the breaches of professional ethics alleged against Judge Bradley (breaches which he denied). The question of a sanction was addressed, but only summarily. Counsel assisting the Committee, reiterating his previous (and very brief) written observations, simply indicated that, in a case where, as here, there was a prior breach of professional ethics, a severe reprimand had been considered appropriate.

Counsel for Judge Bradley, after having noted in his written observations that counsel for the Committee had not suggested a sanction other than reprimand, indicated that his client did not deserve such a sanction. The Committee members asked no questions on this topic and gave no indication that removal could be considered in these circumstances. Hence Judge Bradley’s surprise when, upon receiving the Committee’s report, he saw that the majority of the members recommended his removal.

He argues that he was denied the opportunity to make submissions on this matter. [ 111 ] On the basis of Moreau-Bérubé , [47] the Chief Justice concludes that the Committee respected the rules of procedural fairness. [48] With great respect, I do not share this view.

More specifically, and even though the inquiry of the Court of Appeal does redress the grievance raised in that respect by the application for judicial review, [49] I am of the view that the Committee should have split its own inquiry such that, once the allegations against him were decided, Judge Bradley could, with full knowledge of the matter, offer evidence, if necessary, and make relevant and appropriate submissions with respect to the sanction.

Here is why. [ 112 ] First, it should be remembered – and this is a truism – that committees participating in the disciplinary process established by the Courts of Justice Act [50] are bound to respect the overarching requirement of procedural fairness, [51] the content of which, as we know, varies depending on the circumstances, but which must surely be respected by the Conseil , the committee of inquiry provided for at s. 269 and 269.1 C.J.A. and, naturally, the Court of Appeal. [52] [ 113 ] It is not because the committee of inquiry makes “recommendations” only (for reprimand or removal, as the case may be) that it owes no duty of procedural fairness.

First, as indicated above, [53] this recommendation, which directly affects the rights of the judge in question, binds the Conseil which, according to s. 279 C.J.A. , must follow through with the recommendation either by issuing a reprimand or by recommending that the Minister file an application with the Court of Appeal, a prelude to potential removal.

It would be superfluous here to enter into a discussion regarding the procedural requirements imposed by administrative law upon bodies which issue recommendations of this nature, duties that extend naturally to committees of inquiry established under the Courts of Justice Act . Indeed, the law has long acknowledged that a body vested with making inquiries and recommendations on matters important to the litigant must act fairly.

This is especially so when a person’s right to exercise a profession is at stake, a matter which requires “a high standard of justice”. [54] Certainly this is no less true when the profession in question is that of a judge. [ 114 ] Clearly, the committee plays only a preliminary role in matters of removal, as the Supreme Court indicated in Ruffo [55] and in Therrien . [56] This in no way minimizes, however, its duty to act fairly. Indeed, without the committee, there can be no removal and it is the committee’s recommendation which, by way of s. 279 , para. 1 (

b) C.J.A. , triggers the application to be made to the Court of Appeal pursuant to s. 95 C.J.A. and which, from that moment on, affects the right of the judge to exercise his or her function. The Court of Appeal, for its part, is not bound by the committee’s conclusions or recommendation, but the fact remains that the Court cannot be seized without such a recommendation, which is the sine qua non condition of its jurisdiction over the matter.

This highlights the true and considerable importance of the committee’s recommendation on the judge’s rights. [ 115 ] Moreover, when it recommends a reprimand, the committee’s role is in no way preliminary and thus constitutes the exercise of a de facto decision-making power. [ 116 ] Neither should the committee be exempted from respecting the rules of natural justice or procedural fairness simply because, to borrow the words of the Supreme Court in Ruffo , [57] “ the debate that occurs before it does not resemble litigation in an adversarial proceeding; rather, it is intended to be the expression of purely investigative functions marked by an active search for the truth”, [58] “[a]ny idea of prosecution [thus being] structurally excluded” [emphasis in the original]. [59] On this note, a distinction may no doubt be

drawn between judicial ethics and professional discipline but, even if the process is different, the goal is the same: in both cases, theobjective is to censure misconduct in the interest of the public. More specifically, it is a matter of deciding whether there wasmisconduct which, if so, will lead to a reprimand or removal.

The mechanics of judicial ethics are thus disciplinary in nature or, it couldbe said, they are a variation on the theme of discipline, and ss. 260 to 281 C.J.A., which aim at guaranteeing the integrity of the judiciaryand public confidence in the judicial system, have, indeed, a disciplinary vocation.

Therrien speaks, in that respect, of “[t]he disciplinaryprocess for provincial court judges established by the Courts of Justice Act (…).”[60] [117] Finally, the committee put in place by the Conseil pursuant to ss. 269 and 269.1 C.J.A. is free to conduct its inquiry as it seesfit,[61] as ss. 273 and 275 C.J.A. intend, but this freedom does not allow it to contravene the requirements of natural justice andprocedural fairness and escape this framework. [118] It is, however, unnecessary to say more because the Supreme Court has already so decided – first in Ruffo,[62] and then inTherrien.[63] In the latter case, Gonthier J. wrote for the Court: 81 Since Nicholson v.

Haldimand-Norfolk Regional Board of Commissioners of Police, (SCC), [1979] 1 S.C.R. 311,compliance with the rules of natural justice, which was required of the courts, has been extended to all administrative bodies acting understatutory authority, where they are expressed as the rules of procedural fairness (“duty to act fairly”). The fact that a decision isadministrative and affects “the rights, privileges or interests of an individual” is sufficient to trigger the application of the duty offairness: Cardinal v. Director of Kent Institution, (SCC), [1985] 2 S.C.R. 643, at p. 653, and Baker v.

Canada (Ministerof Citizenship and Immigration), (SCC), [1999] 2 S.C.R. 817, at para. 20. The Conseil de la magistrature and itscommittee of inquiry are not exceptions and are therefore subject to this principle.

In Ruffo, supra, following a review of the variousjudicial ethics arrangements in Canada, I found accordingly, at para. 77: In short, each system has its own rules, but they are all based on the same guiding principle: ensuring compliance with judicial ethicsthrough proceedings that comply fully with the duty to act fairly. 82 Essentially, the duty to act fairly has two components: the right to be heard (the audi alteram partem rule) and the right to animpartial hearing (the nemo judex in sua causa rule).

The nature and extent of the duty may vary with the specific context and thevarious fact situations dealt with by the administrative body, as well as the nature of the disputes it must resolve: Syndicat des employésde production du Québec et de l’Acadie v. Canada (Canadian Human Rights Commission), (SCC), [1989] 2 S.C.R. 879,at pp. 895-96, cited with approval in 2747-3174 Québec Inc. v. Quebec (Régie des permis d’alcool), (SCC), [1996] 3S.C.R. 919, at para. 22, and Ruffo, supra, at para. 88.

Thus, in Baker, supra, at paras. 23-28, L’Heureux-Dubé J. specifically pointed outthat several factors have been recognized in the jurisprudence as relevant to determining what is required by the duty of proceduralfairness in a given set of circumstances.

While she did not provide a comprehensive list of such factors, she referred to: (1) the nature ofthe decision being made and the process followed in making it; (2) the nature of the statutory scheme and the terms of the statutepursuant to which the body operates; (3) the importance of the decision to the individual or individuals affected; (4) the legitimateexpectations of the person challenging the decision; and (5) respect for the choices of procedure made by the agency itself, particularlywhen the statute leaves to the decision-maker the ability to choose its own procedures.

It is from this perspective that I will now considerthe allegations of breach of the rules of procedural fairness made by the appellant in the instant case.[64] [Emphasis added] [119] There can thus be no doubt: the committee, like the Conseil de la magistrature itself, must comply with the rules of naturaljustice and procedural fairness, the particular content and requirements of which may vary according to the context.

Was the rule thatJudge Bradley seeks to benefit from here[65] incumbent upon the Committee of Inquiry as part of its duty to act fairly? [120] For the following reasons, I would answer this question in the affirmative. [121] It is true that not all of the procedures and protections of criminal or penal proceedings (guaranteed by the common law and s. 7of the Canadian Charter of Rights and Freedoms) should be imported into the disciplinary process (be it the professional disciplinaryprocess, in general, or the judicial disciplinary process, in particular).[66] Nevertheless, as Rochon J.A. wrote regarding the behaviour ofa doctor in a matter governed by the Professional Code, “[TRANSLATION] however, nothing weighs against applying the relevant[criminal] rules, adapted to the specific context of disciplinary law.”[67] In my view, these remarks are equally applicable to the inquirygoverned by the Courts of Justice Act, and thus nothing weighs against importing certain relevant criminal or penal rules, adapted asnecessary, to this context. [122] If such imports may occasionally be permissible, it appears particularly appropriate with respect to the way in which criminal (orpenal) law addresses questions of guilt and sentencing, the second being neither determined nor even argued before the first has beenestablished.[68] In this tried and tested method we find the expression of a rule of natural justice equally applicable, and for similarreasons, to disciplinary matters of all sorts and equally suitable to and perfectly compatible with an inquiry governed by the Courts ofJustice Act. [123] This way of proceeding, which dissociates the stage of establishing misconduct from that of punishment, also corresponds to thepractice of disciplinary instances of professional orders and other similar bodies, which separate findings of misconduct and sanction, thesecond being determined subsequently to the first, after a separate hearing and giving rise to a distinct decision.

Of course there are caseswhere the hearing on sanction occurs immediately after the hearing on guilt, but not without first determining guilt and, where guilt isestablished, describing the facts found against the individual.

Section 150 of the Professional Code[69] requires this two-step procedure(and imposes it upon the Professions Tribunal in the case envisaged by s. 175, para. 3 of the Professional Code).

Section 98 of the RealEstate Brokerage Act[70] dictates that the real estate brokerage self-regulatory body follow the same two-step method, as does s. 376 ofthe Act respecting the distribution of financial products and services[71] (by way of reference to the Professional Code) with respect todisciplinary committees of the Chambre de la sécurité financière and the Chambre de l’assurance de dommages (note also s. 379 of thesame act). We could also refer to ss. 233 and 234 of the Police Act.[72]

Section 24 of the Municipal Ethics and Good Conduct Act[73]and s. 96 of the Code of Ethics and Conduct of the Members of the National Assembly[74] provide for the same means of proceeding,

and both refer to an investigative procedure functionally similar to the mechanism put in place by the Courts of Justice Act . [ 124 ] Faced with this, one might immediately object by saying that, given that the legislature did not deem it useful to include a similar provision in the Courts of Justice Act , the committee of inquiry is not bound to proceed in this fashion.

In my view, however, this argument is misleading and falls well short of the mark. [ 125 ] Indeed, one might well imagine the reasons why the legislature chose to provide explicitly for this procedural split in the Professional Code , the Real Estate Brokerage Act , the Act respecting the distribution of financial products and services , the Police Act , the Municipal ethics and good conduct Act or even the Code of ethics and conduct of the members of the National Assembly , [75] since professional orders and para-professional bodies and their disciplinary councils or committees (those of the Barreau and the Chambre des notaires excepted), as well as other bodies concerned, do not consist primarily of jurists and must be offered guidance in order to ensure that the rules of natural justice are respected.

In this sense, the legislative provisions cited above serve a pedagogical function by explicitly setting out the requirements of natural justice. [ 126 ] By contrast, we can also easily understand that the legislature – mindful of the constitutional limits of its interventions in judicial discipline and respectful of the specialized jurisdiction and independence of the Conseil , the committee of inquiry and their members – did not deem it necessary to remind them of the principles of procedural fairness.

Rather it was content to enact a general provision, s. 275 C.J.A. , giving the committee free reign in conducting its inquiries, a freedom recognized by the Supreme Court, [76] but which must nonetheless be exercised in conformity with natural justice, a principle that is at the very heart of day to day judicial practice. [ 127 ] Indeed, judicial sensitivity to procedural fairness does not require a legislative reminder, as matters of contempt of court illustrate. We know that art. 61, para. 3 C.C.P. (which essentially reproduces the former art. 54 p.

C.C.P. ) provides that “ [i]f the judgment finds that contempt of court was committed, it must state the sanction imposed and set out the facts on which the finding of contempt is based” – thus, theoretically, at the same time. We also know, however, that the Superior Court voluntarily splits proceedings in such matters, [77] based on the model adopted by the Supreme Court in Carey v. Laiken . [78] Why is there such a practice, which, at first glance, goes against the legislative will?

Given the quasi-penal nature of the proceeding, it would be seemingly impossible to proceed otherwise, in all fairness to the offender. As the Superior Court explained in Droit de la famille — 112094 : […] A two-stage procedure has the following benefits: (

a) it promotes the right to a fair hearing under art. 23 of the Québec Charter of Human Rights and Freedoms by allowing the Court to focus its attention solely on the issue of guilt in the first hearing; and (

b) furthermore, it allows the delinquent found guilty of contempt, the opportunity to prepare representations for sentence, an important consideration given the potential for imprisonment and fine. [79] [ 128 ] There is clearly no question of imprisonment in disciplinary matters (although there may be monetary sanctions), but these remarks are nevertheless applicable, as the advantages of a procedural split remain very real in terms of procedural fairness.

Why should judicial discipline be exempted from this obligation, when reprimand and removal, the only available sanctions, have a similar impact as sanctions imposed in the context of professional discipline, for instance? [ 129 ] One could object that since the Courts of Justice Act provides for only two sanctions (reprimand and removal), the judge in question may easily defend both possibilities as well as present evidence and observations without a separate hearing to be held after the finding of misconduct.

That objection, in my view, is simplistic. [ 130 ] Indeed, it is fundamentally unfair to ask someone who has not yet been declared guilty of any offence whatsoever (criminal, penal, disciplinary or ethical) to make necessarily speculative submissions respecting a sanction that could be imposed in the event that person were to be found guilty. Moreover, guilt alone is insufficient: it is also necessary to know which facts the decision-maker or investigator [80] has found in support of such a conclusion.

Indeed, how can someone faced with multiple allegations of misconduct submit any argument on a possible sanction, based on conjecture about the various scenarios the decision-maker or investigator may adopt on the evidence?

This would not make for effective pleading nor, as such, full answer and defence. [ 131 ] In addition, distinguishing a finding of misconduct from sanction and proceeding in two stages avoids requiring someone who disputes the existence or seriousness of the alleged misconduct to make submissions respecting the sanction which may detract from his or her contestation on the merits or to abstain from presenting evidence or making representations that might compromise such contestation.

By separating the determination of the existence of misconduct from that of sanction, as the case may be, the offender is allowed not only to present evidence and make relevant observations on the sanction (and to make all of them), once misconduct has been established and explained, but also, if appropriate, to express regret or make amends and to reach an enlightened decision in this respect, in due course. Indeed, it is difficult to imagine an alleged offender (including one who is charged with an ethical breach) preventatively repenting while contesting the existence or severity of the alleged misconduct.

Such a gesture would necessarily affect the credibility and relevance of such remarks. Again, this would not make for effective pleading nor full answer and defence, which, in the circumstances, are both components of audi alteram partem and procedural fairness. [ 132 ] This, however, is precisely the opportunity that Judge Bradley was denied in the present case.

Considering that counsel assisting the Committee made no specific recommendation with respect to the sanction (all the while implying a reprimand was the only possibility), Judge Bradley was required to make uninformed representations on the appropriate sanction for allegations of misconduct that he contested, for which he did not yet know if he would be found guilty (so to speak), and all this without knowing exactly for what the Committee would be blaming him in the end (supposing he would be blamed for something).

He was therefore denied the possibility of effectively leading evidence relating to a sanction, or, otherwise, to apologize, affirm his willingness to change, etc.

That there are but only two possible sanctions changes nothing about the foregoing. [ 133 ] In short, it seems to me that the procedural fairness required in disciplinary and ethical matters was violated here: professionals in general, municipal councillors, members of parliament and anyone held in contempt of court have the right to this form of natural justice and I am not persuaded that judges implicated in a disciplinary process should be denied this basic guarantee.

The fact that judges are held to particularly high standards of ethical conduct does not justify minimizing the guarantees of procedural fairness inherent to disciplinary processes.

[ 134 ] In sum, there is no doubt in my mind that: 1. The committee of inquiry must respect its duty to act fairly, as a component of natural justice. 2.

Given the general context of the disciplinary process established by the Courts of Justice Act , the nature of the decision sought (determinative in all cases, even if preliminary in the case of removal) and its importance to the individual in question, whose rights and privileges are affected, procedural fairness required here that Judge Bradley be authorised to make submissions on the sanction after his guilt was determined and that he have an opportunity to submit evidence to this end, if necessary, which would have logically required splitting the inquiry. [ 135 ] Moreover, it should be noted that if the Courts of Justice Act is silent on this point, the Règles de fonctionnement concernant la conduite d’une enquête [81] are not (those provisions were enacted by the Conseil in order to guide the conduct of committees of inquiry “[ TRANSLATION ] despite the rules of procedure or practice that a committee of inquiry (committee) may adopt in conducting an investigation in compliance with s. 275 of the Act ”). [82] Indeed, s. 16 of these rules sets out the following: [ TRANSLATION ]

SECTION 16 The committee’s report must include reasons and address the merits of the complaint and the sanction. Subject to a contrary decision of the committee, the inquiry will not be split in order to hear representations on the sanction. Otherwise, the committee shall inform the parties of its intention to this effect.

If the committee concludes that the complaint is founded, it may only recommend that the judge be reprimanded by the Conseil or dismissed. [83] [Emphasis added] [ 136 ] The second paragraph of this provision is of interest here: the inquiry, we are told, is – subject to a decision to the contrary by the committee – not split in order to hear representations on the sanction.

The committee must otherwise advise the parties of its intentions. [84] In my view, and I say this respectfully, the opposite rule should be set out here: that is, splitting should be required, save for some exceptions. [ 137 ] In any case, what we gather from this provision, as it is stands, is that there may be cases in which it will be appropriate or necessary to split the inquiry in two stages, one concerning misconduct and the other, if necessary, sanction.

Despite the language of s. 16, this is a decision not solely dependent on the will of the committee because it will be compulsory whenever procedural fairness so requires. Indeed, the possibility that a committee split an inquiry cannot be arbitrary, as this would likely give rise to discrepancies – and thus injustices – in the treatment afforded to one judge to that afforded to another. The committee’s decision in that regard must be based on reasonable cause, first among which, it goes without saying, should be procedural fairness. [ 138 ] But does procedural fairness always require a two-step process?

We can perhaps imagine cases where such splitting would not be useful, for example where a judge admits the misconduct alleged by the complaint, such that the committee’s investigation and the proceedings before it will essentially concern the sanction. In a situation such as the one at hand, however, where the allegations are numerous and contested, procedural fairness requires the splitting allowed by s. 16 of the Règles . In my view, the Committee should have proceeded in this way in the case of Judge Bradley. [85] [ 139 ] Of course, I acknowledge that my conclusion

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