2018 FC 865, 2018 FC 865

[2019] 1 F.C.R. 404 T-733-15 T-2110-15 T-423-17 T-409-18 2018 FC 865 The Honourable Michel Girouard ( Applicant ) ( Respondent ) v. The Attorney General of Canada ( Respondent ) ( Respondent ) and The Canadian Judicial Council ( Moving party ) and The Attorney General of Quebec ( Third party ) Indexed as: Girouard v. Canada (Attorney General) Federal Court, Noël J.—Montréal, June 27; Ottawa August 29, 2018.

Judges and Courts — Motions by moving party Canadian Judicial Council (CJC) to strike applications for judicial review filed by applicant— Underlying applications pertaining to recommended removal of applicant, Superior Court of Quebec judge, following inquiry into conduct thereof — While CJC inquiry committee (IC) rejecting all allegations against applicant, applicant’s reliability, credibility questioned — Minister filing complaint with CJC relating to applicant’s lack of credibility — New inquiry committee convened as result of complaint, holding that applicant incapacitated or disabled from due execution of office of judge by reason of misconduct — Applicant filing applications for judicial review with Federal Court — CJC claiming Federal Court not having jurisdiction because CJC not falling within definition of “federal board, commission or other tribunal” as set out in Federal Courts Act , s. 2(1) — CJC of view that source of its jurisdiction Constitution Act, 1867, s. 99 ; inclusion of CJC in definition of federal board, commission or other tribunal having unacceptable effect of subjecting group of superior court judges to Federal Court’s judicial review procedures — CJC also submitting that CJC deemed to be superior court pursuant to Judges Act, s. 63(4) — Whether: CJC, IC federal boards, commissions or other tribunals as defined by Federal Courts Act; Judges Act, ss. 63(4)(a),(

b) granting CJC, IC status of superior court; reports, findings of CJC, IC subject to judicial review by Federal Court — No connection, reference or comment in legislation stating that CJC not federal board, commission or other tribunal — CJC, not members (i.e.

Judges) thereof, reporting to Minister — CJC’s power of inquiry same as in Inquiries Act — CJC, members constituting “federal board, commission or other tribunal” like commissioner appointed under Inquiries Act — Role of judges sitting on CJC administrative in nature — Federal Courts Act applying herein — CJC not falling within Federal Courts Act, s. 2 exceptions — Definition of “federal board, commission or other tribunal” broad, including federal institutions, agencies not excluded by Federal Courts Act, s. 28 — CJC’s power investigative in nature — Parliament intending for Federal Court to review reports, recommendations of CJC — Judges Act not codification of constitutional power establishing judiciary in accordance with principle of separation of powers — Principle of judicial independence not placing CJC beyond reach of judicial review — Permanent separation of powers of judiciary, executive unaffected — As to whether CJC true superior court, had intention been to give CJC, IC status of superior court, this would have been done expressly through Constitution Act, 1867, s. 101 — Reviewing judicial conduct inquisitorial in nature — CJC, IC possessing only statutory jurisdiction enabling them to inquire into conduct of judge in course of investigative process — Experience of CJC members not making CJC superior court — Phrase “shall be deemed to be a superior court” in Judges Act, s. 63(4) giving judges needed judicial protection, not turning CJC, IC into actual superior court — Finally, CJC report, recommendation, essential to removal process, having major impact on rights, interests of judge — Therefore subject to judicial review — Motions dismissed.

Federal Court Jurisdiction — Canadian Judicial Council (CJC) moving to strike applications for judicial review filed by applicant — Underlying applications pertaining to recommended removal of applicant, Superior Court of Quebec judge, following inquiry into conduct thereof — CJC claiming Federal Court not having jurisdiction because CJC not falling within definition of “federal board, commission or other tribunal” as set out in Federal Courts Act , s. 2(1) — CJC of view that source of its jurisdiction Constitution Act, 1867, s. 99 ; inclusion of CJC in definition of federal board, commission or other tribunal having unacceptable effect of subjecting group of superior court judges to Federal Court’s judicial review procedures — CJC, members constituting “federal board, commission or other tribunal” — Role of judges sitting on CJC administrative in nature — CJC not falling within Federal Courts Act, s. 2 exceptions — Definition of “federal board, commission or other tribunal” broad, including federal institutions, agencies not excluded by Federal Courts Act, s. 28 — CJC’s power investigative in nature — Parliament intending for Federal Court to review reports, recommendations of CJC — Judges Act not codification of constitutional power establishing judiciary in accordance with principle of separation of powers — Principle of judicial independence not placing CJC beyond reach of judicial review.

These were motions by the moving party the Canadian Judicial Council (CJC) to strike the applications for judicial review filed by the applicant. The subjects of the underlying applications for judicial review were a report submitted by the CJC following an inquiry into the conduct of the applicant recommending his removal to the Minister of Justice (Minister), as well as an initial report by an inquiry committee (IC) of the CJC and other decisions made in the course of inquiries into the applicant’s conduct.

The applicant, a Justice of the Superior Court of Quebec, was identified by a drug trafficker turned informant as a former client. A few weeks before his appointment to the judiciary, the applicant was allegedly captured on video in the process of purchasing an illicit substance. The CJC established a review committee to consider the complaint and have a preliminary inquiry conducted by outside counsel. The CJC’s First Inquiry Committee rejected all of the allegations against the applicant, being unable to establish that the video was proof of a transaction involving an illicit substance.

However, a majority of the members of that committee questioned the reliability and credibility of the version of the facts related by the applicant. The report was submitted to the Minister, who later filed a complaint with the CJC related to the applicant’s lack of credibility during the inquiry. This complaint triggered a mandatory inquiry pursuant to subsection 63(1) of the Judges Act , and a new inquiry committee (Second Inquiry Committee) was convened.

The Second Inquiry Committee held that the applicant had become incapacitated or disabled from the due execution of the office of judge by reason of the misconduct of which he had been found guilty during the First Inquiry Committee, namely for failing to cooperate and testify with transparency, forthrightness and integrity, and for attempting to mislead the First Inquiry Committee. The CJC adopted those findings to the effect that the applicant’s misconduct had undermined the integrity of the judicial system and struck at the heart of the public’s confidence in the judiciary.

The applicant filed applications for judicial review with the Federal Court seeking the setting aside of the decisions of the First or Second Inquiry Committee, the CJC and the Minister. The CJC claimed that it was beyond the jurisdiction of the Federal Court in matters of judicial review because, in its view, it does not fall within the definition of “federal board, commission or other tribunal” as set out in subsection 2(1) of the Federal Courts Act .

The CJC was of the view that the source of its jurisdiction with respect to its role as overseer of the conduct of judges and judicial discipline is not a statute adopted by the Parliament but rather

section 99 of the Constitution Act, 1867 . Moreover, the CJC stated that it is made up of persons appointed under

section 96 of the Constitution Act, 1867 . In its view, its inclusion in the definition of federal board, commission or other tribunal would have the unacceptable effect of subjecting a group of superior court judges to the Federal Court’s judicial review procedures; the CJC alleged that this would be contrary to the exception set out in

section 2 of the Federal Courts Act . The CJC also submitted that the deeming provision in subsection 63(4) of the Judges Act creates a legal fiction that the CJC is deemed to be a superior court in making inquiries into the conduct of judges. At issue was whether the CJC and the IC are federal boards, commissions or other tribunals as defined by the Federal Courts Act ; whether paragraphs 63(4) (

a) and (

b) of the Judges Act grant the CJC and the IC the status of a superior court, thereby placing them beyond the reach of judicial review; and whether the reports and findings of the CJC and the IC are subject to judicial review by the Federal Court. Held , the motions should be dismissed. Nowhere in the legislation is there a connection, reference or comment stating that the CJC is not a federal board, commission or other tribunal because it is partially constituted of a group of individuals (i.e. chief justices) appointed pursuant to

section 96 of the Constitution Act, 1867 . It is the CJC, as a body or institution, that reports to the Minister; the judges are simply members of that institution. There is no basis on which to present the CJC’s power of inquiry as an attribute of the powers of superior court judges appointed under the Constitution Act, 1867 . On the contrary, the CJC’s power of inquiry is the same as the one set out in the Inquiries Act , R.S.C., 1985, c. I-11. Just like a commissioner appointed under the Inquiries Act , the CJC and its members constitute a “federal board, commission or other tribunal”.

It is not in their capacity as judges that the members of the CJC sit. It is the CJC’s enabling act that authorizes it to submit a report and recommendations to the Minister. Judges sit on the CJC in their capacity as chief justices, a role that is administrative in nature, rather than as judges drawing their powers from

section 96 of the Constitution Act, 1867 . Chief justices are given their judicial ethics role through provincial and territorial legislation rather than through constitutional texts. In this case, it is not the chief justices who investigate, but rather the CJC and its IC as a body. The identity of the CJC is separate from that of its components. The Federal Courts Act applied in this case. Had Parliament wished to exclude the CJC from the definition of a federal board, commission or other tribunal, it would have done so, as it did with the Tax Court of Canada. The CJC does not fall within the exceptions set out in

section 2 of the Federal Courts Act . The definition of “federal board, commission or other tribunal” is broad enough to include all of the federal institutions and agencies not excluded by

section 28 of the Federal Courts Act . To fall within the definition of “federal board, commission or other tribunal”, a body need only exercise or purport to exercise jurisdiction or powers conferred under an Act of Parliament or under an order made pursuant to a Crown prerogative. The power that the CJC exercises over the conduct of judges and certain public servants holding office during good behaviour is investigative in nature; it is a power of inquiry. The source of this investigative power can be found in paragraphs 60(2) (

c) and (d), and subsections 63(1) and (4) of the Judges Act . Parliament intended for a Federal Court judge to review the reports and recommendations of the CJC. Aside from the Supreme Court, there is no judicial or quasi-judicial institution that has the final word without the possibility of an appeal or some other remedy. If Parliament had intended to make an inquiry committee a superior court, it would not have listed the powers of an inquiry committee. An inquiry committee does not adjudicate disputes between parties. It does not render a legally enforceable decision. It merely carries out an investigation.

The Judges Act is not the codification of a constitutional power establishing the judiciary in accordance with the principle of the separation of powers. The principle of judicial independence, itself rooted in the Constitution, does not have the effect of placing the CJC beyond the reach of judicial review by other members of the judiciary, that is, the Federal Court. The possibility of review by a judge only increases judicial independence by preventing interference from the other branches of government.

Making judicial review available as a remedy to the judge who is the subject of an inquiry is not incompatible with the principle of judicial independence. By subjecting the CJC’s report and recommendation to judicial review by the Federal Court, the permanent separation of the powers of the judiciary and the executive remains unaffected, as the issue remains squarely with the judiciary. If the intention had been to give the CJC and the IC the status of a superior court, this would have been done expressly by creating this status through

section 101 of the Constitution Act, 1867 . The process for reviewing judicial conduct is inquisitorial in nature and involves powers similar to those of a commission of inquiry under the Inquiries Act . The CJC and the IC possess only a statutory jurisdiction enabling them to inquire into the conduct of a judge in the course of an investigative process, with the judge who is subject to the inquiry having the opportunity to defend him- or herself through written submissions. The experience of the CJC members, mainly chief justices, does not make the CJC a superior court.

The current version of the Judges Act was amended by Bill C-243. The purpose of inserting the phrase “shall be deemed to be a superior court” in section 63(4) of the Judges Act was “[t]o give the judges ... the usual judicial protection that they would need”. To claim that it was added for the purpose of turning the CJC and the IC into an actual superior court ignores what is made apparent by parliamentary debates. The objective was simply to ensure that the investigative body would protect judges.

If the intent had been to turn this investigative body into a superior court, Parliament would have said so explicitly.

The amendment in subsection 63(4) was made to grant immunity to the investigating judges for the decisions they render and to protectthe judges subject to inquiry with respect to the statements made in the course of the proceedings. The report to the Minister with its conclusions and recommendations regarding removal amounts to “capital punishment”. A report thatcan have such a devastating impact on a judge’s career is subject to judicial review.

The CJC itself explained in a 2014 report that afinding issued by it that a judge has become incapacitated or disabled from the due execution of his or her office amounts to “capitalpunishment” for that judge’s career. It was also stated therein that the reputational consequences of an inquiry report might be“considerable”, therefore requiring a high degree of procedural fairness. The final decision regarding the removal of a judge rests withParliament. However, this is not possible without having the CJC submit its inquiry report and its recommendation.

Without the inquiryby the CJC and its IC, the Minister may not ask Parliament to remove a judge. The report and its conclusions therefore have a majorimpact on the rights and interests of the judge. The fact that a decision takes the form of a “recommendation” does not make itunreviewable. Taking into account the principle of security of tenure, the judicial conduct review process granted to the CJC by statute,and the importance of the report and recommendation to the Minister, Cabinet and Parliament, one can only conclude that the report andrecommendation are essential to the judicial removal process.

Judicial review under

section 18.1 of the Federal Courts Act is not strictlylimited to decisions or orders. It also applies to the reports of federal boards, commissions or other tribunals. STATUTES AND REGULATIONS CITED Act of Settlement, 1700 (U.K.), 12 & 13 Will. III, c. 2, s. III. Act respecting the Judges of Provincial Courts, R.S.C. 1886, c. 138.

An Act to amend the Judges Act, R.S.C. 1970 (2nd Supp.), c. 16, s. 10. Bill C-243,

An Act to amend the Judges Act and the Financial Administration Act, 28th Parl., 3rd Sess., 1971, s. 31. Canadian Judicial Council Inquiries and Investigations By-laws, 2015, SOR/2015-203, ss. 2–13. Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982, 1982, c. 11 (U.K.),

Schedule to the Constitution Act,1982, Item 1) [R.S.C., 1985, Appendix II, No. 5], 96, 99, 101. Courts of Justice Act, CQLR, c. T-16, ss. 6, 22. Department of Justice Act, R.S.C., 1985, c. J-2. Federal Courts Act, R.S.C., 1985, c. F-7, ss. 2 “federal board, commission or other tribunal”, 3, 4, 5, 5.1, 10(1.1), 18, 18.1, 28. Federal Courts Rules, SOR/98-106, rr. 221, 317, 318(2). Indian Act, R.S.C. 1970, c. I-6, s. 9(4). Inquiries Act, R.S.C. 1952, c. 154. Inquiries Act, R.S.C., 1985, c. I-11, ss. 4, 5.

Interpretation Act, R.S.C., 1985, c. I-21, s. 35(1) “superior court”. Judges Act, R.S.C. 1970, c. J-1, s. 30(1). Judges Act, R.S.C., 1985, c. J-1, ss. 9–24, 26, 42–48, 59, 60, 62, 63–65, 69–71, 72, 73, 74. Revised Statutes of Canada, 1985 Act, R.S.C., 1985 (3rd Supp.), c. 40, s. 4. Tax Court of Canada Act, R.S.C., 1985, c. T-2, s. 3. CASES CITED APPLIED: Douglas v. Canada (Attorney General), 2014 FC 299, [2015] 2 F.C.R. 911; Ruffo v. Conseil de la magistrature, (SCC),[1995] 4 S.C.R. 267, (1995), 130 D.L.R. (4th) 1; Anisman v.

Canada (Border Services Agency), 2010 FCA 52, 400 N.R. 137; Rizzo &Rizzo Shoes Ltd (Re), (SCC), [1998] 1 S.C.R. 27, (1998), 36 O.R. (3d) 418; Bell ExpressVu Limited Partnership v. Rex,2002 SCC 42, [2002] 2 S.C.R. 559; Thomson v. Canada (Deputy Minister of Agriculture), (SCC), [1992] 1 S.C.R. 385,(1992), 89 D.L.R. (4th) 218; Morneault v. Canada (Attorney General), (FCA), [2001] 1 F.C. 30, (2000), 189 D.L.R.(4th) 96 (C.A.). DISTINGUISHED: Minister of Indian Affairs and Northern Development v. Ranville et al., (SCC), [1982] 2 S.C.R. 518, (1982), 139D.L.R. (3d) 1. CONSIDERED: Canada (Citizenship and Immigration) v.

Tennant, 2018 FCA 132; Girouard v. Canada (Attorney General), 2017 FC 449; Taylor v.Canada (Attorney General), 2001 FCT 1247, [2002] 3 F.C. 91, affd 2003 FCA 55, [2003] 3 F.C. 3; Gratton v. Canadian Judicial

Council, (FC), [1994] 2 F.C. 769, (1994), 115 D.L.R. (4th) 81 (T.D.); Reference re Remuneration of Judges of theProvincial Court of Prince Edward Island; Reference re Independence and Impartiality of Judges of the Provincial Court of PrinceEdward Island, (SCC), [1997] 3 S.C.R. 3, (1997), 150 D.L.R. (4th) 577; Reference re Secession of Quebec, (SCC), [1998] 2 S.C.R. 217, (1998), 161 D.L.R. (4th) 385; Charkaoui v.

Canada (Citizenship and Immigration), 2007 SCC9, [2007] 1 S.C.R. 350; Application under s. 83.28 of the Criminal Code (Re), 2004 SCC 42, [2004] 2 S.C.R. 248; Pasiechnyk v.Saskatchewan (Workers’ Compensation Board), (SCC), [1997] 2 S.C.R. 890, (1997), 149 D.L.R. (4th) 577; Noël v.Société d’énergie de la Baie James, 2001 SCC 39, [2001] 2 S.C.R. 207; MacMillan Bloedel Ltd. v. Simpson, (SCC),[1995] 4 S.C.R. 725, (1995), 130 D.L.R. (4th) 385; Canada (Human Rights Commission) v.

Canadian Liberty Net, (SCC), [1998] 1 S.C.R. 626, (1998), 157 D.L.R. (4th) 385; Re Residential Tenancies Act, 1979, (SCC), [1981] 1 S.C.R.714, 123 D.L.R. (3d) 554; X (Re), 2014 FCA 249, [2015] 1 F.C.R. 684; Reference re Supreme Court Act, ss. 5 and 6, 2014 SCC 21,[2014] 1 S.C.R. 433; Roncarelli v. Duplessis, (SCC), [1959] S.C.R. 121, (1959), 16 D.L.R. (2d) 689; Gagliano v.Canada (Commission of Inquiry into the Sponsorship Program and Advertising Activities), 2008 FC 981, 88 Admin. L.R. (4th) 157, affd2011 FCA 217, 336 D.L.R. (4th) 216. REFERRED TO: Tsleil-Waututh Nation v.

Canada (Attorney General), 2017 FCA 128; Crowe v. Canada (Attorney General), 2008 FCA 298, 382 N.R.50; Borowski v. Canada (Attorney General), (SCC), [1989] 1 S.C.R. 342, (1989), 57 D.L.R. (4th) 231; Gagliano v.Gomery, 2011 FCA 217, 336 D.L.R. (4th) 216; Canada (Attorney General) v. TeleZone Inc., 2010 SCC 62, [2010] 3 S.C.R. 585;Howarth v. National Parole Board, (SCC), [1976] 1 S.C.R. 453, (1974), 50 D.L.R. (3d) 349; Beno v.

Canada(Commissioner and Chairperson, Commission of Inquiry into the Deployment of Canadian Forces to Somalia), (FC),[1997] 1 F.C. 911, (1997), 144 D.L.R. (4th) 493 (T.D.), revd (FCA), [1997] 2 F.C. 527, (1997), 146 D.L.R. (4th) 708(C.A.); Cosgrove v. Canadian Judicial Council, 2005 CF 1454, [2006] 1 F.C.R. 327, revd 2007 FCA 103, [2007] 4 F.C.R. 714;Cosgrove v. Canada (Attorney General), 2008 FC 941, 331 F.T.R. 271; Akladyous c. Canadian Judicial Council, 2008 FC 50, 325F.T.R. 240; Slansky v.

Canada (Attorney General), 2011 FC 1467, [2013] 3 F.C.R. 558, affd 2013 FCA 199, [2015] 1 F.C.R. 81; Ell v.Alberta, 2003 SCC 35, [2003] 1 S.C.R. 857; Valente v. The Queen, (SCC), [1985] 2 S.C.R. 673, (1985), 52 O.R. (2d)779; R. v. Lippé, (SCC), [1991] 2 S.C.R. 114, (1991), 64 C.C.C. (3d) 513; Crevier v. Attorney General of Quebec et al., (SCC), [1981] 2 S.C.R. 220, (1981), 127 D.L.R. (3d) 1; Highwood Congregation of Jehovah’s Witnesses (JudicialCommittee) v. Wall, 2018 SCC 26, [2018] 1 S.C.R. 750; British Columbia v. Philip Morris International, Inc., 2018 SCC 36, [2018] 2S.C.R. 595; Landreville v.

The Queen, (FC), [1977] 2 F.C. 726, (1977), 75 D.L.R. (3d) 380 (T.D.); Landreville v. TheQueen, (FC), [1981] 1 F.C. 15, (1981), 111 D.L.R. (3d) 36 (T.D.); Corbett v. Canada, (FCA),[1997] 1 F.C. 386, [1997] 1 C.T.C. 2 (C.A.); Imperial Oil Ltd. v. Canada; Inco Ltd. v. Canada, 2006 SCC 46, [2006] 2 S.C.R. 447; R. v.Meltzer, (SCC), [1989] 1 S.C.R. 1764, (1989), 49 C.C.C. (3d) 453; Chrétien v. Canada (Ex-Commissioner, Commissionof Inquiry into the Sponsorship Program and Advertising Activities), 2008 FC 802, [2009] 2 F.C.R. 417, affd 2010 FCA 283, 10 Admin.L.R. (5th) 295; Pelletier v.

Canada (Attorney General), 2008 FC 803, 84 Admin. L.R. (4th) 1, affd 2010 FCA 189. AUTHORS CITED Bescherelle: L’orthographe pour tous, Montréal: Éditions Hurtubise, 1998. Birks, Michael. Gentlemen of the Law, London: Stevens & Sons, 1960. Canadian Judicial Council. Alternative Models of Court Administration, Ottawa: Canadian Judicial Council, 2006. Canadian Judicial Council. Decision of Inquiry Committee Established by the Canadian Judicial Council to Conduct a Public InquiryConcerning Mr. Justice Robert Flahiff, Montréal: Canadian Judicial Council, April 9, 1999. Canadian Judicial Council.

Decision of the Inquiry Committee under Subsections 63(2) and 63(3) of the Judges Act in Relation toMr. Justice F.L. Gratton of the Ontario Court of Justice (General Division), Ottawa: Canadian Judicial Council, January 26, 1994. Canadian Judicial Council. Inquiry Committee regarding the Honourable Michel Girouard: Report to the Minister of Justice, Ottawa:Canadian Judicial Council, February 20, 2018. Canadian Judicial Council. Inquiry into the Conduct of the Honourable Robin Camp: Report to the Minister of Justice, Ottawa: CanadianJudicial Council, March 8, 2017. Canadian Judicial Council.

Review of the Judicial Conduct Process of the Canadian Judicial Council: Background Paper, March 2014. Côté, Pierre-André, Stéphane Beaulac and Mathieu Devinat. The

Interpretation of Legislation in Canada, 4th ed. Toronto: Carswell,2011. House of Commons Debates, 28th Parl., 2nd Sess., Vol. 5 (March 25, 1970). House of Commons Debates, 28th Parl., 3rd Sess., Vol. 5 (26 April 1971). House of Commons Debates, 28th Parl., 3rd Sess., Vol. 5 (3 May 1971). House of Commons Debates, 28th Parl., 3rd Sess., Vol. 7 (14 June 1971). Huppé, Luc. Le régime juridique du pouvoir judiciaire, Montréal: Wilson & Lafleur, 2000. Jacob, I. H. “The Inherent Jurisdiction of the Court” (1970), 23 Current Legal Problems 23. Kaplan, William. Bad Judgment: The Case of Mr. Justice Leo A. Landreville, Toronto: University of Toronto Press, 1996.

Larousse Chambers, Grand dictionnaire français-anglais / anglais-français , Paris: Larousse, 2003) , “deem”. Nouveau Petit Robert de la langue française 2009 , Paris: Le Robert, 2008, “ réputer ”. Parliament. House of Commons. Standing Committee on Justice and Legal Affairs, Minutes of Proceedings and Evidence , 28th Parl., 3rd Sess. (June 16, 1971). Schmitz, Cristin. “Chief Justice Wagner calls for judicial discipline reforms as Ottawa drags heels on removing sidelined judge”, The Lawyer’s Daily (June 22, 2018), online: www.thelawyersdaily.ca/articles/6806.

Schmitz, Cristin. “Ottawa delays removing, replacing sidelined judge as taxpayers continue to foot massive litigation costs”, The Lawyer’s Daily (May 25, 2018), online: www.thelawyersdaily.ca/articles/6592. Sullivan, Ruth. Sullivan on the Construction of Statutes , 6th ed. Markham, Ont.: LexisNexis, 2014. MOTIONS by the Canadian Judicial Council to strike applications for judicial review filed by the applicant pertaining to the recommended removal of the applicant as a judge following an inquiry into his conduct. Motions dismissed. APPEARANCES Gérald R.

Tremblay , Louis Masson and Guillaume Renauld for applicant (respondent). Claude Joyal, Q.C. and Pascale-Catherine Guay for respondent (respondent). Ronald F. Caza , Gabriel Poliquin and Alyssa Tomkins for moving party. SOLICITORS OF RECORD McCarthy Tétrault LLP , Montréal, and Joli-Cœur Lacasse, Avocats , Québec, for applicant (respondent). Deputy Attorney General of Canada for respondent (respondent). CazaSaikaley , Ottawa, for moving party. Bernard, Roy (Justice-Québec) , Montréal, for third party . The following are the reasons for order and order rendered by Noël J.: OUTLINE I. Overview 1 II.

Preliminary Remarks 5 III. Facts 8 IV. Background 18 V. Parties’ Submissions 27 A. Are the CJC and the IC federal boards, commissions or other tribunals as defined by the FCA ? 28 B. Do paragraphs 63(4)(

a) and (

b) of the JA grant the CJC and the IC the status of a superior court, thereby placing them beyond the reach of judicial review? 35

(1) Legislative history and the intent of Parliament 39

(2) Is the CJC the body of appeal for the reports and conclusions of the IC? 43 C. Are the reports and conclusions of the CJC and the IC subject to judicial review by the Federal Court? 47 VI. Douglas (2014) 49 VII. Legislative Provisions 54 VIII. Questions of Law 58 IX. Analysis 60 A. Are the CJC and the IC federal boards, commissions or other tribunals as defined by the FCA ? 61

(1) Overview of the relevant legislation 62

(2) Does the CJC’s membership exclude it from the definition of a federal board, commission or other tribunal? 79

(3) What is the test for determining whether a body is a federal board, commission or other tribunal, and do the CJC and the IC satisfy this test? 93

(4) Does the CJC have a source of constitutional power codified by an enactment of Parliament? 105

B. Do paragraphs 63(4)(

a) and (

b) of the JA grant the CJC and the IC the status of a superior court, thereby placing them beyond the reach of judicial review? 112

(1) The judiciary and courts of superior jurisdiction 114

(2) Analysis of sections dealing with “inquiries concerning judges” in the JA 125 (

a) Principles of

interpretation 126 (

b) Legislative history and the intent of Parliament 130 (

c) Literal

interpretation of the sections at issue 146 (

d) Does the power to investigate judges include an internal appeal mechanism for the reports and conclusions of the IC that is analogous to an appeal de novo ? 157 C. Are the CJC’s and the IC’s reports and conclusions subject to the judicial review power of the Federal Court? 165 X. Comments and Conclusion 173 A. Comments 173 B. Conclusion 184 I. OVERVIEW [ 1 ] Pursuant to rule 221 of the Federal Courts Rules , SOR/98-106 (Rules), before this Court there are motions to strike the applications for judicial review filed in accordance with

section 18.1 of the Federal Courts Act , R.S.C., 1985, c. F-7 (FCA), by the applicant, the Honourable Justice Michel Girouard of the Superior Court of Quebec. The subjects of the underlying applications for judicial review are a report submitted by the Canadian Judicial Council (CJC) following an inquiry into the conduct of Justice Girouard recommending his removal to the Minister of Justice Canada (Minister), as well as an initial report by an inquiry committee (IC) of the CJC and other decisions made in the course of inquiries into Justice Girouard’s conduct.

The moving party in this case, the CJC, submits that the Court should allow the motions to strike the applications for judicial review on the grounds that the Federal Court has no jurisdiction to grant a remedy against the CJC or its IC. According to the CJC, it and its constituent bodies do not constitute a “federal board, commission or other tribunal” subject to review under

section 2 of the FCA. The CJC also alleges that the Judges Act , R.S.C., 1985, c. J-1 (JA), grants the CJC the status of a superior court. [ 2 ] For the reasons that follow, I am of the view that the motions to strike must be dismissed. The CJC, of which the IC is a part, is in fact a “federal board, commission or other tribunal” within the meaning of the definition contained in

section 2 of the FCA . This means that the CJC’s reports with conclusions and its recommendations, as well as the decisions made in the course of an inquiry by the IC, are subject to the judicial review mechanisms set out in

section 18.1 of the FCA. Moreover, paragraphs 63(4)(

a) and (

b) of the JA do not grant the CJC the status of a superior court, nor do they exempt the CJC from judicial review by the Federal Court.

It should be noted that, even though the CJC’s report was simply a recommendation to the Minister that the judge be removed, I still consider it reviewable by the Federal Court. [ 3 ] Finally, for the purpose of this case, I would like to point out some notable absences, including the Canadian Superior Court Judges Association, a representative of appointees who hold office during good behaviour (the record does not reveal whether such appointments still exist), and the complainant.

I would have appreciated hearing their respective points of view on the issue at hand because the arguments raised have significant consequences for them. [ 4 ] At the start of these judicial review proceedings, the Honourable Chief Justice Paul Crampton asked me to take charge of them given his involvement as a member of the first IC into Justice Girouard’s conduct. Furthermore, I have been acting as case manager from the beginning, handling all of the procedural issues relating to the orderly conduct of the files.

I also decided, and informed the parties, that the applications for judicial review on the merits would be considered by the Honourable Justice Paul Rouleau of the Court of Appeal for Ontario, appointed as a deputy judge under subsection 10(1.1) of the FCA . II. PRELIMINARY REMARKS [ 5 ] I will begin by addressing the CJC’s rather peculiar argument that it and its IC, constituted to inquire into the judge’s conduct, are deemed to be a superior court, thus placing them [translation] “beyond judicial review”.

I also note that the CJC claims to have an [translation] “internal appeal mechanism that safeguards procedural fairness even more robustly than final appeals to the Supreme Court, made up of nine judges; the Council is made up of at least seventeen judges, all chief justices or associate chief justices possessing indisputable expertise in matters concerning the administration of justice” (CJC’s memorandum, at paragraph 102).

According to this theory, the CJC considers itself not only the investigator into judicial conduct, but also the body with the jurisdiction to hear the appeal of its own report, making it both the initial and the final authority. According to the arguments submitted by the CJC, its report and recommendation regarding Justice Girouard are final: it is not open to Justice Girouard to appeal or to apply for judicial review. This would also mean that the CJC’s report and recommendation are immune from any attempt to remedy a breach of procedural fairness.

It should be noted that the most recent report on Justice Girouard’s conduct (dated February 2018 [Canadian Judicial Council, Inquiry Committee regarding the Honourable Michel Girouard: Report to the Minister of Justice ]) includes a dissent by three chief justices who state that the majority decision contains a breach of procedural fairness (see paragraph 16[of CIC’s memorandum]). [ 6 ] I cannot agree with the CJC’s position. It is undeniable that a report recommending the removal of a judge has a serious impact on that judge, professionally and personally, and on his or her family.

It is inconceivable that a single body, with no independent supervision and beyond the reach of all judicial review, may decide a person’s fate on its own. Of course it is true that, in our society, the position of judge requires exemplary conduct, but is this a reason to render it subject to a single investigative body and to eliminate any possibility of recourse against the decision resulting from the inquiry? In my opinion, it is not. However prestigious and experienced a body may be, it is not immune from human error and may commit a major violation of the principles of procedural fairness that only an

external tribunal, such as the Federal Court in this case, can remedy. As Justice Stratas of the Federal Court of Appeal recently recalled, such absolute power has no place within our democracy: … In our system of governance, all holders of public power, even the most powerful of them—the Governor-General, the Prime Minister, Ministers, the Cabinet, Chief Justices and puisne judges, Deputy Ministers, and so on—must obey the law ... . From this, just as night follows day, two corollaries must follow.

First, there must be an umpire who can meaningfully assess whether the law has been obeyed and grant appropriate relief. Second, both the umpire and the assessment must be fully independent from the body being reviewed. ( Canada (Citizenship and Immigration) v. Tennant , 2018 FCA 132 , at paragraph 23 ; see also Tsleil-Waututh Nation v.

Canada (Attorney General) , 2017 FCA 128 , at paragraph 78 .) [ 7 ] Therefore, as per the fundamental principles of our democracy, all those who exercise public power, regardless of their status or the importance of their titles, must be subject to independent review and held accountable as appropriate. This also goes for the CJC and the chief justices who make up its membership. III. FACTS [ 8 ] Justice Girouard was appointed to the Superior Court of Quebec in 2010 and sat in the districts of Abitibi, Rouyn-Noranda and Témiscamingue. He has been suspended with pay since January 2013.

For over five years now (the first complaint was filed in November 2012, and the CJC only rendered its report on the second complaint in February 2018), while the case has been winding its way through two full inquiries, two reports to the Minister (the first of which was submitted in April 2016) and several proceedings before the courts, the judicial complement in these districts has been considerably reduced. [ 9 ] The event triggering this saga occurred in the fall of 2012, when the Director of Criminal and Penal Prosecutions informed the then Chief Justice of the Superior Court of Quebec, the Honourable François Rolland, that the applicant had been identified by a drug trafficker turned informant as a former client.

In September 2010, a few weeks before his appointment to the judiciary, Justice Girouard was allegedly captured on video in the process of purchasing an illicit substance. Later, on November 30, 2012, Chief Justice Rolland asked the CJC to review Justice Girouard’s conduct. [ 10 ] In October 2013, the CJC first established a review committee to consider the complaint and have a preliminary inquiry conducted by outside counsel.

It was in February 2014 that the CJC constituted an inquiry committee (First Inquiry Committee) in accordance with subsection 63(4) of the JA to conduct a full inquiry into the complaint received. [ 11 ] The First Inquiry Committee rejected all of the allegations against Justice Girouard, being unable to establish, on a balance of probabilities, that the video was proof of a transaction involving an illicit substance. However, a majority of the members of the First Inquiry Committee questioned the reliability and credibility of the version of the facts related by Justice Girouard.

The majority had identified several contradictions, inconsistencies and implausibilities in the evidence regarding the transaction captured on video. [ 12 ] The CJC accepted the conclusion of the First Inquiry Committee regarding the video. However, the CJC did not take into account the First Inquiry Committee’s observations about Justice Girouard’s credibility. The report was submitted to the Minister in April 2016.

More than three years had elapsed since the initial complaint had been filed. [ 13 ] In June 2016, the Minister and the Minister of Justice of Quebec filed a joint complaint with the CJC regarding Justice Girouard’s conduct in the course of this disciplinary proceeding. More specifically, this new complaint related to Justice Girouard’s credibility, or lack thereof, during the inquiry.

This complaint also triggered a mandatory inquiry pursuant to subsection 63(1) of the JA , and a new inquiry committee (Second Inquiry Committee) was convened. [ 14 ] The Second Inquiry Committee examined the transcript of the hearing before the First Inquiry Committee and heard new testimony over the course of eight days of hearings.

The Second Inquiry Committee concluded it appropriate to accept the findings of the majority of the First Inquiry Committee only if it was shown that they were both free from error and reasonable, and only to the extent they withstood its own assessment of the evidence deemed reliable. [ 15 ] In its report dated November 6, 2017, the Second Inquiry Committee held that Justice Girouard had become incapacitated or disabled from the due execution of the office of judge by reason of the misconduct of which he had been found guilty during the First Inquiry Committee, namely:

(1) He failed to cooperate with transparency and forthrightness in the First Inquiry Committee’s inquiry.

(2) He failed to testify with transparency and integrity during the First Inquiry Committee’s inquiry.

(3) He attempted to mislead the First Inquiry Committee by concealing the truth. [ 16 ] In its report to the Minister dated February 20, 2018, the CJC adopted the findings of the Second Inquiry Committee to the effect that the judge’s misconduct had undermined the integrity of the judicial system and struck at the heart of the public’s confidence in the judiciary. On this basis, it concluded that Justice Girouard had become incapacitated and disabled from the due execution of the office of judge. However, three dissenting members opposed Justice Girouard’s removal.

They found that his right to a fair hearing had not been respected, as certain unilingual Anglophone members of the CJC had allegedly been unable to evaluate the entire record, which included documents available in French only. [ 17 ] One fact jumps out: for the second report, the inquiry lasted more than 20 months. In total, the CJC spent more than five years investigating Justice Girouard, from November 2012 to February 2018. IV. BACKGROUND

[ 18 ] Some may claim that the above-mentioned delays can be partly explained by the fact that Justice Girouard filed no fewer than 24 applications for judicial review with the Federal Court seeking, among other things, the setting aside of the decisions of the First or Second Inquiry Committee, the CJC and the Minister. However, it should be noted that the judicial proceedings resulting in an order did not interrupt the CJC inquiries. [ 19 ] On May 4, 2017, in Girouard v.

Canada (Attorney General) , 2017 FC 449 ( Girouard ), this Court refused to allow the application for a stay of the inquiry process regarding Justice Girouard, the applicant in those proceedings. The Court also dismissed the motion to amend the applications for judicial review and stayed the proceedings in 20 of the judicial review files. At paragraph 65 of the reasons in Girouard , the Court also noted that both Justice Girouard and the CJC still had their rights and remedies before the Federal Court.

During the submissions before this Court with respect to the motion for a stay, the CJC and the IC, duly represented, did not challenge the Court’s jurisdiction. The CJC and the IC wished for the review of Justice Girouard’s conduct to continue. Now that the time has come to move forward with the judicial reviews, the CJC has decided to raise the issue of the Court’s jurisdiction.

It seems to me that as an institution responsible for promoting efficiency, consistency and accountability in Canada’s superior courts, the CJC should not be adopting whichever stance is most convenient at the time. [ 20 ] On May 3, 2018, the Court issued an order referring to several withdrawals made by Justice Girouard. He had begun by abandoning 16 of his applications, the grounds of which were covered by those raised in support of the subsequent application bearing file number T-409-18. He also abandoned three other applications that had become moot.

The Court also ordered that files T-733-15, T- 2110-15, T-423-17 and T-409-18 be consolidated. In the same spirit of consolidation, the Court was informed in the course of the proceedings and at the hearing that Justice Girouard was discontinuing proceedings raising a constitutional question before the Superior Court and would instead submit the question to the Federal Court.

In the case of file T-409-18, the CJC received a request on March 2, 2018, from Justice Girouard under rule 317 of the Rules seeking the transmission of his investigation file by March 22, 2018. [ 21 ] Just prior to a case management conference held on April 19, 2018, the Registry received an email from Normand Sabourin, Director and Senior General Counsel of the CJC, addressed to the registrar responsible for the file, informing her for the first time that the CJC did not intend to file the decision maker’s record with the Court.

In the same email, the CJC also informed the Court that it did not recognize its jurisdiction to hear the applications for judicial review of its decisions and that, accordingly, it would not comply with the Rules .

The CJC also asked that all future communication henceforth be directed to the Right Honourable Richard Wagner, Chairperson of the CJC. [ 22 ] On April 19, 2018, the Court issued an order instructing the CJC to comply with the Rules and file its decision maker’s record, which it had originally been ordered to do by March 22, 2018. [ 23 ] On April 30, 2018, in accordance with subsection 318(2) of the Rules , the CJC, through its counsel, informed the Chief Administrator of the Federal Court and the other parties that it opposed the request for transmission of the file on the grounds that it was not a “federal board, commission or other tribunal” within the meaning of the FCA and that, accordingly, this Court did not have the necessary jurisdiction to declare against it the remedies set out in subsection 18(1) of that statute. [ 24 ] In an order dated May 9, 2018, the Court granted party status to the CJC for the sole purpose of debating the jurisdiction issue and ordered the latter to file this motion to strike the remaining applications for judicial review as well as a motion to determine the CJC’s challenge regarding the filing of its complete record concerning Justice Girouard. [ 25 ] On May 15, 2018, this Court ordered struck from the style of cause of the applications for judicial review the names of the “Inquiry Committee regarding the Honourable Michel Girouard” and the “Canadian Judicial Council”, although their party status continued to be recognized for the purposes of this motion to strike.

It should be noted that, given the CJC’s failure to raise the jurisdiction issue in a timely manner, approximately two months had passed since March 22, 2018, the date by which the CJC was to have initially filed its record. [ 26 ] As will be seen below, the issue of the Federal Court’s jurisdiction has already been fully analyzed and resolved in Douglas v. Canada (Attorney General) , 2014 FC 299 , [2015] 2 F.C.R. 911 ( Douglas ), rendered by Justice Mosley on March 28, 2014.

The CJC appealed Justice Mosley’s decision and then withdrew its appeal, even though the appeal record was almost ready for hearing by the Federal Court of Appeal. The CJC is now back on the offensive, armed with essentially the same arguments it had raised before Justice Mosley four years ago. V. PARTIES’ SUBMISSIONS [ 27 ] What follows is a

summary of the principal arguments raised by the parties. A. Are the CJC and the IC federal boards, commissions or other tribunals as defined by the FCA ? [ 28 ] The CJC claims to be beyond the jurisdiction of the Federal Court in matters of judicial review because, in its view, it does not fall within the definition of “federal board, commission or other tribunal” as set out in subsection 2(1) of the FCA . The Attorney General of Canada (AGC) and Justice Girouard oppose this claim. [ 29 ] The CJC claims that the Court in Douglas did not consider the

interpretation of sections 2 and 18 of the FCA in light of the unique role played by the CJC in the Canadian constitutional order. The CJC’s view is that the source of its jurisdiction with respect to its role as overseer of the conduct of judges and judicial discipline is not a statute adopted by the Parliament of Canada (Parliament)—the JA—but rather

section 99 of the Constitution Act, 1867 , 30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982 , 1982, c. 11 (U.K.),

Schedule to the Constitution Act, 1982 , Item 1) [R.S.C., 1985, Appendix II, No. 5] (CA 1867). The CJC considers its jurisdiction to be inherent in the principle of judicial independence. Therefore, it argues, the JA is a codification of a constitutional authority establishing the judicial branch in accordance with the separation of powers doctrine. According to the CJC, the fact that a federal statute governing the exercise of this authority exists does not change the purported constitutional nature of this jurisdiction. [ 30 ] Moreover, the CJC states that it is made up of persons appointed under

section 96 of the CA 1867. In the CJC’s view, its

inclusion in the definition of federal board, commission or other tribunal would have the unacceptable effect of subjecting a group of superior court judges to the Federal Court’s judicial review procedures; the CJC alleges that this would be contrary to the exception set out in

section 2 of the FCA . The CJC argues that if Parliament had intended to grant the Federal Court jurisdiction to oversee superior court judges, this power would have been expressly provided in the FCA, its enabling statute. The CJC adds that the definition of a federal board, commission or other tribunal must be interpreted in such a way as to exclude judges appointed under

section 96 as well as those appointed under

section 101 of the CA 1867 when the latter are acting as judges with the same powers as superior court judges. [ 31 ] In response to the positions taken by the CJC, Justice Girouard notes that both the Federal Court of Appeal and the Federal Court have already ruled on the issue of the CJC’s status in Crowe v. Canada (Attorney General) , 2008 FCA 298 , 382 N.R. 50, and Douglas . Indeed, writes Justice Girouard, it has already been determined that the CJC is a “federal board, commission or other tribunal” and that this Court has jurisdiction to hear applications for judicial review of the CJC’s decisions.

Justice Girouard therefore argues that, based on the principle of stare decisis and judicial comity, this Court should respect the decisions rendered on this issue. According to Justice Girouard’s position, the status quo of the JA following Douglas is all the more indicative of Parliament’s intent not to confer on the CJC a status other than that of federal board, commission or other tribunal. [ 32 ] The AGC and Justice Girouard submit that the CJC was created by its enabling statute, the JA adopted by Parliament, and that its jurisdiction derives entirely from that statute.

For the ACG and Justice Girouard, it follows that the CJC was not created by the CA 1867; its sole powers, therefore, are those conferred upon it by Parliament through the JA. The AGC and Justice Girouard argue, therefore, that Parliament could repeal or modify the role and composition of the CJC, or even the conduct review process, in accordance with the ordinary legislative mechanisms. [ 33 ] The AGC submits that the fact that the bodies of the CJC are largely composed of judges appointed under

section 96 of the CA 1867 does nothing to change their status. According to the AGC, the bodies of the CJC exist solely as statutory bodies, and not on the basis of some inherent jurisdiction arising from the judicial status of its members. The AGC points out that a judge working within or for the CJC as an investigator is comparable to a judge appointed as a commissioner under the Inquiries Act , R.S.C., 1985, c. I-11 (IA), on whom Parliament confers the powers “vested in any court of record in civil cases” (

section 5 ). The AGC notes that the CJC judges do not act as judges, but rather as members of a statutory body with a mandate that includes investigating the conduct of judges and filing a report and, if appropriate, a recommendation. [ 34 ] Justice Girouard, on the other hand, submits that the judges belonging to the CJC are members in their capacity as chief justices, an administrative role, rather in their capacity as judges appointed under

section 96 of the CA 1867. A judge exercising true judicial functions would not be acting as a “member” as is stated in the JA , nor could he or she appoint a “substitute”, as is possible in this case, because of the personal nature of the office of judge. The CJC’s response to this is that judges charged with an inquiry into a judge’s conduct are exercising judicial jurisdiction: if a statute confers a power upon a judge, the judge must be presumed to exercise judicial jurisdiction, absent a provision to the contrary. B. Do paragraphs 63(4)(

a) and (

b) of the JA grant the CJC and the IC the status of a superior court, thereby placing them beyond the reach of judicial review? [ 35 ] The CJC submits that the deeming provision in subsection 63(4) of the JA creates a legal fiction that the CJC is deemed to be a superior court in making inquiries into the conduct of judges. While Parliament has often granted administrative tribunals some of the powers of a superior court of record, the relevant provisions rarely indicate that the tribunal is deemed to be a superior court, unlike what is indicated in subsection 63(4) .

According to the CJC, these decisions, deemed to be the decisions of a superior court, can only be challenged if there is an express right of appeal to a court of appeal, since the validity of contradictory decisions of two superior courts would be impossible to determine. [ 36 ] In response, the AGC and Justice Girouard both argue that if Parliament had wished to create a superior court, it would have done so explicitly under

section 101 of the CA 1867, as it did for the Tax Court of Canada (see, in particular,

section 3 of the Tax Court of Canada Act , R.S.C., 1985, c. T-2 (TCCA)). For the AGC and Justice Girouard, subsection 63(4) of the JA therefore simply confers upon the CJC and its inquiry committees the powers of a superior court in order to facilitate their inquiries; however, this provision does not have the effect of creating a superior court or eliminating the possibility of judicial review by the Federal Court.

To this, the CJC replies that the original bill that was to become the JA already accomplished the objective of conferring on it the powers of a superior court for the purposes of carrying out its investigations. The CJC emphasizes that Parliament allegedly amended the original bill to add the broader deeming provision. [ 37 ] However, Justice Girouard is of the view that the CJC cannot be characterized as a superior court because it has none of the constitutional attributes of the provincial superior courts.

He goes on to argue that none of the superior courts created by a statute adopted by Parliament have either the inherent jurisdiction possessed solely by provincial superior courts or the superintending and reforming power over government action and lower court decisions. [ 38 ] The AGC submits that Parliament did not choose to adopt a provision that had the effect of constituting a superior court. In the AGC’s view, a provision conferring the powers of a superior court on an administrative tribunal must be narrowly interpreted: the narrowest

interpretation required to achieve the purpose of the Act should prevail. Therefore, according to Justice Girouard, subsection 63(4) of the JA must be interpreted as the “chapeau” of a provision that simply enumerates the powers and duties conferred upon the CJC and its IC to facilitate the exercise of one of their powers: that of making inquiries relating to judges (see

section 60 of the JA).

(1) Legislative history and the intent of Parliament [ 39 ] According to the CJC, the legislative history demonstrates that Parliament’s intent was for the CJC to be deemed a superior court to enable it to discharge its duties independently during investigations into judicial conduct, without interference from the executive or legislative branches. According to Justice Girouard, however, the history of the JA demonstrates instead that members of the CJC do not exercise their duties in their capacity as judges. He notes that previously the judges had the status of commissioners with powers of

investigation into the conduct of other judges; for Justice Girouard, the addition of the deeming provision could not have had the effect of substantially modifying the role envisioned for the “commissioners”. In reply to this argument, the CJC submits that Parliament eliminated from

Part II of the JA—containing subsection 63(4) setting out the CJC’s powers of inquiry—any mention of the words “commission” and “commissioner”. The CJC submits that this amendment must be given effect. [ 40 ] The AGC submits that Parliament simply wished to grant the CJC and its inquiry committees immunity from prosecution through the deeming provision. For the CJC, this argument implies that the CJC and its committees would have no immunity with respect to the findings in their reports, as the findings are rendered after the inquiry.

The CJC is of the view that it already enjoys the constitutional protections guaranteed by judicial independence, which includes the freedom to express itself and render judgment without outside pressure or influence. Moreover, the CJC submits that if one accepts that the deeming provision grants judicial immunity to it and to its inquiry committees, one must accept that the provision may also bestow upon them the attributes of a superior court. [ 41 ] The CJC also argues that the Federal Court’s jurisdiction is a limited one.

According to the CJC, because the Federal Court lacks the inherent jurisdiction of the provincial superior courts, it is the FCA that exhaustively establishes the scope of its jurisdiction. The CJC notes that

section 18 of the FCA establishes the power of judicial review over the lower courts; however, it writes, when Parliament legislates that a court is not a lower court because it is deemed to be a superior court, it is necessary to take this statement into account when interpreting the jurisdiction over judicial review set out in

section 18 . [ 42 ] With supporting documents, the AGC explained during oral argument that until 1971, there was no specific legislation applicable to the investigation of the conduct of superior court judges. The Act respecting the Judges of Provincial Courts , R.S.C. 1886, c. 138, and subsequent legislation did not concern superior court judges. Therefore, the first statute dealing with inquiries into the conduct of superior court judges was the first version of the JA , adopted in 1971. As we shall see, the Governor in Council invoked the IA to inquire into the conduct of judges and appointed the investigator.

(2) Is the CJC the body of appeal for the reports and conclusions of the IC? [ 43 ] The CJC submits that judicial review is unnecessary, as its own internal procedures already include a mechanism analogous to an appeal de novo .

It argues that, because judicial review exists to strike a balance between legislative intent and the rule of law, the intent of Parliament in the case of the removal of judges was to maintain the CJC’s ultimate authority in the matter of the removal of judges while respecting the principle of separation of powers, which dictates that Parliament cannot, despite its final authority, remove a judge unilaterally. [ 44 ] Justice Girouard disagrees with the CJC’s claims in this regard.

Regarding the possibility of an internal appeal, he states that in common law, appeals do not exist and that all appeals are legislative creations. In this case, he argues, the appeal regime proposed by the CJC has not been adopted by Parliament.

Justice Girouard specifies that subsection 63(3) of the JA states that the IC is formed at the CJC’s request; the CJC’s role, he claims, is therefore not to conduct an appeal, but rather to review the report submitted by the IC. [ 45 ] Both the AGC and Justice Girouard submit that, without judicial review, judges under inquiry by the CJC would be deprived of their right to challenge the fairness of the proceedings.

The AGC and Justice Girouard are of the view that the judicial review of a recommendation by the CJC would give the Minister and Parliament assurance that the process followed by the CJC is fair and in accordance with the rule of law.

They note that, if the procedures followed by the CJC were not subject to the Federal Court’s superintending power, the Minister and Parliament would be forced to evaluate these elements; however, argue the AGC and Justice Girouard, they have neither the mandate nor the expertise to review recommendations made by the CJC, and this is equally true for questions of jurisdiction or fairness as it is for questions of law.

The AGC and Justice Girouard add that it cannot be the case that Parliament wished to preclude all possible remedies, especially given the seriousness of the consequences of a recommendation that the judge under inquiry be removed. [ 46 ] According to Justice Girouard, for the Minister to be able to fulfill her constitutional role and decide to refer the issue of a judge’s removal to Parliament, she must rely on an inquiry that has been conducted in accordance with the JA and the principles of procedural fairness. C.

Are the reports and conclusions of the CJC and the IC subject to judicial review by the Federal Court? [ 47 ] Finally, it is the CJC’s position that the recommendation that it must submit in the context of an inquiry and the subsequent report are not subject to judicial review. The CJC maintains that, although it can form an IC to conduct an inquiry, the CJC can do nothing more than recommend removal to the Minister.

The CJC therefore has no power to render an enforceable decision to order a judge’s removal, as this constitutional power lies exclusively with Parliament. [ 48 ] The AGC and Justice Girouard submit that what is important in determining whether a decision is subject to judicial review is whether a person’s rights are directly affected by it. Justice Girouard adds that the CJC’s activities cannot be reduced to the mere filing of a recommendation, ignoring the long inquiry process leading up to such a recommendation.

Justice Girouard raises the point that the inquiry leading up to the report must respect procedural fairness, given the direct impact on the rights and interests of the judge. Moreover, he states, respect for the principles of natural justice or procedural fairness falls expressly within the scope of the Federal Court’s supervisory authority under paragraph 18.1(4) (

b) of the FCA . VI. DOUGLAS (2014) [ 49 ] It is important to note the following: almost all of the issues that the Court will address in this decision were analyzed and ruled upon by Justice Mosley in 2014 in Douglas . As an intervener with the same status as the Canadian Superior Court Judges Association, the CJC challenged the Federal Court’s jurisdiction to hear applications for judicial review of the reports and decisions of the CJC and its constituent bodies. As mentioned in the previous

section on the background of this case, the CJC had appealed the judgment in Douglas and subsequently withdrawn its appeal. Although the file between Justice Douglas, the AGC and the CJC was settled, the CJC could still have asked the Federal Court of Appeal to hear its arguments and decide the jurisdictional issue, especially given how determinative the CJC claims the issue to be. There was still a live issue between the CJC and the AGC (see Borowski v. Canada

(Attorney General), (SCC), [1989] 1 S.C.R. 342, at pages 353–363). Justice Mosley had carefully studied the merits ofthe CJC’s and the AGC’s arguments; in fact, approximately 120 of the more than 200 paragraphs of the judgment dealt with the issue ofjurisdiction. Furthermore, there had been three days of hearings; needless to say, a considerable investment of resources had been madeby the court and by counsel. [50] I will simply reiterate a few of Justice Mosley’s key findings. On the subject of the CJC and its constituent bodies, JusticeMosley found the following:

(1) The CJC satisfies the test for determining whether a body is a federal board, commission or other tribunal (paragraphs 80 et seq.).

(2) The CJC includes not only chief justices appointed under

section 96 of the CA 1867, but also a large number of chief justicesappointed under

section 101 of that statute (paragraph 83).

(3) The chief justices, when exercising functions within the CJC, are not acting in their capacity as superior court judges (paragraphs84–86).

(4) Parliament has amended the definition of “federal board, commission or other tribunal” on several occasions to specify exclusions(paragraph 78).

(5) The inclusion of representatives of the bar, all lawyers, within the IC appears to indicate that the latter is not a body of the CJCthat constitutes a superior court (paragraph 110).

(6) It was open to Parliament to create the CJC as a court under

section 101 of the CA 1867, but it did not do so (paragraph 99).

(7) Judicial independence does not require that the decisions of the CJC and the IC be immune from judicial review by the FederalCourt (paragraph 114). [51] Regarding the

interpretation of subsection 63(4) of the JA and its paragraphs (

a) and (b), Justice Mosley found the following:

(1) The parliamentary debates show that the purpose of the powers of inquiry conferred upon the CJC and the IC in the JA, includingany mention of a “superior court”, was to grant immunity to decisions or statements made in the course of the inquiry (paragraph 103).

(2) The legislative context of subsection 63(4), namely the marginal notes and their placement, is indicative of its limited scope(paragraphs 105 et seq.).

(3) Parliament chose to grant the CJC the powers of a superior court without making it a court because, if it had intended to transformthe CJC and its IC into a superior court, it would have said so directly without using the word “deemed” (paragraph 115). [52] On the inquiry process as a whole, Justice Mosley made the following comments:

(1) It is the responsibility of the IC to conduct inquiries into the conduct of judges; it is then for the CJC to decide whether to confirmits findings. If the CJC is correct in its assertion that its report and recommendations are subject to judicial review, but not the processleading up to their adoption, the “anomalous situation” would result that neither the beginning nor the end of the process would beexcluded from review but only those parts where procedural fairness is of greatest concern (paragraphs 108–109).

(2) Conducting inquiries is not an attribute of the jurisdiction of a superior court, as such a proceeding is inquisitorial in nature.Inquiring into the conduct of a judge is not a judicial function (paragraphs 118 et seq.).

(3) The CJC, in inquiring into the conduct of a judge, is accountable as the holder of a public power. It must account for its actionsand so is not immunized against breaches of procedural fairness. It is subject to supervision. The judge being investigated is entitled to afair hearing (paragraphs 119–120).

(4) The supervisory power of the Federal Court is essential to the respect of judicial security of tenure. Parliament is not an institutionthat may be called upon to re-examine any claims the judge makes regarding the inquiry undertaken by the CJC (paragraphs 121–123). [53] This provides only a

summary. Douglas presents an in-depth examination of the issue of the Federal Court’s jurisdiction withrespect to judicial review of the CJC’s process and decisions. Justice Mosley’s findings on this issue are correct. In the followingsections, I will refer to Justice Mosley’s reasons and add observations of my own. VII. LEGISLATIVE PROVISIONS< [54] I will refer repeatedly to

section 99 of the CA 1867. It reads as follows: Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.) Tenure of office of Judges 99.

(1) Subject to subsection (2) of this section, the judges of the superior courts shall hold office during good behaviour, but shall beremovable by the Governor General on address of the Senate and House of Commons. [55] Similarly, sections 2, 18 and 18.1 of the FCA will feature heavily throughout these reasons. They read as follows: Federal Courts Act, R.S.C., 1985, c. F-7

Definitions 2

(1) In this Act, ... federal board, commission or other tribunal means any body, person or persons having, exercising or purporting to exercise jurisdiction or powers conferred by or under

an Act of Parliament or by or under an order made pursuant to a prerogative of the Crown, other than the Tax Court of Canada or any of its judges, any such body constituted or established by or under a law of a province or any such person or persons appointed under or in accordance with a law of a province or under

section 96 of the Constitution Act, 1867 ; ( office fédéral ) ... Extraordinary remedies, federal tribunals 18

(1) Subject to

section 28, the Federal Court has exclusive original jurisdiction (

a) to issue an injunction, writ of certiorari , writ of prohibition , writ of mandamus or writ of quo warranto , or grant declaratory relief, against any federal board, commission or other tribunal; and (

b) to hear and determine any application or other proceeding for relief in the nature of relief contemplated by paragraph (a), including any proceeding brought against the Attorney General of Canada, to obtain relief against a federal board, commission or other tribunal. ... Application for judicial review 18.1

(1) An application for judicial review may be made by the Attorney General of Canada or by anyone directly affected by the matter in respect of which relief is sought. ... Powers of Federal Court

(3) On an application for judicial review, the Federal Court may (

a) order a federal board, commission or other tribunal to do any act or thing it has unlawfully failed or refused to do or has unreasonably delayed in doing; or (

b) declare invalid or unlawful, or quash, set aside or set aside and refer back for determination in accordance with such directions as it considers to be appropriate, prohibit or restrain, a decision, order, act or proceeding of a federal board, commission or other tribunal. Grounds of review

(4) The Federal Court may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal (

a) acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction; (

b) failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe; (

c) erred in law in making a decision or an order, whether or not the error appears on the face of the record; (

d) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it; (

e) acted, or failed to act, by reason of fraud or perjured evidence; or (

f) acted in any other way that was contrary to law. [ 56 ] Finally, the most important provision in this case is subsection 63(4) of the JA . It reads as follows: Judges Act , R.S.C., 1985, c. J-1 63 … Powers of Council or Inquiry Committee

(4) The Council or an Inquiry Committee in making an inquiry or investigation under this

section shall be deemed to be a superior court and shall have (

a) power to summon before it any person or witness and to require him or her to give evidence on oath, orally or in writing or on solemn affirmation if the person or witness is entitled to affirm in civil matters, and to produce such documents and evidence as it deems requisite to the full investigation of the matter into which it is inquiring; and (

b) the same power to enforce the attendance of any person or witness and to compel the person or witness to give evidence as is vested in any superior court of the province in which the inquiry or investigation is being conducted. [ 57 ] The reader will also find in the annex sections 96 and 101 of the CA 1867,

section 28 of the FCA, sections 59 –60, 63–65 and 69– 71 of the JA and sections 2 to 13 of the Canadian Judicial Council Inquiries and Investigations By-laws, 2015 , SOR/2015-203 (By- laws). Contrary to what it had done in Douglas , the CJC filed no documents, policies or other records apart from a version of the By-laws that predated 2015. VIII. QUESTIONS OF LAW [ 58 ] In this case, the Court must decide three principal issues:

(1) Are the CJC and the IC federal boards, commissions or other tribunals as defined by the FCA ?

(2) Do paragraphs 63(4)(

a) and (

b) of the JA grant the CJC and the IC the status of a superior court, thereby placing them beyond the reach of judicial review?

(3) Are the reports and findings of the CJC and the IC subject to judicial review by the Federal Court? [ 59 ] I will now analyze these issues on the merits. IX. ANALYSIS [ 60 ] In this section, I will address each issue separately. I will begin with the issue involving the CJC’s status as a federal board, commission or other tribunal for the purposes of the FCA . A. Are the CJC and the IC federal boards, commissions or other tribunals as defined by the FCA ? [ 61 ] I will deal with this issue in four parts.

First, I will review the relevant legislation in order to properly identify the legislative framework in which this rather singular case is situated. Second, I will consider whether the composition of the CJC excludes it from the definition of a federal board, commission or other tribunal. Third, I will consider the test for identifying a federal board, commission or tribunal to determine whether the CJC satisfies it. Finally, I will ask myself whether the CJC flows from a source of constitutional power codified by an enactment of Parliament.

(1) Overview of the relevant legislation [ 62 ] To properly address the issue before the Court, it is first of all necessary to review the JA and the By-laws, especially the provisions dealing with the CJC and the administration of federal judicial matters. This overview will contribute to a partial evaluation the CJC’s argument that it constitutes a superior court and is therefore immune from the judicial review process set out in

section 18 of the FCA . [ 63 ]

Part I of the JA deals with many subjects, all relating to the position of judges in Canada. It includes provisions relating to salaries ( sections 9 –24) and annuities (sections 42–48) as well as the description of a quadrennial inquiry procedure by the Judicial Compensation and Benefits Commission to review the compensation and benefits of both superior court judges and prothonotaries of the Federal Court (see

section 26). [ 64 ] This first part of the JA also includes an enumeration of the courts constituted by an enactment of Parliament under

section 101 of the CA 1867, namely, the Supreme Court of Canada (Supreme Court), the Federal Court of Appeal, the Federal Court, the Court Martial Appeal Court and the Tax Court of Canada (sections 9–11). Also included are the courts of appeal and superior courts of each Canadian province and territory created under

section 96 of the CA 1867 (sections 12–22). [ 65 ]

Part II of the JA , entitled “Canadian Judicial Council”, contains a description the Council’s constitution and operation. The CJC includes the Chief Justice of Canada or his or her replacement, who acts as chairperson, and the chief justice and any senior associate chief justice and associate chief justice of each superior court or any branch or division thereof, (paragraphs 59(1)(

a) and (b)). It also includes the senior judges of the Supreme Court of Yukon, the Supreme Court of the Northwest Territories and the Nunavut Court of Justice (paragraph 59(1)(c)), as well as the Chief Justice of the Court Martial Appeal Court of Canada (paragraph 59(1)(d)). Therefore, the CJC comprises not only chief justices appointed pursuant to

section 96 of the CA 1867, but also all chief justices appointed pursuant to

section 101 of the same statute. [ 66 ] It is also set out in the JA that each member of the CJC may appoint a substitute member chosen from among the judges of that member’s court (subsection 59(4)). The Chief Justice of Canada may select not only from among sitting judges of the Supreme Court of Canada, but also from among retired judges of that Court.

It is therefore possible for a former judge to become a member of the CJC to sit as chairperson in the absence of the Chief Justice of Canada. [ 67 ] Note also that Parliament has given the CJC a dual mandate: (1) to improve the efficiency and quality of judicial service in the superior courts; and (2) to promote uniformity in the administration of justice in these courts ( subsection 60(1) of the JA ). The responsibility of inquiring into the conduct of judges falls within the purview of this mandate at two levels and is carried out though a

power of inquiry set out under the heading, “Powers of Council” ( subsection 60(2) ). It should further be noted that the CJC’s mandate in subsection 60(1) of the JA includes no express mention of regulating or monitoring the conduct of judges or of supervising judicial ethics. [ 68 ] The power of inquiry is not limited to the judges of superior courts, but applies also to other persons appointed pursuant to an enactment of Parliament to hold office during good behaviour (see subsection 69(1) of the JA ).

The CJC therefore has the power to investigate not only superior court judges, but also other persons appointed to hold office during good behaviour, should such persons exist today. In any case, it is clear that, as set out in the JA, the power at issue does not apply exclusively to judges. [ 69 ] Moreover, the power to investigate judges is described in the legislation. It is initiated by the filing of a complaint or a request for an inquiry directed against a judge of a superior court.

The Minister or the attorney general of a province may also make such a request for removal for any reason: age or infirmity; having been guilty of misconduct; having failed in the due execution of the office; having been placed, by his or her conduct or otherwise, in a position incompatible with the due execution of the office ( subsections 63(1) and 65(2) of the JA ). This request for an inquiry requires the CJC to commence one.

The CJC may also inquire into a judge’s conduct following the filing of a complaint or allegation provided that it is supported by evidence (subsection 63(2)). [ 70 ] If it chooses to commence an inquiry, the CJC selects the members who will make up the IC. The CJC recruits from among its members described above; however, the Minister may also designate barristers or advocates of at least ten years’ standing at the bar of any province (see subsection 63(3) of the JA ). It is common for the CJC to constitute an IC composed of two or three chief justices and one to two barristers or advocates.

The By-laws indicate that the majority of members must be from the CJC (see subsection 3(1) of the By-laws). [ 71 ] For the purpose of conducting an inquiry, the CJC or the IC is deemed to be a superior court with the power to summon witnesses, require them to give evidence on oath or solemn affirmation, and require them to produce documents. In particular, the JA stipulates that the CJC or IC has the powers vested in any superior court of the province in which the inquiry or investigation is being conducted ( subsection 63(4) of the JA).

Subsection 63(4) of the JA will be analyzed later in these reasons, as it is a cornerstone of the CJC’s position. [ 72 ] Moreover, the hearings may be held in private. However, hearings may be held in public if the Minister “requires” it ( subsection 63(6) of the JA ). [ 73 ] The IC is required to inform the judge under inquiry about the subject-matter of the inquiry and the time and place of any hearing and to afford the judge an opportunity, in person or by counsel, to be heard, to cross-examine witnesses and adduce evidence on his or her own behalf (

section 64 of the JA ). The CJC may also, for the purpose of the inquiry, engage the services of counsel to assist it (

section 62 of the JA). [ 74 ] The JA does not accord any status to the Minister of Justice or the attorney general who files the complaint or to the complainant who signed the complaint or allegations. It is the IC and the initial Review Panel that define the allegations and proceed with an independent inquiry. More specifically, it is the IC that chooses the witnesses and identifies and produces such documents and evidence as it deems “requisite to the full investigation of the matter” (see paragraph 63(4) (

a) of the JA). The judge under inquiry may cross- examine, adduce evidence and make the appropriate submissions. Counsel for the IC may also make any submissions he or she considers appropriate. [ 75 ] Next, the IC submits a report to the CJC, and a copy is provided to the judge under inquiry for comment (see

section 8 of the By- laws). The judge may make a written submission to the CJC regarding the report (subsection 9(1) of the By-laws). The CJC then considers the report and any submissions made by the judge (section 11 of the By-laws). The CJC may al

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