2019 FC 1282, 2019 FC 1282

T-409-18 2019 FC 1282 The Honourable Michel Girouard ( Applicant ) v. The Attorney General of Canada ( Respondent ) and The Attorney General of Quebec ( Third Party ) and The Canadian Judicial Council ( Intervener ) Indexed as: Girouard v. Canada (Attorney General) Federal Court, Rouleau D.J.—Montréal, May 22 and 23; Ottawa, October 2019.

Judges and Courts –– Judicial review seeking order to invalidate number of decisions, procedural steps that resulted in report to Minister of Justice Canada ( Minister ) recommending that applicant be removed from office –– Applicant appointed to Superior Court of Québec; prior to that, was practising lawyer –– Suspected of having purchased illicit substance –– In 2012, intervener (or Council) asked to conduct inquiry into applicant’s conduct –– Although majority of members of Inquiry Committee (“first Inquiry Committee”) of view that allegations had not been proved, recommended that applicant be removed from office for other reasons –– However, after reviewing report, intervener refused to make such recommendation to Minister for procedural reasons –– Later, following joint request from ministers of Justice of Canada, Quebec (jointly, Ministers), second inquiry launched to investigate applicant’s misconduct; new inquiry committee constituted (“second Inquiry Committee”) –– Second Inquiry Committee issued report concluding that applicant should be removed from office as result of his behaviour during first inquiry –– Upon review by second panel of intervener, majority concluded that applicant indeed guilty of misconduct; should therefore be removed from office –– Three members of panel dissented as, in their view, applicant not granted fair hearing based on Council’s failure to translate into English all transcripts of testimonies before first, second Inquiry Committees –– Applicant raised issues of procedural fairness, natural justice, claimed that his language rights not respected, also raised constitutional issues –– Whether procedural fairness was breached, whether Minister’s request for inquiry valid; whether second Inquiry Committee, intervener reversed burden of proof; whether provisions of Judges Act creating Council ultra vires Parliament’s legislative authority; whether recommendation to remove judge from office unreasonable –– Intervener could establish procedure that it deemed suitable for dealing with complaint, as long as procedure reasonable, complied with parameters established in Act –– Regarding principle of separation of functions, despite participation of two particular chief justices in work of second Inquiry Committee, who had participated as members of Review Panel, principle not breached –– Nothing suggesting that Chief Justices in question not having open minds or would not act in impartial manner with respect to allegations contained in Minister’s request –– Removal of independent counsel function from process implemented in 2015 not infringing upon principles of judicial independence, fundamental justice or procedural fairness; therefore, not infringing on applicant’s procedural fairness rights –– Minister’s decision requesting that inquiry be held into findings of majority of first Inquiry Committee prompting it to recommend applicant’s removal from office in no way flawed –– Nothing suggesting that Minister’s motivation anything other than in accordance with public interest –– Inquiry request falling within exercise of Minister’s discretion in accordance with Act ; inquiry undertaken afterward valid –– No reversal of burden of proof by Council or second Inquiry Committee –– Second Inquiry Committee’s analysis process entirely reasonable, appropriate in specific circumstances of present matter –– Such analysis not vitiated by error –– Intervener’s decision to accept recommendation of second Inquiry Committee reasonable; up to Council to decide on recommendation to Minister –– Applicant’s argument that provisions of Act allowing Council to handle complaints, investigate, report on conduct of superior court judges ultra vires Parliament’s legislative authority addressed –– When provisions of Constitution Act, 1867, ss. 96 , 99 , 100 read harmoniously with each other, clear that federal government must ensure, provide for holding of inquiry if intending to exercise its authority to remove judge –– On reading

Part II of Act as whole, clear that intervener’s powers of inquiry directly linked to power to appoint, pay, remove superior court judges –– Fact that actions taken by Council aimed at achieving better “administration of justice” not rendering them ultra vires federal government’s jurisdiction –– All powers granted to federal government in Constitution Act, 1867, ss. 96 to 100 seeking, to some degree, to ensure better administration of justice –– Intervener’s recommendation for applicant’s removal from office thus justified, its decision-making process transparent, its decision falling within range of possible, acceptable outcomes –– In light of entire record before Council, reasonable to conclude that applicant guilty of misconduct, that applicant’s integrity irremediably compromised to point that public’s confidence in judiciary undermined –– Application dismissed.

Constitutional law –– Language Rights — In context of judicial review of number of decisions, procedural steps that resulted in recommendation that applicant be removed from office, applicant claimed in particular that his language rights not respected, raised constitutional issues –– Whether applicant’s language rights violated –– Applicant relied on Constitution Act, 1867 , s, 133, Canadian Charter of Rights and Freedoms , Official Languages Act–– to plead in one’s official language flowing from several legislative sources, including Official Languages Act, of Constitution Act, 1867, s. 133 –– To extent that these statutes grant applicant right to plead his case in official language of his choice, right fully respected –– Although intervener federal institution, as defined in Official Languages Act, not included within definition of “federal court” , as established by that statute ––Therefore intervener not bound by requirements of Official Languages Act, s. 16 –– Rights granted by Charter also respected ––Important not to conflate language rights with issue of procedural fairness –– All language rights respected here ––Therefore no obligation to translate all of transcripts as not part of record that intervener required to consult before reaching recommendation –– Information needed to fully assume, exercise their role so as to make informed decision was available to all members of Council in both official languages ––Therefore no breach of procedural fairness occurring.

This was an application for judicial review seeking an order to invalidate a number of decisions and procedural steps that resulted in a report to the Minister of Justice Canada (the Minister) recommending that the applicant be removed from office . The applicant was appointed to the Superior Court of Québec in 2010 and, prior to that, he was a practising lawyer, primarily in criminal law. The applicant had been identified by a former drug trafficker as being one of his clients.

A video collected during the investigation captured an interaction between the former drug trafficker and the applicant, who was then suspected of having purchased an illicit substance. In 2012, the intervener (or the Council) was asked to conduct an inquiry into the applicant’s conduct when he was still a lawyer. Following that request, the majority of the members of the Inquiry Committee (the first Inquiry Committee) was of the view that the allegations had not been proved but that the applicant had deliberately and intentionally attempted to conceal the truth during the inquiry.

The majority therefore recommended that he be removed from office. However, after reviewing the report, the Council refused to make such a recommendation to the Minister for procedural reasons. Later, in 2016, following a joint request from the ministers of Justice of Canada and Quebec (jointly, the Ministers), a second inquiry was launched to investigate said misconduct, and a new inquiry committee was constituted (the second Inquiry Committee). The second Inquiry Committee issued a report concluding that the applicant should be removed from office as a result of his behaviour during the first inquiry.

Upon review by a second panel of the Council, a majority concluded that the applicant was indeed guilty of misconduct and should therefore be removed from office. Three members of the panel dissented as, in their view, the applicant was not granted a fair hearing. They wrote a dissenting opinion based on the Council’s failure to translate into English all the transcripts of the testimonies before the first and second Inquiry Committees.

The applicant sought judicial review of the letter from the Ministers calling for an inquiry, the second Inquiry Committee’s constitution and inquiry process, the decision of the second Inquiry Committee on the preliminary motions, and the report of the Council’s second panel recommending his removal.

He raised issues of procedural fairness and natural justice, claimed that his language rights were not respected and raised constitutional issues The issue was whether procedural fairness was breached and whether the Minister’s request for an inquiry was valid; whether the second Inquiry Committee and the Council reversed the burden of proof; whether language rights were violated; whether the provisions of the Judges Act ( Act ) creating the Council are ultra vires Parliament’s legislative authority; and whether the recommendation to remove the judge from office was unreasonable.

Held, the application should be dismissed. The intervener could establish the procedure that it deemed suitable for dealing with a complaint, as long as the procedure was reasonable and complied with the parameters established in the Act . Furthermore, the inquiry was conducted by the second Inquiry Committee, not the Council. The second Inquiry Committee was therefore responsible for hearing the witnesses, including the applicant. The applicant had an opportunity to understand the allegations against him and address them at each stage of the process.

Regarding the concerns of the minority of the Council’s second panel regarding the violation of the applicant’s language rights, this issue was fully addressed before this Court and the dissenting members’ concerns were unfounded. The Council therefore had no obligation to hear the applicant on this issue. Regarding the principle of the separation of functions, according to the applicant, the most egregious violation of the principle of the separation of functions in this case was the participation of two particular chief justices in the work of the second Inquiry Committee.

Both chief justices had previously participated as members of the Review Panel, which dealt with the first request for an inquiry. The applicant submitted that the subsequent participation of the chief justices as members of the second Inquiry Committee was prohibited by paragraph 3(4) (

c) of the Canadian Judicial Council Inquiries and Investigations By-laws, 2015 (2015 By-laws) and created a reasonable apprehension of bias. Although certain portions of the report of the Review Panel may be perceived as being problematic, upon reviewing them in their context, they did not give rise to a reasonable apprehension of bias. As the Review Panel explained in its report, the Council’s mandate was to [translation] “gather information and to decide, in light of this information, what is to be done, in accordance with the provisions of the Act , the By-laws and the Procedures ” .

Its mandate was not to decide evidentiary questions. There was nothing to suggest that the chief justices in question did not have open minds or would not act in an impartial manner with respect to the allegations contained in the Minister’s request dated June 2016. As for the removal, from the 2015 By-laws, of the independent counsel function, the applicant argued that this was a breach of procedural fairness. However, the absence of an independent counsel was not problematic in the least.

The removal of the independent counsel function from the process implemented in 2015 did not infringe upon the principles of judicial independence, fundamental justice or procedural fairness. In this case, in the absence of an independent counsel, the second Inquiry Committee availed itself of the option to retain the services of counsel. The counsel retained acted under the direction of the committee while remaining bound by their obligation to preserve their professional independence.

Furthermore, there was nothing in this case to suggest that, had independent counsel been appointed, the applicant’s interests would have been better represented. In addition, the applicant had access to his own counsel to represent him in this matter. Accordingly, the removal of the independent counsel function did not infringe on the applicant’s procedural fairness rights. The second inquiry was undertaken further to a request from the ministers of Justice of Canada and Quebec (jointly, the Ministers).

The letter from the Ministers requested that an inquiry be held into the findings of the majority of the first Inquiry Committee that prompted it to recommend the applicant’s removal from office. The Minister’s decision was in no way flawed. The Minister was entitled to request that an inquiry be held into the applicant’s misconduct during the first inquiry, and it could not be concluded that her request dictated the approach that the Council should take. The Act is clear that the Minister may request that the Council commence an inquiry.

Evidently, since the Council continued the inquiry, it concluded that the purpose of the Minister’s request was not to reassess the decision of the first panel of the Council. This conclusion was well founded because the two inquiries dealt with different allegations. There was nothing to suggest that the Minister’s motivation was anything other than in accordance with the public interest. The inquiry request fell within the exercise of the Minister’s discretion in accordance with the Act , and the inquiry undertaken afterward was valid.

With respect to the fact that during his testimony before the second Inquiry Committee, the applicant consulted a compendium prepared by his counsel, the second Inquiry Committee’s decision that the applicant had to put the compendium aside during the cross- examination was reasonable. A tribunal has the right, and even the obligation, to manage the proceeding and to apply a proportionate procedure to it, which enables, among other things, a timely determination of the case before it. In this case, the applicant’s use of the compendium slowed the progress of the cross-examination.

In addition, the applicant did not demonstrate that he suffered harm because

he could not use the compendium in cross-examination. There was no reversal of the burden of proof. The purpose of the second Inquiry Committee was to investigate and to decide whether the conclusion of the majority of the first Inquiry Committee regarding the applicant’s misconduct should be upheld. When read in their overall context, the reasons indicated that the second Inquiry Committee’s analysis was not as limited as the applicant claimed. In fact, the second Inquiry Committee conducted a three-step analysis to address the problem before it.

This analysis process of the second Inquiry Committee was entirely reasonable and appropriate in the specific circumstances of this matter. The applicant was therefore given a full and fair hearing during which he was free to point out any errors in the first Inquiry Committee’s analysis and was able to rebut, explain or justify the conduct with which the first Inquiry Committee found fault. The second Inquiry Committee did not reverse the burden of proof and did not ignore the dissent of a particular chief justice.

The second Inquiry Committee’s analysis was not vitiated by error and its findings were reasonable. Furthermore, the second panel of the Council did not reverse the burden of proof. Normally, unless there is an error that may be qualified as palpable and overriding, the Council accepts the assessment of the evidence made by the inquiry committee because it is the inquiry committee that is responsible for conducting the inquiry. It was for the Council to decide on the recommendation to the Minister. Under the Act and the 2015 By-laws, the Council is not bound to accept the conclusions of the inquiry committee.

It is for the Council to use its own judgment regarding the appropriate recommendation in light of the committee’s findings following an inquiry. The Council’s decision to accept the recommendation of the second Inquiry Committee was therefore reasonable. As for the applicant’s allegation that his language rights were violated, the applicant relied on

section 133 of the Constitution Act, 1867 , the Canadian Charter of Rights and Freedoms and the Official Languages Act . The right to plead in one’s official language flows from several legislative sources, including the Official Languages Act and

section 133 of the Constitution Act, 1867 . To the extent that these statutes grant the applicant the right to plead his case in the official language of his choice, the right was fully respected. The applicant was able to testify and argue his case in his chosen language, and the Council ensured that all of the evidence and all of the decisions rendered were provided to him in the official language of his choice. Although the Council is a federal institution, as defined in the Official Languages Act , it is not included within the definition of “federal court” , as established by that statute. It is therefore not bound by the requirements of

section 16 of the Official Languages Act , which requires that, “if French is the language chosen by the parties for proceedings conducted before it in any particular case” , the court must understand “French without the assistance of an interpreter” . When the function of the proceedings of the federal institution is investigative and there is neither a prosecutor nor a dispute in the traditional sense, the institution is not a federal court within the meaning of the statute because it does not carry out adjudicative functions. Thus, there was no violation of

Part III of the Official Languages Act . The rights granted by the Charter ( sections 16 , 19 and 20 ) were also respected. It was important not to conflate language rights with the issue of procedural fairness. All of the language rights were respected. Before making its recommendation to the Minister, the Council does not take over the file that was before the Inquiry Committee. There was therefore no obligation to translate all of the transcripts. They were not part of the record that the Council was required to consult before reaching the recommendation contained in its report to the Minister.

The complete contents of the Report of the Second Inquiry Committee and the applicant’s written submission, including the relevant excerpts, were translated. Thus, the information needed to fully assume and exercise their role so as to make an informed decision was available to all members of the Council in both official languages. There was therefore no breach of procedural fairness. The applicant’s argument that the provisions of the Act allowing the Council to handle complaints, investigate and report on the conduct of superior court judges are ultra vires Parliament’s legislative authority was considered.

In the instant case, the element of

Part II of the Act that was disputed is the power conferred upon the Council to initiate an inquiry of superior court judges and subsequently make a recommendation as to the potential removal of those judges. It would be inconsistent to grant the federal government the power to remove a judge, but not the necessary jurisdiction to ensure that an inquiry process is provided prior to exercising that power.

When the provisions in sections 96 , 99 and 100 of the Constitution Act, 1867 , are read harmoniously with each other and in conjunction with the case law on judicial independence, it is clear that the federal government must ensure and provide for the holding of an inquiry if it intends to exercise its authority to remove a judge. The legislative authority to establish a process for ensuring an inquiry is held naturally flows from this. On reading

Part II of the Act as a whole, it is clear that the Council’s powers of inquiry are directly linked to the power to appoint, pay and remove superior court judges. The fact that the actions taken by the Council are aimed at achieving a better “administration of justice” do not render them ultra vires the federal government’s jurisdiction. All of the powers granted to the federal government in sections 96 to 100 of the Constitution Act, 1867 seek to ensure a better administration of justice.

Finally, with respect to the recommendation for the applicant’s removal, the Council’s recommendation was justified, its decision- making process was transparent and its decision fell within a range of possible, acceptable outcomes. In accordance with its mandate, the Council reviewed the Report of the Second Inquiry Committee and the applicant’s submission.

In light of the entire record that was before the Council, it was reasonable to conclude that the applicant was guilty of misconduct and that the integrity of the applicant was irremediably compromised to the point that the public’s confidence in the judiciary was undermined. STATUTES AND REGULATIONS CITED Canadian Bill of Rights , S.C. 1960, c. 44 [R.S.C., 1985, Appendix III], s. 2(e). Canadian Charter of Rights and Freedoms , being

Part I of the Constitution Act, 1982 ,

Schedule B, Canada Act 1982 , 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 11 (d) , 14, 16 , 19–22. Canadian Judicial Council Inquiries and Investigations By-laws , SOR/2002-371 (rep. by SOR/2015-203, s. 15 ), ss. 1.1(2), 5(1) . Canadian Judicial Council Inquiries and Investigations By-laws, 2015 , SOR/2015-203, ss. 2(1) , 3(1) , (2) , (3) (4)(c), 4 , 5(1) , (2) , 7 , 8 , 9 , 11 , 12 , 13 . Code of ethics of advocates , CQLR, c. B-1, r. 3.1, s. 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]), ss. 91–95, 96–101, 133. Courts of Justice Act, R.S.Q., c. T-16. Federal Courts Rules, SOR/98-106, r. 109(1). Judges Act, R.S.C., 1985, c. J-1, ss. 58–71. Official Languages Act, R.S.C., 1985 (4th Supp.), c. 31, ss. 3(1) “federal institution”, (2), 14–16. CASES CITED APPLIED: Therrien (Re), 2001 SCC 35, [2001] 2 S.C.R. 3; Ruffo v. Conseil de la magistrature, (SCC), [1995] 4 S.C.R. 267,(1995), 130 D.L.R. (4th) 1; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; Groia v. Law Society of Upper Canada,2018 SCC 27, [2018] 1 S.C.R. 772; Prassad v.

Canada (Minister of Employment and Immigration), (SCC), [1989] 1S.C.R. 560, (1989), 57 D.L.R. (4th) 663; Committee for Justice and Liberty v. National Energy Board, (SCC), [1978] 1S.C.R. 369, (1976), 68 D.L.R. (3d) 716. DISTINGUISHED: 2747-3174 Québec Inc. v. Quebec (Régie des permis d’alcool), (SCC), [1996] 3 S.C.R. 919, (1996), 140 D.L.R. (4th)577. CONSIDERED: Girouard v. Canada (Attorney General), 2017 FC 449; Girouard v. Canada (Attorney General), 2018 FC 865, [2019] 1 F.C.R. 404;Girouard v. Canada (Attorney General), 2018 FC 1184, affd 2019 FCA 252; Girouard v.

Canada (Attorney General), 2019 FC 434;Conférence des juges de paix magistrats du Québec v. Quebec (Attorney General), 2016 SCC 39, [2016] 2 S.C.R. 116; Valente v. TheQueen, (SCC), [1985] 2 S.C.R. 673, (1985), 24 D.L.R. (4th) 161; Moreau-Bérubé v. New-Brunswick (Judicial Council),2002 SCC 11. [2002] 1 S.C.R. 249; Gratton v. Canadian Judicial Council, (FC), [1994] 2 F.C. 769, (1994), 115D.L.R. (4th) 81 (T.D.); Taylor v. Canada (Attorney General), 2001 FCT 1247, [2002] 3 F.C. 91, affd 2003 FCA 55, [2003] 3 F.C. 3;Douglas v. Canada (Attorney General), 2014 FC 299, [2015] 2 F.C.R. 911; Cosgrove v.

Canadian Judicial Council, 2007 FCA 103,[2007] 4 F.C.R. 714, leave to appeal to S.C.C. refused, [2007] 3 S.C.R. x; Canada (Citizenship and Immigration) v. Khosa, 2009 SCC12, [2009] 1 S.C.R. 339; Lac La Ronge Indian Band v. Canada, 2015 FCA 154 474 N.R. 283; Trial Lawyers Association of BritishColumbia v. Bristish Columbia (Attorney General), 2014 SCC 59, [2014] 3 S.C.R. 31. REFERRED TO: Canadian Judicial Council v. Girouard, 2019 FCA 148, [2019] 3 F.C.R. 503, leave to appeal to S.C.C. refused on December 12, 2019;Cooper v.

Canada (Human Rights Commission), (SCC), [1996] 3 S.C.R. 854 , (1996), 140 D.L.R. (4th) 193; TheQueen v. Beauregard, (SCC), [1986] 2 S.C.R. 56 (1986), 30 D.L.R. (4th) 481; Reference re Remuneration of Judges ofthe Provincial Court of Prince Edward Island; Reference re Independence and Impartiality of Judges of the Provincial Court of PrinceEdwards Island, (SCC), [1997] 3 S.C.R. 3, (1997), 150 D.L.R. (4th) 577; Pal v. Canada (Minister of Employment andImmigration), [1993] F.C.J. No. 1301 (QL), 1993 CarswellNat 836 (WestlawNext Canada) (T.D.); Yukon Francophone School Board,Education Area #23 v.

Yukon (Attorney General), 2015 SCC 25, [2015] 2 S.C.R. 282; Wewaykum Indian Band v. Canada, 2003 SCC 45,[2003] 2 S.C.R. 259; Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, [2001] 2 S.C.R. 460; Toronto (City) v. P.S.A.C., Local 79,2003 SCC 63, [2003] 3 S.C.R. 77; Girouard v. Inquiry Committee Constituted Under the Procedures for Dealing With Complaints Madeto the Canadian Judicial Council About Federally Appointed Judges, 2014 FC 1175; Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R.87; Pfizer Canada Inc. v.

Teva Canada Limited, 2016 FCA 161, leave to appeal to S.C.C. refused, [2017] 2 S.C.R. xviii; Stoneham andTewkesbury v. Ouellet, (SCC), [1979] 2 S.C.R. 172, (1979), 28 N.R. 361; R. v. Shafia, 2016 ONCA 812, 341 C.C.C.(3d) 354, leave to appeal to the S.C.C. refused, [2017] 2 S.C.R. xvii; Université du Québec à Trois Rivières v. Larocque, (SCC), [1993] 1 S.C.R. 471, (1993), 101 D.L.R. (4th) 494; Hanna v. Mission Institution, [1995] F.C.J. No. 1370 (QL) (T.D.); Belairv. Canada (Solicitor General), (F.C.T.D.); Reference re Firearms Act (Can.), 2000 SCC 31, [2000] 1 S.C.R. 783. AUTHORS CITED Canadian Judicial Council.

Amended Detailed Notice of Allegations to the Honourable Michel Girouard, March 17, 2015. Canadian Judicial Council. Handbook of Practice and Procedure of the Canadian Judicial Council Inquiry Committees, September 17,2015. Canadian Judicial Council. Inquiry Committee Concerning the Honourable Michel Girouard. Report of the Inquiry Committee to theCanadian Judicial Council, November 18, 2015. Canadian Judicial Council. Inquiry Committee Concerning the Honourable Michel Girouard. Report of the Inquiry Committee to theCanadian Judicial Council, November 6, 2017. Canadian Judicial Council.

Inquiry Committee Established by the Canadian Judicial Council to Conduct a Public Inquiry ConcerningMr. Justice Robert Flahiff. Decision of Inquiry Committee on Preliminary Motions by Mr. Justice Robert Flahiff, April 9, 1999. Canadian Judicial Council. Inquiry Committee Regarding the Conduct of the Honourable Michel Girouard, S.C.J., Directions toCounsel, March 17, 2017.

Canadian Judicial Council. Inquiry Committee Regarding the Conduct of the Honourable Michel Girouard, S.C.J., Reasons for Decisions on Preliminary Motions Rendered from the Bench on February 22, 2017 , April 4, 2017. Canadian Judicial Council. Inquiry Committee to Review the Conduct of the Honourable Michel Girouard of the Superior Court of Québec. Report of the Canadian Judicial Council to the Minister of Justice , April 20, 2016. Canadian Judicial Council. Inquiry into the Conduct of the Honourable Michel Girouard. Dissent , February 20, 2018. Canadian Judicial Council.

Inquiry into the Conduct of the Honourable Michel Girouard. Report to the Minister of Justice , February 20, 2018. Canadian Judicial Council. Report of the Canadian Judicial Council to the Minister of Justice. Majority Reasons of the Canadian Judicial Council in the Matter of an Inquiry into the Conduct of the Honourable P. Theodore Maltow , December 3, 2008. Canadian Judicial Council. Report of the Canadian Judicial Council to the Minister of Justice of Canada under ss. 65(1) of the Judges Act Concerning Mr. Justice Jean-Guy Boilard of the Superior Court of Quebec , December 19, 2003. Canadian Judicial Council.

Report of the Review Panel , February 6, 2014 . Grammond, Sébastien and Mark Power, “Should Supreme Court Judges be Required to be Bilingual?” in Nadia Verelli, ed., The Democratic Dilemma: Reforming Canada’s Supreme Court , Montréal: McGill-Queen’s University Press, 2017. Heard, Andrew. “Assessing Senate Reform Through Bill C-19: The Effects of Limited Terms for Senators” in Jennifer Smith, ed., The Democratic Dilemma: Reforming the Canadian Senate , Montréal: McGill-Queen’s University Press, 2009. Kaufman, R. “ Chilling Judicial Independence ” (1979), 88 Yale L.J. 681.

Kurland, Philip B. “ The Constitution and the Tenure of Federal Judges: Some Notes from History ” (1969), 36 U. Chicago L. Rev. 665. APPLICATION for judicial review seeking an order to invalidate a number of decisions and procedural steps that resulted in a report to the Minister of Justice Canada recommending that the applicant be removed from office. Application dismissed. APPEARANCES Gérald R. Tremblay , Louis Masson , Bénédicte Dupuis and Guillaume Renaud for applicant the Honourable Michel Girouard. Claude Joyal , Pascale-Catherine Guay and Lindy Rouillard-Labbé for respondent the Attorney General of Canada.

Ronald F. Caza , Alyssa Tomkins and Gabriel Poliquin for intervener the Canadian Judicial Council. SOLICITORS OF RECORD McCarthy Tétrault L.L.P. , Montréal, and Joli-Cœur Lacasse, Avocats , Quebec, for applicant the Honourable Michel Girouard. Deputy Attorney General of Canada for respondent the Attorney General of Canada. Caza Saikaley , Ottawa, for intervener the Canadian Judicial Council. Bernard, Roy (Justice – Quebec) , Quebec, for third party the Attorney General of Quebec. The following is the English version of the reasons for judgment and judgment rendered by Rouleau D.J.: I.

OVERVIEW [ 1 ] The applicant, the Honourable Justice Michel Girouard (Justice Girouard), seeks an order to invalidate a number of decisions and procedural steps that resulted in a report to the Minister of Justice Canada (the Minister) recommending that the judge be removed from office. For the reasons that follow, I dismiss the application for judicial review. [ 2 ] In 2012, the Canadian Judicial Council (the Council) was asked to conduct an inquiry into the conduct of Justice Girouard when he was still a lawyer.

Following that request, the majority of the members of the Inquiry Committee (the first Inquiry Committee) was of the view that the allegations had not been proved but that Justice Girouard had deliberately and intentionally attempted to conceal the truth during the inquiry. The majority therefore recommended that he be removed from office.

However, after reviewing the first Inquiry Committee’s report, the Council refused to make such a recommendation to the Minister, stating that the allegation of misconduct on which the majority of the first Inquiry Committee’s recommendation was based had not been put to the judge to allow him to respond and therefore could not be relied on to support such a recommendation for removal. [ 3 ] In 2016, following a joint request from the ministers of Justice of Canada and Quebec (jointly, the Ministers), a second inquiry was launched to investigate said misconduct, and a new inquiry committee was constituted (the second Inquiry Committee).

The second Inquiry Committee issued a report [ Report of the Canadian Judicial Council to the Minister of Justice , April 20, 2016] concluding that Justice Girouard should be removed from office as a result of his behaviour during the first inquiry. Upon review by a second panel of the Council, a majority made up of 20 judges concluded that Justice Girouard was indeed guilty of misconduct and should therefore be

removed from office. Three members of the panel dissented as, in their view, Justice Girouard was not granted a fair hearing. [ 4 ] Justice Girouard now seeks, before the Federal Court, judicial review of the letter from the Ministers calling for an inquiry, the second Inquiry Committee’s constitution and inquiry process, the decision of the second Inquiry Committee on the preliminary motions, and the second panel of the Council’s report recommending his removal.

Justice Girouard raises issues of procedural fairness and natural justice, claims that his language rights were not respected and raises constitutional issues. II. FACTS A . History of the case [ 5 ] Justice Girouard was appointed to the Superior Court of Québec on September 30, 2010. Prior to that, he was a practising lawyer, primarily in criminal law, for 25 years in Abitibi. [ 6 ] At about the same time as Justice Girouard’s appointment, Mr. Lamontagne, one of the Justice’s former clients, was arrested and charged with drug trafficking and gangsterism following an investigation by the Sûreté du Québec.

The video rental store operated by Mr. Lamontagne was the subject of a search on October 6, 2010, during which video recordings were seized. [ 7 ] Then, in 2012, the Director of Criminal and Penal Prosecutions informed the Chief Justice of the Superior Court of Québec, François Rolland, that Justice Girouard had been identified by a former drug trafficker as being one of his clients. A video collected during the investigation captured an interaction between Mr. Lamontagne and Justice Girouard dated September 17, 2010, when the latter was still a lawyer.

Justice Girouard was then suspected of having purchased an illicit substance. On November 30, 2012, Chief Justice Rolland therefore asked the Council to investigate Justice Girouard’s conduct. [ 8 ] The video recording referenced in the previous paragraph shows an interaction between Justice Girouard and Mr. Lamontagne. There is no sound. As described by the first Inquiry Committee at page 21 of its report [ Report of the Inquiry Committee to the Canadian Judicial Council , November 18, 2015], this is what can be observed: Time of the recording Description 12:26:35 Mr. Lamontagne sits alone at his desk.

He takes a “Post-it” self-stick note from a pad. The self- stick note seems to be of medium size. Mr. Lamontagne places the self-stick note in front of him on the desk. 12:26:48 to 12:26:57 Mr. Lamontagne takes a small object from the right pocket of his trousers and places it on the “Post-it” self-stick note that he had already placed on his desk. 12:26:58 to 12:27:06 Mr. Lamontagne rolls the small object (three or four times) inside the “Post-it” self-stick note and folds its two ends. 12:27:07 to 12:27:12 Mr.

Lamontagne takes the small object rolled inside the “Post-it” self-stick note and places it in the right pocket of his trousers. 12:37:02 to 12:37:59 A woman enters Mr. Lamontagne’s office. She files a document in a cabinet behind Mr. Lamontagne. They have a discussion. She walks out of the surveillance camera’s field of view. She returns, takes a few papers, and then leaves the office. During this time, Mr. Lamontagne remains seated at his desk. 13:01:56 Mr. Girouard enters Mr. Lamontagne’s office. 13:01:57 to 13:02:09 Mr.

Girouard searches in the left pocket of his jacket and takes out dollar bills that he immediately slips under Mr. Lamontagne’s desk pad. He also holds in his hands a piece of paper that he places on Mr. Lamontagne’s desk. 13:02:01 to 13:02:08 Mr. Lamontagne searches in the right pocket of his trousers and takes out an object that he hides in his hand. 13:02:08 to 13:02:09 Mr. Lamontagne, hiding the object in his hand, places his hand on the desk and slides his hand toward Mr. Girouard. Mr. Girouard slides his hand forward in the same manner and receives the object from Mr. Lamontagne. 13:02:10 Mr.

Lamontagne no longer has the object in his hand. 13:02:11 to

13:02:14 Mr. Lamontagne takes the money that Mr. Girouard had slipped under the desk pad. [ 9 ] When the request for an inquiry was made, the late Chief Justice Blanchard was the Chairperson of the Judicial Conduct Committee. Following an initial review of the matter, he asked outside counsel to conduct a confidential inquiry and, subsequently, decided to constitute a review panel.

Following the death of the late Chief Justice Blanchard, Chief Justice MacDonald succeeded him as Chairperson of the Judicial Conduct Committee. [ 10 ] A review panel (Panel) was therefore established by the Council in October 2013 to deal with the request for an inquiry and have outside counsel conduct a preliminary inquiry. Chief Justices Drapeau and Joyal, as well as Justice LeBlanc, were appointed to sit on the Panel.

The Review Panel tabled its report on February 6, 2014, in which it recommended that an inquiry committee be constituted. [ 11 ] On June 18, 2014, the Council constituted the first Inquiry Committee to conduct the requested inquiry. Chief Justices Chartier and Crampton and Mr. LeBlanc sat on the first Inquiry Committee. [ 12 ] On March 17, 2015, the first Inquiry Committee issued a Detailed Notice of Allegations. These allegations, as amended, included the following eight charges [ Amended Detailed Notice of Allegations to the Honourable Michel Girouard ]: Count 1: While he was a lawyer, Mr.

Girouard allegedly used drugs on a recurring basis. … Count 2: For a period of three to four years between 1987 and 1992, while he was a lawyer, Mr. Girouard allegedly purchased cocaine from Mr. X for his personal use, namely a total of about 1 kilogram with an approximate value of between $90,000 and $100,000. … Count 3: On September 17, 2010, while his application for appointment as a judge was pending, and more specifically two weeks before his appointment on or about September 30, 2010, Mr.

Girouard allegedly purchased an illicit substance from Yvon Lamontagne, who was also his client. … Count 4: In the early 1990s, while he was a lawyer, Mr. Girouard allegedly exchanged professional services provided to Mr. X worth about $10,000, in relation to a case before the predecessor of the Régie des alcools, des courses et des jeux, for cocaine for his personal use. … Count 5: While he was a lawyer, Mr.

Girouard was allegedly under the influence of an organization involved in organized crime, since he allegedly set up a mini greenhouse for cannabis plants in the basement of his home with the help of two members of that organization. … Count 6: On January 25, 2008, Mr.

Girouard signed the Personal History Form used by the Office of the Commissioner for Federal Judicial Affairs and failed to disclose the information included in this Notice of Allegations in answer to the following question: “Is there anything in your past or present which could reflect negatively on yourself or the judiciary, and which should be disclosed?”. … Count 7: On or about January 11, 2013 and on or about August 14, 2013, Justice Girouard tried to mislead the Canadian Judicial Council by providing explanations that concealed the truth about the video recording of the transaction on September 17, 2010. … Count 8: On or about January 11, 2013 and on or about August 14, 2013, Justice Girouard made unbecoming comments that discredited certain officers of the court (agents of the Crown, lawyers and police officers) by insinuating that they had acted together to encourage false statements against him as retaliation. [ 13 ] Before the Inquiry Committee, Justice Girouard testified that the video depicts him paying Mr.

Lamontagne for previously viewed movies. He also testified that the purpose of his visit was to discuss a tax matter for which he had been retained and which concerned Mr. Lamontagne. With regard to the “Post-it” , Justice Girouard testified that it contained a note on which Mr. Lamontagne had written the amount he was prepared to accept to settle the tax matter. [ 14 ] On November 18, 2015, the first Inquiry Committee issued its report.

The majority of the members rejected all allegations against Justice Girouard, but nonetheless identified six contradictions, inconsistencies and implausibilities in Justice Girouard’s testimony. This led them to conclude that Justice Girouard’s testimony regarding the transaction captured on video was logically incoherent. The majority was of the view that Justice Girouard had deliberately and intentionally attempted to conceal the truth.

Indeed, the majority determined that Justice Girouard’s conduct was so manifestly destructive of the concept of integrity that public confidence was sufficiently undermined to render him incapable of executing his judicial office. The majority therefore recommended his removal from office. [ 15 ] For his part, Chief Justice Chartier wrote dissenting reasons in which he did not recommend that Justice Girouard be removed from office.

Although he stated that he agreed with much of the majority’s analysis, his dissent focused mainly on the assessment of the evidence surrounding Justice Girouard’s testimony and on the application of the law to the facts. Chief Justice Chartier opined, inter alia , that the inconsistencies identified by the majority in Justice Girouard’s testimony were predictable, since they were of the kind that

can be expected given the circumstances surrounding the inquiry and in a testimony that lasted five days. As for the content of the video recording, while Chief Justice Chartier certainly characterized it as being “shady” , he was of the view that in order to conclude that Justice Girouard deliberately attempted to mislead the first Inquiry Committee or that he lied during the process, there needed to be more than a simple credibility assessment. According to Chief Justice Chartier, there needed to be evidence that was independent of Justice Girouard’s testimony to confirm that what he had stated was not true.

Chief Justice Chartier also concluded that the first Inquiry Committee could not impose a consequence on Justice Girouard for his misconduct during the inquiry, as that was not part of the Notice of Allegations. [ 16 ] Subsequently, the Council reviewed the recommendation of the first Inquiry Committee and, on April 20, 2016, filed its report to the Minister. In its report, the Council unanimously rejected the recommendation for removal made by the first Inquiry Committee and recommended to the Minister that Justice Girouard not be removed.

The Council stated that it did not consider the conclusion of the majority of the first Inquiry Committee that Justice Girouard attempted to mislead the Committee by concealing the truth.

The Council was of the view that Justice Girouard was “not informed that the specific concerns of the majority were a distinct allegation of misconduct to which he must reply in order to avoid a recommendation for removal” (Canadian Judicial Council, Report of the Canadian Judicial Council to the Minister of Justice (April 20, 2016), at paragraph 42). [ 17 ] On June 14, 2016, in a joint letter, the Ministers requested a second inquiry “be held into the findings of the majority of the Inquiry Committee that prompted it to recommend Justice Girouard’s removal from office” . [ 18 ] Following that request, the Council formed the second Inquiry Committee.

Chief Justices Drapeau and Joyal, Associate Chief Justice Rivoalen, Bâtonnier Synnott and Mr. Veilleux sat on that committee. [ 19 ] Before this second Inquiry Committee, Justice Girouard brought numerous preliminary motions and filed an application for a stay of proceedings and the dismissal of the second inquiry. The second Inquiry Committee dismissed all of the judge’s applications during the February 22, 2017 hearing. Reasons were issued in a decision dated April 5, 2017. [ 20 ] Justice Girouard brought, before the Federal Court, 20 applications for judicial review of the decision on the preliminary motions.

He also filed an interlocutory application to suspend the inquiry process. [ 21 ] On May 4, 2017, the Federal Court dismissed the application [ Girouard v.

Canada (Attorney General) , 2017 FC 449 ] to stay the second Inquiry Committee’s investigation and stayed the proceedings with regard to the 20 applications for judicial review. [ 22 ] The Notice of Allegations issued by the Council for the second inquiry, as amended, included the following four allegations against Justice Girouard: (translation) First Allegation Judge Girouard has become incapacitated or disabled from the due execution of the office of judge by reason of his misconduct during the inquiry conducted by the First Committee, which misconduct is more fully set out in the findings of the majority reproduced at paragraphs 223 to 242 of its Report:

a) Judge Girouard failed to cooperate with transparency and forthrightness in the First Committee’s inquiry;

b) Judge Girouard failed to testify with transparency and integrity during the First Committee’s inquiry;

c) Judge Girouard attempted to mislead the First Committee by concealing the truth; Second Allegation Judge Girouard has also become incapacitated or disabled from the due execution of the office of judge by reason his misconduct and his failure in the due execution of the office of judge ( ss. 65(2) (

b) and (

c) of the Judges Act ), by falsely stating before the First Committee that:

a) he never used drugs;

b) he never obtained drugs; Third Allegation Judge Girouard has also become incapacitated or disabled from the due execution of the office of judge by reason of his misconduct and failure in the due execution of the office of judge ( ss. 65(2) (

b) and (

c) of the Judges Act ), by falsely stating before this Inquiry Committee that he never used cocaine when he was a lawyer; Fourth Allegation Judge Girouard has also become incapacitated or disabled from the due execution of the office of judge by reason of his misconduct and failure in the due execution of the office of judge ( ss. 65(2) (

b) and (

c) of the Judges Act ), by falsely stating before this Inquiry Committee that he never became acquainted with and was never provided a copy of Volume 3 of the Doray Report before May 8, 2017, his testimony on point being: “A. That is... that is... I was never shown Volume 3, even in the first inquiry, never; I saw it for the first time on Monday, May 8, this week; O.K.?

That is… Q. But… A. …the truth!” Canadian Judicial Council, Inquiry Committee Concerning the Honourable Michel Girouard, Report of the Inquiry Committee to the Canadian Judicial Council , November 6, 2017 (Report of the Second Inquiry Committee), at paragraph 1. [ 23 ] In his testimony before the second Inquiry Committee, Justice Girouard attempted to explain once again the transaction captured on video. On November 6, 2017, the second Inquiry Committee filed its report in which it confirmed the contradictions, inconsistencies and implausibilities identified by the majority of the first Inquiry Committee.

The second Inquiry Committee concluded that the first, third and fourth allegations had been established on a balance of probabilities and that Justice Girouard should be removed from office. As for the second allegation, it had not been established. [ 24 ] On December 5, 2017, Justice Girouard provided his written submissions to the second panel of the Council. On February 20, 2018, the Council submitted its second report to the Minister, in which it recommended that Justice Girouard be removed from office.

The Council only considered the first allegation and, after concluding that it had been established, determined that the judge’s integrity had been fatally compromised, that public confidence in the judiciary had been undermined, and that Justice Girouard had become incapacitated or disabled from the due execution of his office of judge.

Three members of the second panel of the Council, Chief Justices Smith and Bell and Associate Chief Justice O’Neil, wrote a dissenting opinion based on the Council’s failure to translate into English all the transcripts of the testimonies before the first and second Inquiry Committees. B. History of the case [ 25 ] The conduct of this case was not simple. A great deal of work was done by the parties and Justice Noël, the case management judge, to ensure the progress of the case so that it could be heard on the merits.

Indeed, Justice Girouard brought 24 separate applications for judicial review before this Court to review the decisions of the second Inquiry Committee, the Council and the Minister. As part of the preliminary proceedings, this Court refused to allow an application by Justice Girouard to stay this judicial review ( Girouard v. Canada (Attorney General) , 2017 FC 449 ). [ 26 ] Following a number of case management conferences, some of the 24 applications for judicial review were set aside and others were consolidated by order dated May 3, 2018.

My judgment disposes of all the remaining applications for judicial review. [ 27 ] Delays were also incurred following the Council’s refusal to produce its record. Before this Court, on May 24, 2018, the Council filed motions to strike based on its claim that the Federal Court does not have jurisdiction to review a decision rendered by the Council. By judgment rendered on August 29, 2018, Justice Noël dismissed those motions and denied the Council’s application to stay this judicial review ( Girouard v. Canada (Attorney General) , 2018 FC 865 , [2019] 1 F.C.R. 404 ( Girouard (2018))).

On May 16, 2019, an appeal to the Federal Court of Appeal was also dismissed ( Canadian Judicial Council v. Girouard , 2019 FCA 148 , [2019] 3 F.C.R. 503). An application for leave to appeal to the Supreme Court of Canada is currently pending [leave to appeal refused December 12, 2019]. [ 28 ] Then, a series of appearances and motions before Justice Noël was required to resolve the content of the record and determine which documents are covered by privilege. A judgment rendered by Justice Noël, dated November 26, 2018, which dealt with these issues, was appealed by Justice Girouard (see Girouard v.

Canada (Attorney General) , 2018 FC 1184 ). The hearing of the appeal before the Federal Court of Appeal was heard on September 30, 2019 (Docket A-394-18), and the decision is currently under reserve [now affd 2019 FCA 252 ]. [ 29 ] On March 8, 2019, Justice Girouard filed his memorandum and his application record on the merits in this matter.

They consist of 44 public volumes comprising 14 851 pages, in addition to a confidential volume. [ 30 ] A notice of motion was filed by the Council on March 18, 2019, for an order under subsection 109(1) of the Federal Courts Rules , SOR/98-106 authorizing it to participate in the proceeding as an intervener. The motion was granted in part by judgment of Justice Noël dated April 9, 2019 (see Girouard v. Canada (Attorney General) , 2019 FC 434 ( Girouard (2019))).

More specifically, the Council was granted permission to intervene only on topics related to the mission and functioning of the Council as well as the procedure followed for inquiries conducted under

section 63 of the Judges Act , R.S.C., 1985, c. J-1 (the Act ), including the application of the Canadian Judicial Council Inquiries and Investigations By-laws, 2015 , SOR/2015-203 (2015 By-laws) and the Handbook of Practice and Procedure of CJC Inquiry Committees (the Handbook).

The Council’s memorandum of fact and law and record were filed on April 16, 2019, which consist of a single volume comprising 303 pages. [ 31 ] On April 30, 2019, the Attorney General of Canada (the AGC) filed his memorandum of fact and law and record, which consist of ten volumes comprising 2 081 pages. [ 32 ] On May 15, 2019, the applicant filed his reply, which consists of five volumes comprising 869 pages. [ 33 ] Finally, on May 22, 2019, the first day of the hearing, the AGC filed his ten-page surreply. [ 34 ] The Attorney General of Quebec did not file a record or make any submissions. [ 35 ] The hearing was held on May 22 and 23, 2019, in Montréal.

During the hearing, the parties filed compendiums and excerpts from statutes and the case law. [ 36 ] A transcript of the hearing was made available on June 5, 2019. C. Background

[37] Before proceeding to the analysis of the issues raised by Justice Girouard, it is important to describe the context in which theseissues arise. I will thus first discuss the importance of judicial independence and then summarize the disciplinary process provided for bythe Act.

(1) The importance of judicial independence [38] The separation of powers among the three branches of government—the legislature, the executive and the judiciary—is one ofthe defining features of the Canadian Constitution (Cooper v. Canada (Human Rights Commission), (SCC), [1996] 3S.C.R. 854, 140 D.L.R. (4th) 193, at paragraph 10). It follows from this separation that no government, stakeholder group, individual oreven another judge can interfere with the way in which a judge makes his or her decision (The Queen v.

Beauregard, (SCC), [1986] 2 S.C.R. 56, (1986), 30 D.L.R. (4th) 481 (Beauregard), at page 69). [39] A judge must be able to properly exercise his or her functions and be able to render a decision without fear of reprisal. Theprinciple of judicial independence is one of the main reasons why a judge holds office during good behaviour. The public must haveconfidence that all decisions are impartial and objective; otherwise, the principle of the rule of law would be eroded. [40] In Conférence des juges de paix magistrats du Québec v.

Quebec (Attorney General), 2016 SCC 39, [2016] 2 S.C.R. 116, theSupreme Court of Canada described [at paragraph 31] three sources of the principle of judicial independence in Canada: 1. The Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982, 1982, c. 11 (U.K.),

Schedule to theConstitution Act, 1982, Item 1) (R.S.C., 1985, Appendix II, No. 5) (Constitution Act), which provides that the Constitution is “similar inPrinciple to that of the United Kingdom” (Beauregard, at page 72); 2. Paragraph 11(

d) of the Canadian Charter of Rights and Freedoms, being

Part I of the Constitution Act, 1982,

Schedule B,Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44] (Charter), which guarantees the accused’s right to a fair trial byan impartial tribunal (Valente v. The Queen, (SCC), [1985] 2 S.C.R. 673, 24 D.L.R. (4th) 161 (Valente), at pages 685–689); and 3.

An unwritten constitutional principle (Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island;Reference re Independence and Impartiality of Judges of the Provincial Court of Prince Edward Island, (SCC), [1997]3 S.C.R. 3, (1997), 1500 D.L.R. (4th) 577, at paragraphs 83–109). [41] In addressing this principle, the Supreme Court of Canada explained in Valente that judicial independence is essential to thecapacity to do justice in a particular case and to public confidence in the administration of justice.

It follows that, without this confidence,the system cannot command the respect and acceptance that are essential to its effective operation. The public must therefore haveconfidence not only in the judicial institution, but also in its main actors, the judges. [42] For a judge, however, judicial independence is a double-edged sword. Indeed, in Moreau-Bérubé v.

New-Brunswick (JudicialCouncil), 2002 SCC 11. [2002] 1 S.C.R. 249 (Moreau-Bérubé), at paragraph 46, the Supreme Court of Canada explained the twobranches of the integrity of the judiciary as follows: ….The integrity of the judiciary comprises two branches which may at times be in conflict with each other.

It relates, first and foremost,to the institutional protection of the judiciary as a whole, and public perceptions of it, through the disciplinary process that allows theCouncil to investigate, reprimand, and potentially recommend the removal of judges where their conduct may threaten judicial integrity(Therrien, supra, at paras. 108-12 and 146-50). Yet, it also relates to constitutional guarantees of judicial independence, which includessecurity of tenure and the freedom to speak and deliver judgment free from external pressures and influences of any kind (see R. v.

Lippé, (SCC), [1991] 2 S.C.R. 114; Beauregard v. Canada, (SCC), [1986] 2 S.C.R. 56; Valente, supra. [43] Thus, the security of tenure of judges is such that, while they are protected from external actors, they must also maintain highstandards of behaviour so as to ensure the public’s confidence in them and the judiciary as a whole. In the words of Philip B. Kurland,the provisions for securing the independence of the judiciary were “not created for the benefit of the judges, but for the benefit of thejudged” (Gratton v.

Canadian Judicial Council, (FC), [1994] 2 F.C. 769, at page 782, (1994), 115 D.L.R. (4th) 81(T.D.) (Gratton), citing Philip B. Kurland, “The Constitution and the Tenure of Federal Judges: Some Notes from History” (1969), 36 U.Chicago L. Rev. 665, at page 698, as cited by Irving R. Kaufman, “Chilling Judicial Independence” (1979), 88 Yale L.J. 681, atpage 690).

As noted by the Supreme Court of Canada in Moreau-Bérubé, at paragraph 59, citing Therrien (Re), 2001 SCC 35, [2001] 2S.C.R. 3 (Therrien), at paragraph 111, litigants are therefore able to require: … virtually irreproachable conduct from anyone performing a judicial function. It will at least demand that they give the appearance ofthat kind of conduct. They must be and must give the appearance of being an example of impartiality, independence and integrity.

Whatis demanded of them is something far above what is demanded of their fellow citizens. [44] It is therefore important that a process be put in place to launch an inquiry into any conduct of an individual judge that isinappropriate and may undermine public confidence in the judicial system. [45] In the early 1970s, the Act was amended to create the Council. The Council’s mission is to promote efficiency and uniformity,and to improve the quality of judicial service, in superior courts.

The Council is responsible for, among other things, dealing with andinvestigating complaints filed against superior court judges and, where applicable, submitting a report to the Minister on the appropriatesanction. [46] Accordingly, Justice Noël’s explanation in his decision regarding the Council’s intervention in Girouard (2019), at paragraph 26includes the following point: I acknowledge at the outset that the [Council] is a special body with a special purpose, and that it is a group composed of chiefjustices and associate chief justices and is chaired by the Chief Justice of Canada.

This in itself gives the [Council] a distinctive and

notable status. The [Council], both collectively and through each of its members, has unique experience. When investigating the conduct of judges in response to a complaint, it has the confidence of those who are under investigation and the public. It also has an extraordinary knowledge and understanding of such matters.

(2) Description of the disciplinary process (

a) The Act [ 47 ]

Part II [sections 58–71] of the Act is entitled “ Canadian Judicial Council ” . The Act provides that the Council may “investigate any complaint or allegation made in respect of a judge of a superior court” ( Act, subsection 63(2) ).

Under subsection 63(1), the Council shall, at the request of the Minister or the attorney general of a province, commence an inquiry as to whether a judge of a superior court should be removed from office, if the judge in respect of whom an inquiry or investigation has been conducted has become incapacitated or disabled from the due execution of the office of judge, notably by reason of having been found guilty of misconduct.

Moreover, subsection 63(3) of the Act provides that the Council may constitute an inquiry committee comprising one or more of its members along with such members of the bar as may be designated by the Minister. [ 48 ] The relevant excerpts from the Act read as follows: Judges Act , R.S.C., 1985, c. J-1 Inquiries concerning Judges Inquiries 63

(1) The Council shall, at the request of the Minister or the attorney general of a province, commence an inquiry as to whether a judge of a superior court should be removed from office for any of the reasons set out in paragraphs 65(2)(

a) to (d). Investigations

(2) The Council may investigate any complaint or allegation made in respect of a judge of a superior court. Inquiry Committee

(3) The Council may, for the purpose of conducting an inquiry or investigation under this section, designate one or more of its members who, together with such members, if any, of the bar of a province, having at least ten years standing, as may be designated by the Minister, shall constitute an Inquiry Committee. 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. … Report and Recommendations Report of Council 65

(1) After an inquiry or investigation under

section 63 has been completed, the Council shall report its conclusions and submit the record of the inquiry or investigation to the Minister. Recommendation to Minister

(2) Where, in the opinion of the Council, the judge in respect of whom an inquiry or investigation has been made has become incapacitated or disabled from the due execution of the office of judge by reason of (

a) age or infirmity, (

b) having been guilty of misconduct, (

c) having failed in the due execution of that office, or (

d) having been placed, by his or her conduct or otherwise, in a position incompatible with the due execution of that office. (

b) The 2015 By-laws [ 49 ] The 2015 By-laws stipulate that when the Chairperson or Vice-Chairperson of the Judicial Conduct Committee receives a complaint or allegation made in respect of a judge of a superior court, the Chairperson or Vice-Chairperson may establish a review panel

if they determine that a complaint or allegation might, on its face, be serious enough to warrant the removal of the judge. The review panel may, in turn, constitute an inquiry committee if it determines that the matter might be serious enough to warrant the removal of the judge (2015 By-laws, subsection 2(1)). Under

section 7 of the 2015 By-laws, the inquiry committee must conduct its inquiry or investigation in accordance with the principle of fairness.

Section 8 then provides that “[t]he Inquiry Committee must submit a report to the Council setting out its findings and its conclusions about whether to recommend the removal of the judge from office.” The four key players of the disciplinary process are therefore the Judicial Conduct Committee’s Chairperson or Vice-Chairperson, the review panel, the inquiry committee and the Council. [ 50 ] In accordance with subsection 9(1) of the 2015 By-laws, the judge being investigated may make written submissions to the Council regarding the inquiry committee’s report, within 30 days after the day on which the inquiry committee’s report is received.

If the Council is of the opinion that the inquiry committee’s report requires clarification or that a supplementary inquiry or investigation is necessary, the Council may “refer all or part of the matter back to the Inquiry Committee with directions” (2015 By-laws,

section 12). Finally, the Council considers the inquiry committee’s report and the judge’s written submissions and presents its report to the Minister (2015 By-laws,

section 13). [ 51 ] The relevant excerpts from the 2015 By-laws read as follows: Canadian Judicial Council Inquiries and Investigations By-laws, 2015 , SOR/2015-203 Establishment and Powers of a Judicial Conduct Review Panel Establishment of Judicial Conduct Review Panel 2

(1) The Chairperson or Vice-Chairperson of the Judicial Conduct Committee, established by the Council in order to consider complaints or allegations made in respect of a judge of a superior court may, if they determine that a complaint or allegation on its face might be serious enough to warrant the removal of the judge, establish a Judicial Conduct Review Panel to decide whether an Inquiry Committee should be constituted in accordance with subsection 63(3) of the Act . … Legal Counsel and Advisors Persons to advise and assist 4 The Inquiry Committee may engage legal counsel and other persons to provide advice and to assist in the conduct of the inquiry. … Principle of fairness 7 The Inquiry Committee must conduct its inquiry or investigation in accordance with the principle of fairness.

Inquiry Committee Report Report of findings and conclusions 8

(1) The Inquiry Committee must submit a report to the Council setting out its findings and its conclusions about whether to recommend the removal of the judge from office. Copy of report and notice to complainant

(2) After the report has been submitted to the Council, its Executive Director must provide a copy to the judge and to any other persons or bodies who had standing in the hearing. He or she must also notify the complainant, if any, when the Inquiry Committee has made the report. Hearing conducted in public

(3) If the hearing was conducted in public, the report must be made available to the public and a copy provided to the complainant, if any. Judge’s Response to Inquiry Committee Report Written submission by judge 9

(1) Within 30 days after the day on which the Inquiry Committee’s report is received, the judge may make a written submission to the Council regarding the report. Extension

(2) On the judge’s request, the Council must grant an extension of time for making the submission if it considers that the extension is in the public interest. … Consideration of Inquiry Committee Report by Council Consideration of report and written submissions 11

(1) The Council must consider the Inquiry Committee’s report and any written submission made by the judge. Who must not participate

(2) Persons referred to in subsection 3(4) and members of the Inquiry Committee must not participate in the Council’s consideration of the report or in any other deliberations of the Council related to the matter. Clarification 12 If the Council is of the opinion that the Inquiry Committee’s report requires a clarification or that a supplementary inquiry or investigation is necessary, it may refer all or part of the matter back to the Inquiry Committee with directions. Council Report Report of conclusions to Minister 13 The Council’s Executive Director must provide the judge with a copy of the report of its conclusions that the Council presented to the Minister in accordance with

section 65 of the Act . (

c) The respective responsibilities of the inquiry committee and the Council [ 52 ] The Act provides that the Council may conduct inquiries or investigations or decide to constitute an inquiry committee to conduct inquiries into complaints or allegations. Once an inquiry committee has been established, it has the power to hear witnesses and to “engage legal counsel and other persons to provide advice and to assist in the conduct of the inquiry” (2015 By-laws,

section 4). [ 53 ] Following its inquiry, the inquiry committee submits its report to the Council. The 2015 By-laws provide that the Council “must consider the Inquiry Committee’s report and any written submissions made by the judge” (2015 By-laws, subsection 11(1)). [ 54 ] Under the Canadian Judicial Council Inquiries and Investigations By-laws , SOR/2002-371 , repealed by SOR/2015-203,

section 15 (2002 By-laws), the judge under investigation could, upon request, make an oral statement before the Council. Under the 2002 By-laws, the Council had also established a policy stating that “[t]he review by the Council is based on the record and report of the Inquiry” (emphasis added).

However, these aspects of the procedure were not included in the new 2015 By-laws or the Handbook in effect during the second inquiry in the present case. [ 55 ] Under the 2015 By-laws, it is the inquiry committee that investigates the complaint or allegation, despite the broad language of the Act , according to which inquiries or investigations should be conducted by the Council or an inquiry committee.

Under both the 2015 By-laws and the Handbook, the inquiry committee undertakes this task. [ 56 ] After the inquiry committee has completed its report and submitted it to the Council, the Council reviews the report and, if it is of the opinion that clarification or supplementary inquiry or investigation is necessary, it may “refer all or part of the matter back to the Inquiry Committee with directions” (2015 By-laws,

section 12). The Council is not required to repeat the inquiry committee’s work or to act as investigator and review all of the evidence. If it were, the process would be unnecessarily long and complex. [ 57 ] However, the Council is the final decision maker when it comes to the recommendation to the Minister. It therefore has to study the inquiry committee’s report and the impugned judge’s submissions to determine the appropriate recommendation. To do so, the Council generally accepts the findings of fact made in the inquiry committee’s report, but applies its own judgment to determine the recommended penalty. This

interpretation is consistent with the

interpretation in the Council’s report to the Minister in Matlow (Canadian Judicial Council, Majority Reasons of the Canadian Judicial Council in the Matter of an Inquiry into the Conduct of the Honourable P. Theodore Matlow (December 3, 2008) ( Matlow )). It is important to summarize and adopt some of the principles set out by the Council therein: • The Council’s role “is to make its own report and recommendation” ( Matlow , at paragraph 48); • The Council is not an appellate tribunal from the inquiry committee.

The inquiry committee is charged with hearing evidence, finding facts and coming to its own conclusions ( Matlow , at paragraph 52); • The Council cannot interfere with factual findings or inferences made by an inquiry committee without good reason. If the Council disagrees with the inquiry committee’s factual findings or inferences, it must explain why ( Matlow , at paragraph 53); and • The Council may decide which sanctions to impose ( Matlow , at paragraph 54). (

d) The inquisitorial role and the truth-seeking process [ 58 ] The Council plays an inquisitorial role in the process of removing a judge. It acts as a bridge between the principle of judicial independence and the governor general’s power to remove a judge.

[59] The Council and the courts have dealt with the Council’s function on many occasions. It has been established that the Council isnot a forum before which two opponents appear for a final verdict on the penalties to be imposed on a judge. Two previous inquirycommittees have had the following to say in this regard: … An inquiry committee does not adjudicate disputes between parties and does not render legally enforceable decisions; its purpose is toconduct an inquiry and report to the Council. Inquiry Committee Established by the Canadian Judicial Council to Conduct a Public Inquiry Concerning Mr.

Justice Robert Flahiff,Decision of Inquiry Committee on Preliminary Motions by Mr. Justice Robert Flahiff (April 9, 1999), at page 10. And: The Inquiry Committee has no power to impose penalties of any kind. It cannot establish civil liability or criminal guilt on the part ofthe judge. The same goes for the Council after receiving the Committee’s report. Thus, whatever the outcome of the process, it is certainthat it does not expose the judge who is the subject of the inquiry to penalties of a criminal nature.

Inquiry Committee of the Canadian Judicial Council Regarding the Conduct of the Honourable Michel Girouard, S.C.J., Reasons forDecisions on Preliminary Motions Rendered from the Bench on February 22, 2017 (April 4, 2017) [reasons for decision on thepreliminary motions], at paragraph 106. [60] The Federal Court has also noted that “[s]ections 63 and 65 of the Judges Act do not confer an adjudicative function on theCouncil or its committees” (Taylor v. Canada (Attorney General), 2001 FCT 1247, [2002] 3 F.C. 91, at paragraph 49, affd 2003 FCA55, [2003] 3 F.C. 3).

This excerpt was quoted by the Federal Court in Douglas v. Canada (Attorney General), 2014 FC 299, [2015] 2F.C.R. 911, at paragraph 117, where the Court provided the following clarification: In this instance, the Inquiry Committee stressed in its May 15, 2012 ruling that its purpose and function were fundamentally differentfrom those of a trial court, and that a judge facing a conduct inquiry is not entitled to, and cannot expect the same procedural safeguardsas a litigant in a trial court.

The process is not that of an adversarial judicial proceeding but inquisitorial in nature, the Committee found.This approach appears to have been consistently taken by each of the Inquiry Committees since the CJC was established. It is alsoconsistent with that stated by the Court in Taylor v.

Canada (Attorney General), 2001 FCT 1247, [2002] 3 F.C. 91, at paragraph 49:“Sections 63 and 65 of the Judges Act do not confer an adjudicative function on the Council or its committees.” [61] Similarly, the Federal Court gave this explanation in Gratton, at page 801: … It is true that a council can cause a committee to carry out an inquiry as to whether a judge should be removed, but ultimately all thatthe Council can do is to “recommend” to the Minister of Justice that the judge be removed from office.

The power to recommend is notthe power to make a binding decision. [Footnote omitted.] [62] Because of the Council’s inquisitorial nature, its procedure is not designed to resolve a conflict between two parties by declaringa single winner. Its goal is simply to seek the truth. Counsel for Justice Girouard recognize this principle in their memorandum, atparagraph 4, when they state that [translation] “in principle, the goal of an inquiry should be the search for the truth”. [63] The Supreme Court of Canada has ruled on the nature of the Council’s mandate on two occasions.

In Therrien, at paragraph 103, citing Ruffo v. Conseil de la magistrature, (SCC), [1995] 4 S.C.R. 267, (1995), 130 D.L.R. (4th) 1 (Ruffo), atparagraph 89, the Supreme Court noted in the following excerpt that the dispute is not adversarial in nature: … My comments in Ruffo, supra, regarding the nature of the mandate assigned to the committee of inquiry provide some insight that isuseful for disposing of this question.

Thus, at paras. 72-74, I said: Accordingly, as the statutory provisions quoted above illustrate, the debate that occurs before it does not resemble litigation in anadversarial proceeding; rather, it is intended to be the expression of purely investigative functions marked by an active search for thetruth. In light of this, the actual conduct of the case is the responsibility not of the parties but of the Comité itself, on which the CJAconfers a pre-eminent role in establishing rules of procedure, researching the facts and calling witnesses. Any idea of prosecution is thusstructurally excluded.

The complaint is merely what sets the process in motion.

Its effect is not to initiate litigation between two parties.This means that where the Conseil decides to conduct an inquiry after examining a complaint lodged by one of its members, the Comitédoes not thereby become both judge and party: as I noted earlier, the Comité’s primary role is to search for the truth; this involves not alis inter partes but a true inquiry in which the Comité, through its own research and that of the complainant and of the judge who is thesubject of the complaint, finds out about the situation in order to determine the most appropriate recommendation based on thecircumstances of the case before it.

Moreover, it is for this purpose and in order to conduct the inquiry for which it is responsible that the Conseil may retain theservices of an advocate, as provided by s. 281 CJA.… This passage clearly shows that the committee’s purpose is not to act as a judge or even as a decision-maker responsible for settling adispute; on the contrary, it is to gather the facts and evidence in order, ultimately, to make a recommendation to the Conseil de lamagistrature.

It also illustrates the intention of avoiding the creation of an adversarial atmosphere between two opponents each seeking toprevail. [Emphasis added; some emphasis in original omitted.] [64] Even though in Ruffo, the Supreme Court of Canada was interpreting the provincial disciplinary procedure under the Courts ofJustice Act, R.S.Q., c. T-16, in my view, the same principles apply to the case at bar. [65] It is therefore clear that the Council’s role is to give the Minister a recommendation, and not to hand down a final judgment on

the issue of sanctions. III. ISSUES [ 66 ] The issues are the following: 1. Was procedural fairness breached, and is the Minister’s request for an inquiry valid? 2. Did the second Inquiry Committee and the Council reverse the burden of proof? 3. Were language rights violated? 4. Are the provisions of the Act creating the Council ultra vires Parliament’s legislative authority? 5. Was the recommendation to remove the judge from office unreasonable? IV. ANALYSIS A. Applicable standard of review

(1) Positions of the parties [ 67 ] This application for judicial review raises issues that engage the Constitution, the

interpretation of the Council’s enabling statute, and procedural fairness. According to Justice Girouard, the standard of review that applies to these three categories is correctness. [ 68 ] The AGC accepts that the applicable standard of review for constitutional questions is correctness. However, the AGC submits that the findings of fact and questions of law concerning the

interpretation of the Act and the 2015 By-laws should be reviewed according to the standard of reasonableness. Regarding the issues of procedural fairness, the AGC believes that it is up to the Court to determine whether the procedure that was followed was fair.

(2) Analysis [ 69 ] It is trite law that the applicable standard of review for constitutional questions is correctness (see Cosgrove v. Canadian Judicial Council , 2007 FCA 103 , [2007] 4 F.C.R. 714 ( Cosgrove ), at paragraph 25 , leave to appeal to S.C.C. refused, 32032 (November 29,

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