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Decision affirms power of courts to review the discipline of judges

The Federal Court court said it wouldn't hear the Canadian Judicial Council's argument that its recommendations should be immune to scrutiny

December 13, 2019  The Canadian Press

OTTAWA – The authority of the Federal Court to review disciplinary measures meted out to judges was effectively affirmed Thursday when the Supreme Court of Canada declined to delve into the matter.

The top court announced it wouldn’t hear the Canadian Judicial Council’s argument that its recommendations should be immune to scrutiny from the Federal Court.

The dispute flowed from a long-running effort to have a Quebec Superior Court judge, Michel Girouard, removed from the bench over his behaviour.

The judicial council, composed of senior judges from across Canada, was created by Parliament almost half a century ago. It has authority over federally appointed judges and is the forum to which any Canadian can turn if he or she objects to a judge’s conduct.

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A council recommendation as to whether a judge should be removed from the bench is referred to the federal justice minister.

A 2012 complaint alleged Girouard, while he was still a lawyer, had bought illegal drugs from a client. An inquiry committee rejected the allegations but cited contradictions and implausibilities in Girouard’s testimony.

A second complaint about Girouard’s credibility during the initial proceedings led a majority of judges on the council to recommend last year that he should lose his job.

Girouard asked the Federal Court to set aside the recommendation he be tossed from the bench.

The judicial council argued the court lacked authority to review the matter, maintaining the council is not a federal board, commission or other tribunal subject to such scrutiny.

Federal Court Justice Simon Noel firmly disagreed, ruling that no one was above the law.

“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,” Noel wrote in his decision.

“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.”

The Federal Court of Appeal upheld the ruling in May, saying the judicial council’s actions and decisions are administrative in nature and therefore open to court scrutiny.

The appeal-court decision prompted the judicial council to seek a hearing in the Supreme Court. Following its usual practice, the top court gave no reason Thursday for declining to hear the case.

In response, the council said it hopes the Liberal government will move quickly to draft legislative changes to bring “added clarity and efficiency” to the process by which complaints about judicial conduct are reviewed.

“We have not yet seen the government’s proposed legislation,” said council spokeswoman Johanna Laporte. “However, I do know that everyone involved recognizes the need to improve and clarify the process.”

Supreme Court Chief Justice Richard Wagner has sought reforms to the judicial conduct process that require changes to the Judges Act, noted Rachel Rappaport, a spokeswoman for Justice Minister David Lametti.

“Our government is working with the Canadian Association of Superior Court Judges and the Canadian Judicial Council to determine the best means of legislative reform to improve the accountability, transparency, fairness and efficiency of the existing process,” she added.

In an October ruling, Justice Paul Rouleau of the Federal Court found the council’s recommendation concerning Girouard’s removal was justified and transparent.

He wrote that in light of the entire record before the council, “it was reasonable to conclude that Justice Girouard was guilty of misconduct, and that the integrity of Justice Girouard was irremediably compromised to the point that the public’s confidence in the judiciary was undermined.”