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Recommendation to remove Quebec justice from bench reasonable, court rules

Written by on October 10, 2019

TORONTO — A recommendation that a Quebec Superior Court justice be removed from the bench was reasonable, Federal Court ruled on Thursday in a long-running and complex judicial saga.

In reaching its conclusion, the court dismissed numerous objections Justice Michel Girouard had raised about the Canadian Judicial Council’s recommendation to the minister of justice.

“The council’s recommendation was justified, its decision-making process was transparent and its decision falls within a range of possible, acceptable outcomes,” Deputy Judge Paul Rouleau wrote in his decision. “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.”

The case arose from a complaint in November 2012 that alleged Girouard, then a lawyer, had bought illegal drugs from a client, who was later charged with drug trafficking and gangsterism. A video of the transaction was introduced as evidence.

Ultimately, an inquiry committee rejected the allegations as unproven even though it concluded the judge had deliberately tried to hide the truth, prompting a second inquiry.

The second inquiry into Girouard’s behaviour during the initial proceedings led 20 of the 23 judges on council to recommend in February last year that Girouard lose his job — something that can only happen with Parliament’s approval. The three dissenting judges said he had not had a fair hearing because some council members were unilingual.

Girouard, appointed to Superior Court in 2010, asked Federal Court to set aside council’s removal recommendation. Among his complaints, he argued he was treated unfairly and that his language rights were not respected.

In his judgment, Rouleau noted the complexity of the proceedings, pointing out that Girouard made 24 separate applications for judicial review of the second inquiry and unsuccessfully sought a stay of the proceedings. He also filed a public memorandum of 44 volumes comprising 14,851 pages on the merits of the case and one confidential volume.

“The case took on an unexpected scope and appearance of a conflict between two opposing parties,” Rouleau said. “Nevertheless, it is important to remember that the role of the council and purpose of the process are to handle complaints and to search for the truth in order to ultimately provide a recommendation to the minister.”

While procedural protections are necessary and appropriate, these were respected, Rouleau said.

For example, Rouleau rejected Girouard’s argument that he should have been allowed to appear before council made its recommendation to the minister. In effect, Rouleau said, the justice was arguing to attend and participate in council’s deliberations.

Rouleau also said Federal Court had found no issue related to language rights, and that the concerns of the three dissenting members were unfounded.

Girouard’s lawyer, Gerald Tremblay, said it was “a bit early” to comment on the judgment. The Canadian Judicial Council also had no immediate comment.

Separately, the council is hoping to argue before the Supreme Court of Canada that it is not itself subject to judicial scrutiny. The council, comprising at least 17 chief or associate chief justices, maintains its own internal appeal mechanism is more robust than an appeal to the nine-judge Supreme Court.

Federal Court Judge Simon Noel, in a decision upheld on appeal, said no one — not even the country’s chief justice who chairs the judicial council — is above the law.

Council spokeswoman Johanna Laporte said the issues are constitutional in nature and relate directly to a key aspect of judicial independence, security of tenure.

“Council believes that any review of recommendations in respect of the removal of a judge must recognize the constitutional dimensions of such recommendations,” Laporte said on Thursday. “Council seeks clarification of those constitutional principles from the Supreme Court.”

 

Colin Perkel, The Canadian Press