An inquiry committee by the Canadian Judicial Council that will determine whether the alleged misconduct of a Quebec Superior judge warrants removal from office should conduct two independent inquiries to examine the two sets of allegations against him, according to judicial ethics experts.
In two concurrent but separate decisions, a five-member judicial conduct review panel concluded an inquiry committee should be established because the allegations against Quebec Superior Justice Gérard Dugré “might be serious enough” to warrant the removal from office. One allegation contends that Justice Dugré used intemperate and inappropriate language during a family law proceeding while the other alleges he took too long to render judgment.
The inquiry committee, constituted under the Judges Act, is expected to “establish the facts” on the two matters and then present a report that sets out its findings and conclusions. The names of the uneven number of members, the majority of which are Council members, will be made public over the coming weeks once the federal minister of justice decides whether or not to designate one or more members of the Bar to be part of the inquiry committee. In the past, justice ministers acted within 50-to-60 days upon reception of the notice to appoint a member to the inquiry committee.
Just as the composition of the inquiry committee has yet to be determined so is the nature of the inquiry, said Norman Sabourin, the executive director and senior general counsel of the Canadian Judicial Council. It remains to be seen whether the inquiry committee will hold separate inquiries into each allegation or whether they will hold an inquiry that will examine both allegations.
“The inquiry committee are masters of the procedure,” said Sabourin. “The important thing to keep in mind, and this is found on the handbook of practice and procedure of the inquiry committee, is that as long as the inquiry committee ensures that the judge is fully aware of the allegations against him or her, and that the judge is given a full opportunity to address those allegations, it is entirely appropriate for the inquiry committee to look at all of a judge’s conduct.”
The possibility that the inquiry committee may hold a single inquiry into the two separate and distinct allegations against Justice Dugré perplexes both Pierre Noreau and Emmanuelle Bernheim, co-authors of the book “Applied Judicial Ethics.”
“It’s rare that a judge is the subject of two simultaneous complaints,” noted Noreau, a law professor at the Université de Montréal. “I don’t think there is a precedent for holding a single inquiry into two separate complaints. I think that in this case they should be dealt with separately because they are two distinct situations, each of which will argued and discussed. One deals a lot with conduct, courtesy, and the intrusive character of his conduct at court while the other deals with questions of delays, which is altogether different in nature.”
There is a legitimate concern that the inquiry committee will be unable to hear, discuss and analyze both allegations in a substantive manner if it holds a single inquiry into the matters, particularly since each allegation in and of itself may possibly warrant the removal from office, added Bernheim. As well, there is a risk that there will be “an interaction between both allegations, and is it that desirable?” rhetorically asked Bernheim, a law professor at the Université du Québec à Montréal.
“I wonder what influence it can have on the members of the inquiry committee to hear evidence from both allegations,” said Bernheim. “One has to be very careful to allow the judge to benefit from his right to full answer and defence, which means that the inquiry committee should conduct two processes. I don’t see how it can be otherwise.”
But Sabourin counters that in the past other allegations have surfaced against a judge who was the subject of an existing inquiry. “Now it may be, and it has been found in the past that a lot of these allegations were totally without merit, but it is absolutely within the prerogative of an inquiry committee to say we’d like to look at these other allegations.”
Justice Dugré landed in hot water following two separate complaints lodged within two weeks of each other in the late summer of 2018 by two Quebecers. In the first case Constantin Solomentsev filed a complaint on August 2018 before the CJC after Justice Dugré allegedly took more than nine months to issue a decision in a divorce and family-related matter as opposed to six months as dictated by the Quebec Code of Civil Procedure. In correspondence with the CJC over the matter, Quebec Superior Court Chief Justice Jacques Fournier said that the issuance of timely rulings was a “chronic problem” for Justice Dugré. He added that Justice Dugré made some “progress,” but that it was still an issue that has not been resolved in spite of a mentor.
It is the not the first time that a complaint was made against Justice Dugré over delays in issuing decisions. In 2012, the CJC imposed on Justice Dugré a mentor to help him “to change his behaviour and render judgments in the allotted time” following a complaint made against him by then Quebec Superior Court Chief Justice François Rolland. In 2014, a second complaint was lodged by Justice Rolland against Justice Dugré over the same issue. Though an inquiry committee was not instituted, a 2015 review panel expressed their concerns over Justice Dugre’s conduct.
“The Review Panel is of the opinion that the dossier as it is presently constituted, and particularly because it is the third complaint that alleges Justice Dugré does not issue judgments in a timely manner, and because there is a ‘chronic problem’ to respect the time limits set by the law, litigants and the public may lose confidence in the justice system,” said the review panel in Dossier CCM: 18-301. The review panel recommended an inquiry committee further investigate the matter.
The other complaint, lodged on September 2018 following a hearing in which Justice Dugré was asked to decide over a request to a change in school of a child, alleges that the judge was discourteous, failed to let the parties provide their views, and made inappropriate and inacceptable remarks that could be “reasonably perceived to constitute a form of intimidation,” according to the review panel. The review panel found after hearing a tape of the proceedings that Justice Dugré told the parents that “we could put the child in a boarding school and that’ll solve the problem.” On another occasion he said the “magic solution” was for the separated parents to get back together until the child was 18. At another time he told the parents to “Let’s put him in boarding school. Give him up for adoption. That’s the other solution I recommend.” At one point, the mother broke down and cried after Justice Dugré’s remarks. The couple, after a break, reached an agreement between themselves.
Justice Dugré justified his conduct and his remarks by emphasizing he has a statutory obligation to foster conciliation between the parties. He considered his remarks to be metaphors, whose goal was to increase the awareness of the parents to take into the consideration the interests of the child. He said that it was also intended to lighten up the atmosphere and foster conciliation, according to the review panel.
According to article 9 of the Quebec Code of Civil Procedure, judges are supposed to facilitate conciliation, but only if the parties request or consent to it, or when it is appropriate, pointed out Michel Tétrault, a Sherbrooke lawyer who has written a book on Quebec family law. He notes that there is no training or specific guides for judges over what is a conciliation and the steps that should be followed.
It’s not the first time a Quebec judge has gotten into trouble over conciliation. Court of Quebec Judge Peter Bradley was sanctioned by the Quebec Court of Appeal after he refused to hear a quarrel between neighbours and emphatically insisted that they negotiate a settlement before adjourning without cause a hearing over which he should have presided the same day.
“Conciliation and family mediation require a fine touch as emotions run very high,” said Tétrault. But in this case it appears that “there’s a harshness in his remarks, almost an editorial over separation, that a litigant is not likely prepared to hear coming from a judge. We expect him to listen and to be empathetic, and there was not much in this case.”
The review panel had similar harsh words against Justice Dugré.
“There is nothing, according to the review panel, that is metaphorical nor humorous in the remarks made by Justice Dugré,” said the review panel in a 20-page stinging decision that concluded the matter is sufficiently serious that it may warrant the removal from office. “They are simply gratuitous, impertinent and inappropriate.”
Bernheim and Noreau point out that judicial ethics have evolved. Conduct that may have been tolerated years ago or that would have been the subject of a reprimand no longer is, said Bernheim. “Judges are now the target of social expectations,” said Noreau. “Social expectations towards judges are increasing and that means that their conduct must increasingly conform to that which we expect of a decider.”
Calls to Justice Dugré’s counsel were not returned.
Judges who have been the subject of an inquiry committee have had their assignments suspended by their chief justice “every time in the past,” said Sabourin.
This story was originally published in The Lawyer’s Daily.