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Federal Court of Appeal rejects Justice Michel Girouard’s appeal over Canadian Judicial Council’s recommendation for removal

The long and complex legal saga surrounding Quebec Superior Court Justice Michel Girouard, who is pulling all stops to fend off a Canadian Judicial Council recommendation that he be removed from the bench, is winding down after the Federal Court of Appeal dismissed his objections.

In a unanimous decision, the three-judge panel concluded that the Council’s recommendation for Justice Girouard’s removal was reasonable, that there was no breach of the principles of procedural fairness, that Justice Girouard was given full opportunity to be heard and make submissions, and that while it might have been “desirable” for certain portions of the transcript of the hearings” before the second Inquiry Committee to have been translated the judge was not prejudiced by this.

“The need to uphold public confidence in the administration of justice is the key criterion in these kinds of matters,” said Patrick Taillon, a law professor with an expertise in administrative and constitutional law at the Université Laval.  “The reasons by the Federal Court of Appeal do not necessarily allude to it, but it is implicitly decisive in my opinion.”

The case is taking far too long to settle, said Emmanuelle Bernheim, co-author of the book Applied Judicial Ethics. And it’s not even over yet as Justice Girouard intends to file permission for leave to appeal before the Supreme Court of Canada. “It’s as if he is constantly appealing decisions made by the Council and the courts for not accepting his explanations rather than on the principles” that are at the heart of the case, said Bernheim.

The Council has “repeatedly and consistently” called on the federal government to move forward with legislative reforms that will “provide clarity and improve efficiency to the process,” said Johanna Laporte, director of communications with the Council. Judicial reviews are “enormously” time-consuming and expensive, she added. “All costs, including those incurred by the judge who is at the centre of the inquiry, are fully funded by the taxpayer,” said Laporte. “The judge at issue continues to receive full salary and pension benefits as time passes. This leaves the perception that the judge benefits from these delays. This, to us, is a problem.”

The “unusual and, no doubt, unique case in Canadian history” dates back to November 2012 when then Quebec Superior Chief Justice François Rolland was informed by the Quebec Director of Criminal and Penal Prosecutions that a drug trafficker who became an informant identified Justice Girouard as being one his clients. The Chief Justice filed a complaint with the Council to request a review of Justice Girouard’s conduct, adding that a video identifies Justice Girouard “allegedly carrying out a transaction, presumed to be a cocaine purchase,” 13 days before his appointment to the bench on September 2010.

In October 2013, the Council established a review committee, whose sole function is to determine whether the complaint might be serious enough to warrant the removal of the judge, to consider the complaint and have a preliminary inquiry conducted by outside counsel. The review panel concluded that if the allegations were substantiated they would be serious enough to warrant the removal of the judge. Five months later, in February 2014, the Council established a three-member inquiry committee. The outside counsel identified eight allegations but some were withdrawn and others yet were amended. The inquiry committee unanimously found that the allegation regarding Justice Girouard’s alleged purchase of an illicit substance had not been proven.

But two out of three inquiry committee members identified six contradictions, inconsistencies and implausibilities that raised “deep and serious concerns” over Justice Girouard’s credibility and integrity. They found that Justice Girouard had placed himself in a position incompatible with the due execution of the office of judge, and recommended his removal. The Council subsequently in its report to the Minister of Justice of Canada accepted the inquiry committee’s finding that the allegation over the purchase of an illicit substance was not proven on a balance of probabilities but refused to act on the majority recommendation that Justice Girouard should be removed from office because of a lack of candour and transparency in his testimony. “Council takes this approach because the judge 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,” stated the Council’s April 2016 report to the Minister of Justice.

But less than two months later, the federal and Quebec justice ministers wrote to the Council requesting a new inquiry because it was concerned by the findings of misconduct made by the majority of the inquiry committee. When a Minister of Justice or a provincial attorney general requests an inquiry into the conduct of a judge, as per subsection 63(1) of the Judges Act, the Council must in principle conduct an inquiry without having to initially establish a review committee.

A second inquiry committee, this time with five members, was launched to examine four allegations against Justice Girouard, including that he failed to cooperate and testify with transparency and forthrightness, and attempted to mislead the first inquiry committee. It was also alleged that Justice Girouard falsely stated before the inquiry committee that he never used cocaine when he was a lawyer.

On November 2017, the second inquiry committee recommended in an 86-page report that Justice Girouard be removed from office because three allegations had been established on a strong balance of probabilities by “clear and convincing” evidence. It noted that Justice Girouard did not testify in a “frank and transparent manner, that it was ‘sometimes necessary to repeatedly, and unnecessarily, reformulate the questions before he finally saw fit to answer them’ and that he behaved like an ‘uncooperative and obstinate witness,’” noted Federal Court of Appeal Justice Yves de Montigny in a unanimous decision in Girouard v. Canada (Attorney General), 2020 FCA 129.

Four months later, in February 2018, 20 of the 23 Council judges adopted the findings of the second inquiry committee and concluded that Justice Girouard had become incapacitated or disabled from the due execution of the office of judge by reason of misconduct. Three Council members dissented on the ground that Justice Girouard’s right to a fair hearing had not been respected because some of the Council members could not understand and evaluate the entire record because of their unilingualism. Transcripts of the evidence presented before the first and second inquiry committees were not translated and distributed in both official languages to all of the members.

Justice Girouard fought back, and filed 24 applications for judicial review before the Federal Court, which dismissed his objections. He suffered the same fate before the Federal Court of Appeal.

Before the Appeal Court, Justice Girouard challenged the applicable standards of review, called into question the reasonableness of the lower court’s decision, maintained that the two inquiries dealt with the same subjects, and asserted that his right to procedural fairness were breached as was his language rights.

Justice Girouard claimed that the Federal Court did not correctly apply the standard of reasonableness with regard to the Council’s decision. He contended that the Federal Court did not give “sufficient reasons” for its decision and did not take into account the legal and factual constraints, as identified by the recent SCC decision in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, which may limit the range of options available to the Council in making its decision. But, said Justice de Montigny, “there is no doubt” that constitutional and procedural fairness issues are subject to the standard of correctness while the Council’s findings on questions of fact or of interpretation of its enabling statute must be assessed by the standard of reasonableness.

Justice de Montigny also dismissed Justice Girouard’s contention that the lower court decision was unreasonable, underscoring that the appellant did not present any arguments to demonstrate that the Council’s recommendation for removal was unreasonable.

“Rather, what the appellant faults the Federal Court and the Council for, in short, is not accepting his arguments or his explanations,” said Justice de Montigny in the 55-page decision. “The Council had complete authority to consider, weigh, and ultimately reject the explanations given by Justice Girouard. That is precisely its role.”

Justice Girouard also “vigorously” argued that the principles of procedural fairness were not respected in the second inquiry, asserting that there was a violation of the principle of the separation of functions. The appellant pointed out that there were two judges who sat on both the review panel for the first complaint and the inquiry committee for the second complaint, that another judge was part of a review committee and subsequently chaired the deliberations of the second panel of the Council, and that 13 Council members participated in both panels of the Council. He also affirmed that the second inquiry was contrary to the principle of estoppel, which prevents the reopening of cases.

Those arguments too did not sway the Appeal Court as it rests “on the erroneous premise that the first and second inquiries are one or the same, or that the second inquiry was simply an extension of the first inquiry.” The complaints were different in nature, concerned different allegations and covered different periods, found Justice de Montigny. At issue in the first inquiry was the alleged purchase by Justice Girouard – while he was still a lawyer – of an illicit substance while the second inquiry dealt with his efforts to mislead the first inquiry committee. Though the review panel did raise doubt over Justice Girouard’s credibility after he provided “troubling” explanations of what transpired in the video, the role of the review panel is not come to a conclusion over whether the Council should recommend that a judge be removed, noted Justice de Montigny. Its role instead is to determine whether an inquiry committee should be formed to fully investigate all of the allegations made against a judge.

“Although there may be some overlap between the two, and the first inquiry was triggered and served as a backdrop for the second, I am satisfied that a reasonable person properly informed of the circumstances would not believe that the decision-makers involved in the second complaint were incapable of making a fair decision,” held Justice de Montigny.

Justice Girouard’s position that his right to procedural fairness were breached on several occasions too was shelved. He argued that he was the victim of a reversal of the burden of proof at each phase of the second inquiry, but once again he failed to demonstrate how, noted Justice de Montigny. “In fact, Justice Girouard’s arguments are based on a misunderstanding of the role of the second inquiry committee and the Council,” said Justice de Montigny. “The Council’s role is not to hear the evidence again, unless there are palpable and overriding errors, but rather to make its own recommendation in light of the second inquiry committee’s factual findings. Aside from his disagreement with the findings made by the second inquiry committee on its report, Justice Girouard did not identify any errors that would require the Council to set them aside.”

Justice Girouard’s arguments that he suffered a breach of procedural fairness because his language rights were violated “merits closer examination” but still failed to sway the Appeal Court. Though it is open to any member of the Council to request a translation of excerpts, the specific mechanism for obtaining such a translation is unclear, said Justice de Montigny. “Perhaps it would even be desirable for all chief justices to have a working knowledge of both official languages,” he added. “However, the ideal model, or its evocation, cannot suffice as a basis for concluding that the process was actually followed was unfair.”

The Council should in fact review its policies for translation, said Bernheim. “If the procedures were more clearly set, we would know what to expect and what mechanisms are in place to obtain translations of the more pertinent passages,” said Bernheim. “The Council should address that issue to prevent a similar situation from occurring.”

According to Taillon, Justice Girouard did in fact raise several fundamental arguments. What vexes Taillon is that the two justice ministers refused to accept the conclusions reached by the Council following the report issued by the first inquiry committee as it could undermine judicial independence. “Public confidence could be shaken by this lack of deference by the justice ministers over the conclusions reached by the Council,” said Taillon. “However, it must be presumed that public confidence would have been even more shaken if Justice Girouard walked away without any consequences because the courts have concluded that his removal should be confirmed.”

But Bernheim takes comfort from the fact that a second inquiry committee was launched because it demonstrates that there was no complacency, and serves to highlight the importance of upholding public confidence in the administration of justice. “If judges do not collaborate with an inquiry, that could be viewed as an ethical breach,” said Bernheim, adding that she has never come across a case where a judge faced removal from the bench because he was not cooperative or credible during testimony at an inquiry launched by the Council.

Justice Girouard has already given his lawyers permission to file for leave to appeal before the nation’s highest court, said Gérald Tremblay, counsel at McCarthy Tétrault LLP in Montreal.

“It’s as if they reversed the burden of proof,” said Tremblay. “They were never able to prove that he committed an illegal act. Never. Everything was shelved except they didn’t like his testimony before the Council’s committees. They are auto generating complaints. If reforms are to be made, it must be to reassure the judiciary that the system is fair.”

This story was originally published in The Lawyer’s Daily.

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