A Quebec judge who 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 has been sanctioned by the Quebec Court of Appeal.
The 66-page ruling in Bradley (Re), 2018 QCCA 1145 reveals the need for the Quebec government to increase options available to the appellate court and the Quebec Judicial Council to deal with judicial misconduct of a provincially appointed judge, and for the council itself to enact changes to enhance procedural fairness, according to judicial ethics experts.
“The first takeaway from the ruling is that the realm of judicial ethics is evolving, and in certain regards it is still seeking to find the boundaries of its application such as what are the criteria that justify removal as opposed to a reprimand,” noted Pierre Noreau, a law professor at the Université de Montréal and co-author of “Applied Judicial Ethics.”
Court of Quebec Judge Peter Bradley got himself into trouble after he refused to hear a dispute between two neighbours over $472.45 worth of damage to a fence on January 2015. Judge Bradley, presiding over municipal court, strongly beckoned the neighbours to settle the case, without hearing any evidence. But when the neighbours refused and insisted on having the hearing proceed, Judge Bradley dismissed a request for the filing of a document, adjourned the case and recused himself from the case.
The plaintiff then lodged a complaint before the judicial inquiry committee over the judge’s refusal to hear the matter, his insistence to negotiate a settlement, and his sharp and hostile tone during the proceedings. The majority of an inquiry committee of the Quebec Judicial Council recommended in 2017 Judge Bradley’s dismissal.
Judge Bradley sought a judicial review, defended his stance and essentially attacked the validity of the proceedings, arguing that because the decision to adjourn the hearing was a judicial act it was not subject to disciplinary review. He also contested the make-up of the inquiry committee for including non-judges and a member of the public, took issue with the fact that some of the inquiry’s committee members were not required to swear an oath guaranteeing their independence and impartiality, and argued that the inquiry committee’s decision was unreasonable. Moreover, Judge Bradley alleged a violation of procedural fairness. He maintained that the possibility that he could be dismissed from office was never debated before the inquiry committee. He also argued that under the new Code of Civil Procedure (Code), a judge has the power and duty by law to seek conciliation between the parties.
The majority of the five-judge panel of the Quebec Court of Appeal dismissed Judge Bradley’s application for judicial review and found that Judge Bradley unduly pressured the parties to settle their dispute, adjourned without cause a hearing, and breached his duty of courtesy due to the tone and nature of his remarks. His misconduct breached sections 1, 6 and 8 of the Judicial Code of Ethics.
But the appeal court also held that a recommendation for dismissal made by the majority of the inquiry committee was too harsh even though Judge Bradley was reprimanded by the judicial council for a similar transgression in 2014.
Heeding guidance from the Supreme Court of Canada in Therrien, (Re), 2001 SCC 35, Quebec Court of Appeal Chief Justice Nicole Duval Hesler wrote that “it must therefore be concluded that breaches of ethics subject to a reprimand can reach a certain level of seriousness without reaching a level which would prevent a judge from making amends and remaining in office. Such is this case.”
In a sharp and biting dissenting opinion Appeal Court Justice Allan Hilton would have recommended to the Quebec Minister of Justice that Judge Bradley be removed from office. “The inevitable effect of the majority opinion will be properly perceived as giving more emphasis to the interests of the judge than to the restoration of public confidence in the administration of justice, which should be the Court’s overriding concern,” said Justice Hilton.
Emmanuelle Bernheim, a law professor at the Université du Québec à Montréal and co-author of “Applied Judicial Ethics,” said that Justice Hilton’s dissenting opinion and conclusions raise legitimate concerns. “What is at stake here is how the public will perceive this decision because Judge Bradley was already reprimanded before for the same kind of conduct, and so it puts into question how the current system is able to adapt to these situations,” said Bernheim.
In all fairness, point out both Bernheim and Noreau, the appeal court and the inquiry committee were hampered by Quebec legislation. With the exception of New Brunswick and Quebec, legislation in other provinces provide for greater options to deal with judicial misconduct of a provincially appointed judge. In Quebec, the Courts of Justice Act provides for only two sanctions – a reprimand or removal from the bench.
“There is certainly place for more options,” noted Noreau. “Increasing the options available such as intermediary sanctions between a reprimand and removal is an avenue that must absolutely be explored.”
So too should Quebec appeal court’s Justice Marie-France Bich’s suggestion to split the inquiry’s committee hearings in two so that the question of misconduct is dealt with separately from the sanction, added Bernheim.
“It is fundamentally unfair to ask someone who has not yet been declared of any offence whatsoever (criminal, penal, disciplinary or ethical) to make necessarily speculative submissions respecting a sanction that could be imposed in the event that person were found guilty,” wrote Justice Bich.
Bernheim believes that is a welcome suggestion that should be applied to cases where the inquiry committee recommends removal from office.
“The Judicial Council very rarely recommends removal so there is little case law,” said Bernheim. “Is this something the Council should consider? Absolutely. It would be very rewarding for the inquiry committee to hold debates on these matters.”
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