Quebec judge may be a step closer to being removed from the bench

The inquiry was instigated after the Quebec Judicial Council made the extraordinary recommendation of removing Court of Quebec judge Peter Bradley from the bench. In a 3-2 majority decision published on February 2017 the judicial inquiry committee acknowledged that the proposed sanction was harsh but underscored that it was deserved because Judge Bradley was reprimanded for a similar transgression in 2014. This marks the seventh time since 1978 that the judicial council proposed a judge’s dismissal from the bench.

“The Council recognizes that the law gives it few alternatives: a reprimand or the recommendation for removal from the bench,” noted judicial council in the 22-page ruling. “However before a judge who clearly refuses to exercise the duties assigned to him, presiding over the small claims division, and consequently refusing to perform the function for which he was appointed, only one conclusion can be reached: removal.”

The Quebec Judicial Council, which examines complaints made against judges and conducts inquiries if it deems it necessary, has 16 members, including 11 judges, a justice of the peace, two lawyers and two members chosen from the general public.

Judge Bradley’s imbroglio arose 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 to proceed, Judge Bradley dismissed a request for the filing of a document, adjourned the case and divested himself.

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.

Judge Bradley defended his stance, arguing that under the new Code of Civil Procedure (Code), a judge has the power and duty by law to seek conciliation between the parties. “It’s in the public interest, not in the personal interest, not in the interest of the Court, but in the public interest as provided by the preliminary provision of the Code, and that obviously applies to small claims court as well,” said Judge Bradley during his testimony before the judicial council.

But the judicial council notes that the Code states that a judge must try to encourage conciliation under appropriate circumstances but “not at the expense of the parties who want to be heard.” In other words, the new Code encourages alternative dispute resolution methods but it does not abolish holding trials, added the council.

“The interpretation by the judge over his ‘power’ or his ‘duty’ over conciliation, to the point that he argued with the parties over this subject and discouraged the plaintiff, just like he did in the first case in which his conduct was examined, and to refuse to hear their dispute and judge constitutes breaches of articles 1 and 6 of the Judicial code of ethics which obliges a judge to render justice within the framework of the law and to perform the duties of his office diligently,” said the judicial council. Members of the majority included the Associate Chief Judge Danielle Côté of the Court of Québec, Montreal lawyer Odette Jobin-Laberge and a member of the public.

The judicial council also found Judge Bradley’s comments towards the complainant to be “displaced and offensive,” and in violation of the code of conduct.

While agreeing with the majority that Judge Bradley breached articles 1 and 6 of the Judicial code of ethics,  Judge Martin Hébert, who is also Chair of the Quebec Professions Tribunal, held that the sanction was not proportionate to the contraventions. He wonders if it’s time to review the disciplinary measures that can be imposed on judges. Associate Chief Judge Pierre Audet of the Court of Québec also found the sanction too harsh.

That is the verdict shared by a Quebec law professor. The professor noted that Judge Bradley made a mistake in his interpretation of the new Code of Civil Procedure, and did not commit an egregious act. “Removal from the bench should be reserved to the most serious cases of misconduct by a judge,” told me the law professor. “Is holding a bad interpretation of the Code or any other law sufficient to remove a judge? Not in my opinion.”

Under article 279 of the Quebec Courts of Justice Act (Act), if the judicial council establishes that the complaint is justified, it can either reprimand the judge at fault or make a recommendation to the Quebec Minister of Justice and Attorney General to file a motion with the Court of Appeal. Under article 95 of the Act, the provincial government may remove a judge only after the Quebec Court of Appeal issues a report following its own inquiry that was launched at the behest of the justice minister.

The inquiry by the Quebec appeal court will be heard by a panel of five judges, including Chief Justice Nicole Duval Hesler. The procedure that it will follow however has yet to be defined by the appeal court and counsel. That’s because the Act does not spell out either in the legislation or in the regulations the procedures the appeal court must follow when it conducts an inquiry that may lead to the removal of a judge, noted Martine Valois, a law professor at the Université de Montréal.

“Under the Act a judge can be removed from the bench only after the Quebec appeal court conducts an inquiry,” explained Valois. “But the Act does not stipulate the procedures that the appeal court must follow when conducting its inquiry.”

Also up in the air is how much weight the appeal court will give to the findings and recommendation made by the Quebec judicial council. “That’s a difficult question,” said the law professor. “But I think that the appeal court will heed to the spirit of the Act and begin an altogether new inquiry.”