Canadian Judicial Council should hold two separate inquiries into conduct of Quebec judge, say experts

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.

Continue reading “Canadian Judicial Council should hold two separate inquiries into conduct of Quebec judge, say experts”

Quebec Court of Appeal sanctions judge

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.”

Court of Quebec Judge acted as a private lender before being appointed

A recently appointed Court of Quebec judge has lent more than $9 million in loans over the past few years, according to an investigation by a French-language newspaper.

Judge Manlio Del Negro, who was formally inducted as a Court of Quebec judge yesterday during a ceremony held at the Montreal courthouse, allegedly provided more than 45 loans from 2006 to 2017 before being appointed as a judge this spring, according to the Journal de Montréal.

The revelations raise ethical questions, according to Véronique Hivon, a Parti Québécois member and a former Minister responsible for the Die in Dignity commission, a commission about the right for a terminally-ill patient to end their own life. The Conseil de la magistrature du Québec, a provincial body that supervises the conduct of judges, should investigate the matter to determine whether a lawyer who was a private lender is compatible with the role of a judge, added Hivon.

But Judge Del Negro’s “commercial activities” while he was a lawyer did not render him ineligible to be a judge, asserts the Court of Quebec in a press release. A lawyer appointed judge is legally required to refrain from any activity which is not compatible with his functions, added the Court of Quebec.

According to the Court of Quebec communiqué, Judge Del Negro “revealed his situation” at the first meeting he held with Chief Justice Lucie Rondeau and confirmed his commitment to “quickly take steps” to withdraw from his commercial activities and comply with the requirements of a judge.

“Aware that time must be granted to each new judge to take the necessary steps from the transition from his previous situation to his new functions, the Court is satisfied by those taken by Judge Del Negro,” said the press release.

But the Journal de Montréal reports that as of June 5, 2017, he was still a creditor in four dossiers, where allegedly the mortgage guarantees amounted to $800,000, with interest rates ranging from six to 12 per cent.

Judge Del Negro, who graduated from the Université de Sherbrooke, was admitted to the Quebec Bar in 1984. He was a Montreal criminal lawyer who founded in 1989 the law firm Del Negro Polnicky Perron, which later became Del Negro et Associés. He was appointed a Court of Quebec judge on March 27, 2017.

In 2013 Judge Del Negro donated $50,000 to his alma mater, half of which was given towards modernizing the law library, the other half to create a scholarship fund bearing his name to help grad students studying criminal and penal law.

Judge Del Negro is overseeing a case in which former Montreal Canadien winger Zack Kassian is expected to testify in the case involving 22-year old Alison de Courcy-Ireland who is charged with impaired driving causing bodily harm.

Request for recusal highlights need for judicial guidelines over social media

A Quebec judge who was asked by defense lawyers to recuse herself from presiding over a multi-defendant drug trial because many of her “friends” on Facebook are Crown prosecutors highlights the need for a comprehensive guideline to help judges navigate the world of social media and developing technologies, assert legal observers. Continue reading “Request for recusal highlights need for judicial guidelines over social media”

Quebec Court judge castigated by his peers, again

Nearly a year after being castigated by the provincial magistrates’ council for overstepping his boundries by incarcerating a police officer for 45 minutes who ostensibly lacked respect, Quebec Court Judge Claude Provost was reprimanded again by his peers.

The Conseil de la Magistrature, whose mandate includes ensuring compliance with judicial ethics, reproached Judge Provost in a 33-page ruling for behaving as a prosecutor, asking questions in an aggressive tone more fitting of a cross-examination, and failing to be objective.

Continue reading “Quebec Court judge castigated by his peers, again”