Court orders CJC to release documents requested by judge facing drug allegation

Federal Court Justice Simon Noël said that the Canadian Judicial Council must produce documents related to accusations against Justice Michel Girouard, a Quebec judge who has been under review since a 2012 allegation that he purchased drugs.

The Aug. 29 decision, 2018 FC 865, did not award costs and dismissed the CJC’s application to stay the order to produce the documents, and ordered that the CJC must provide a certified list of documents within 20 days. The CJC may still challenge the disclosure of secret or privileged documents by submitting the documents in a sealed envelope to the court registry, the order said.

At the centre of the August 2018 decision was whether the CJC and its inquiry committee were defined by the Federal Court of Appeal as federal boards, commissions or other tribunals.

The decision is the latest turn in a case that’s twisted through the courts over the past few years, after a November 2012 complaint alleged that before Girouard became a judge, Girouard had been captured on video “in the process of purchasing an illicit substance” and was identified as a former client by a drug trafficker turned informant, Noël wrote.

In February 2018, the CJC recommended that Girouard be removed from office as part of a report to the Minister of Justice. The report concluded that Girouard’s “misconduct had undermined the integrity of the judicial system” and “had become incapacitated and disabled from the due execution of the office of judge,” the decision said, although three dissenting members opposed Girouard’s removal on the basis that his right to a fair hearing was not respected.

Girouard’s applications for judicial review requested minutes and other documents from the CJC inquiry committee, arguing it was the decision of the courts, not the CJC, which documents relevant to the applications.

In a case like this, the application for judicial review would “determine whether a federal tribunal had the jurisdiction to make the order that it did,”’ says Gavin MacKenzie, a partner and co-founder of Mackenzie Barristers who was not involved in the case but deals with civil appeals and professional responsibility issues at his Toronto-based litigation boutique. “The jurisdictional issue can arise either because of the limits placed on the statutory mandate of the tribunal or because of procedural unfairness or alleged procedural unfairness.”

The CJC made an argument that it was beyond judicial review as its inquiry committee was deemed a “superior court,” which can only be challenged if there is an “express right of appeal to a court of appeal,” a classification that Noël deemed “peculiar.”

“I cannot agree with the CJC’s position,” Noël wrote in the reasons, which summed to more than 100 pages. “It is undeniable that a report recommending the removal of a judge has a serious impact on that judge, professionally and personally, and on his or her family. It is inconceivable that a single body, with no independent supervision and beyond the reach of all judicial review, may decide a person’s fate on its own.”

In the decision, Noël analyzed Parliament’s intent in creating the CJC, as well as a 2014 case, Douglas v Canada (Attorney General), 2014 FC 299, which dealt with the federal court’s jurisdiction.

Noël’s concluding remarks also make note of the conduct of the CJC — conduct that Noël said raised the question of whether the CJC “was pressuring the Minister to proceed with Justice Girouard’s removal without regard for the judicial proceedings that are legitimately before this Court.” In particular, Noël focused on comments CJC made to the press and the way it had dealt with the 2014 case.

MacKenzie says that such comments are unusual and that, although he doesn’t take issue with Noël’s decision, the comments may come off as gratuitous or overly critical of the CJC.

“There was a time, certainly, when . . . the rule of the day was that lawyers shouldn’t comment on cases that are before the court, but that has been eroded over the years, as there has been an increasing recognition of the desirability of the public understanding issues of public importance. And it’s not as if a litigant or lawyer for a litigant is attempting to influence a jury, or something along those lines. I think [the CJC] was simply commenting on the Canadian Judicial Council’s legal position which, in my view, was a very responsible position to advance.”

In an emailed statement provided to Legal Feeds in French, Louis Masson, one of the lawyers from Joli-Coeur Lacasse that represented Girouard, declined comment, indicating he wished to reserve comment for the court.

“Of course, it is true that, in our society, the position of judge requires exemplary conduct, but is this a reason to render it subject to a single investigative body and to eliminate any possibility of recourse against the decision resulting from the inquiry? In my opinion, it is not,” Noël wrote. “However prestigious and experienced a body may be, it is not immune from human error and may commit a major violation of the principles of procedural fairness that only an external tribunal, such as the Federal Court in this case, can remedy. . . . Therefore, as per the fundamental principles of our democracy, all those who exercise public power, regardless of their status or the importance of their titles, must be subject to independent review and held accountable as appropriate. This also goes for the CJC and the chief justices who make up its membership.”