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Therrien (Re), [2001] 2 S.C.R. 3, 2001 SCC 35

 

Judge Richard Therrien, Q.C.J.                                                                      Appellant

 

v.

 

The Minister of Justice                                                                                 Respondent

 

and

 

The Attorney General of Quebec                                                                 Respondent

 

and

 

The Attorney General for Ontario,

the Attorney General for New Brunswick,

Office des droits des détenus and

Association des services de réhabilitation

sociale du Québec                                                                                          Interveners

 

Indexed as:  Therrien (Re)

 

Neutral citation:  2001 SCC 35.

 

File No.:  27004.

 

2000:  October 2; 2001:  June 7.

 

Present:  McLachlin C.J. and L’Heureux‑Dubé, Gonthier, Iacobucci, Bastarache, Binnie and Arbour JJ.

 


on appeal from the court of appeal for quebec

 

Appeal – Supreme Court of Canada – Jurisdiction – Report of inquiry panel of Quebec Court of Appeal – Judicial ethics – Report of Court of Appeal recommending removal of Judge of Court of Québec – Whether Supreme Court has jurisdiction to hear appeal from report of Court of Appeal – Whether report a “judgment” within meaning of Supreme Court Act – Supreme Court Act, R.S.C. 1985, c. S-26 , ss. 2(1) , 40(1)  – Courts of Justice Act, R.S.Q., c. T-16, s. 95.

 

Courts – Jurisdiction – Quebec Court of Appeal – Superior Court – Legal ethics – Court of Appeal hearing request by Minister of Justice concerning removal of Judge of Court of Québec – Judge concerned applying to Superior Court to have report of committee of inquiry of Conseil de la magistrature quashed and challenge constitutionality of provision of provincial statute – Whether Superior Court has jurisdiction to hear application and motion – Whether Court of Appeal has exclusive jurisdiction to decide questions of law and jurisdiction in course of inquiry – Courts of Justice Act, R.S.Q., c. T-16, s. 95.

 

Courts – Judges – Legal ethics – Conseil de la magistrature – Jurisdiction – Whether Conseil de la magistrature may examine conduct of judge even if breach of ethics occurred prior to appointment.

 


Constitutional law – Independence of judiciary – Security of tenure of judges – Provincial statute providing for removal of judge of provincial court without address of legislature – Whether provincial statute satisfies requirements of judicial independence – Constitution Act, 1867 , preamble – Courts of Justice Act, R.S.Q., c. T-16, s. 95.

 

Constitutional law – Independence of judiciary – Security of tenure of judges – Provincial statute providing that government may remove judge only on report of Court of Appeal at request of Minister of Justice – Whether judicial office is secure against discretionary interference by Executive – Courts of Justice Act, R.S.Q., c. T-16, s. 95.

 

Administrative law – Natural justice – Duty to act fairly – Right to be heard – Complaint made to Conseil de la magistrature against Judge of Court of Québec – Committee of inquiry of Conseil recommending judge be removed – Whether judge had sufficient notice of findings that might be made by committee of inquiry – Whether judge had right to separate hearing on question of sanctions.

 

Administrative law – Natural justice – Duty to act fairly – Right to impartial hearing – Complaint made to Conseil de la magistrature against Judge of Court of Québec – Conseil bound to follow recommendations of committee of inquiry – Committee of inquiry recommending judge be removed – Whether decision-making structure of Conseil and committee of inquiry violates maxim delegatus non potest delegare – Whether presence of persons not members of judiciary at preliminary stage of disciplinary process violates institutional dimension of structural principle of judicial independence – Whether functioning of committee of inquiry, in particular role of committee counsel, raises reasonable fear of institutional bias.

 


Civil rights – Equality rights – Information relating to employment – Criminal record – Candidate for judicial office – Whether selection committee may question candidate regarding criminal record – Whether question infringes Charter of Human Rights and Freedoms – Charter of Human Rights and Freedoms, R.S.Q., c. C-12, ss. 10, 18.1, 18.2, 20.

 

Constitutional law – Equality rights – Information relating to employment – Criminal record – Candidate for judicial office – Whether procedure initiated against judge concerned infringes equality rights guaranteed by Canadian Charter – Canadian Charter of Rights and Freedoms , s. 15 .

 

Courts – Judges – Judicial ethics – Sanctions – Removal of judge of provincial court – Failure by judge to disclose criminal record when candidate for office of judge – Report of Court of Appeal recommending revocation of commission of judge – Whether sanction appropriate.

 

Criminal law – Effect of granting pardon – Meaning and effect of pardon granted under Criminal Records Act – Whether pardon expunges conviction retroactively – Criminal Records Act, R.S.C. 1970 (1st Supp.), c. 12, s. 5.

 


In 1970, the appellant was sentenced to imprisonment for one year for unlawfully giving assistance to four members of the Front de libération du Québec.  After serving his sentence, he continued his legal studies.  From 1976 to 1996, the appellant practised law, and in 1987, on his application, the Governor in Council granted him a pardon under s. 5 (b) of the Criminal Records Act .  Between 1989 and 1996, the appellant submitted his candidacy in five selection procedures for judicial appointments.  In 1991 and 1993, he revealed his previous convictions and stated that he had been pardoned and his candidacy was rejected because of his criminal record.  In the last selection procedures, he did not disclose his criminal record, or even that he had been pardoned.  In September 1996, as a result of the favourable recommendation of the selection committee, the Minister of Justice recommended that he be appointed as a Judge of the Court of Québec.  In late October, the Associate Chief Judge of the Court of Québec and chairman of the selection committee which had recommended the appellant’s candidacy learned that he had been in trouble with the law.  She advised the Minister of Justice of the situation and stated that the appellant had failed to disclose this information to the committee.  The Minister lodged a complaint with the Quebec Conseil de la magistrature.  A committee of inquiry of the Conseil found that the complaint was justified and recommended that removal procedures be initiated.  The Conseil then recommended that the Minister of Justice initiate the process to remove the appellant by making a request to the Court of Appeal in accordance with s. 95 of the Courts of Justice Act (“C.J.A.”).

 


Concurrently with that proceeding, the appellant challenged the removal process and filed an application for judicial review in the Superior Court seeking to have the committee’s inquiry report, the recommendation and the order of the Conseil de la magistrature suspending him declared void and of no effect, and seeking to have the request to the Court of Appeal dismissed.  At the same time, he filed a motion for declaratory judgment challenging the constitutionality of s. 95.  In response to the application and motion, the Minister of Justice filed two motions to dismiss in which he claimed that the Court of Appeal had jurisdiction to dispose of the issues in conducting the inquiry referred to it pursuant to s. 95.  The Superior Court dismissed the motions to dismiss.  The Minister appealed the decisions.  The Court of Appeal allowed the two appeals and dismissed the application for judicial review and motion for declaratory judgment filed by the appellant.  In 1998, five judges of the Court of Appeal submitted a report to the Minister of Justice following their inquiry, in which they recommended that the Government revoke the appellant’s commission.

 

Held:  The appeal should be dismissed.

 

(1)  Jurisdictional Questions

 


Because the requirements of s. 40(1)  of the Supreme Court Act  (“S.C.A. ”) have been met, the appellant can appeal to this Court from a report of the inquiry panel of the Court of Appeal made pursuant to s. 95 C.J.A., recommending to the government that he be removed.  Specifically, the report of the Court of Appeal is a final or other judgment within the meaning of ss. 2(1)  and 40(1)  S.C.A.  The expressions “judgment” and “final judgment” in s. 2(1)  both contrast the concept of a decision with the concept of mere opinion or advice.  The jurisdiction of this Court under that provision is therefore connected to the fact that the subject matter of the appeal is in the nature of a decision.  In these circumstances, it depends on the nature and effect of the jurisdiction exercised by the Court of Appeal in respect of judicial ethics when it conducts the proceeding set out in s. 95 C.J.A.  A careful study of the law and its context and purpose leads to the conclusion that the report of the Court of Appeal is in the nature of a decision.  Section 95 does not require that the Court of Appeal make a report of an inquiry, but a report made after inquiry.  The report is a judicial report and, moreover, one made by the highest court in the province.  Its purpose is not simply to assist the Minister in making a decision; rather, it is an essential condition of the proceeding that may lead to the removal of a provincially appointed judge.  The aim of the report is legally to determine a situation, and the wording of s. 95 does not restrict the Court of Appeal to making recommendations.  The fact that the report is judicial and in the nature of a decision is fundamental to the constitutionality of the proceeding as a whole.  Having regard to the fact that the report of the Court of Appeal is substantially in the nature of a decision, this is sufficient to satisfy the definitions of “judgment” or “final judgment” in s. 40(1)  S.C.A.  and to enable this Court to review it.

 

The Superior Court did not have jurisdiction to consider the application for judicial review and motion for declaratory judgment made by the appellant.  Under art. 31 of the Code of Civil Procedure, the Superior Court hears in first instance every suit not assigned to another court by a specific provision of law.  Where a request is properly made to the Court of Appeal under s. 95 C.J.A., it is precisely the intent of the legislature that it determine the matter to the exclusion of any other court.  This interpretation is consistent with the legislature’s intention of complying with the constitutional requirements regarding tenure of provincial court judges by assigning responsibility to the Court of Appeal, exclusively and in the first instance, for conducting an inquiry and making a report on the conduct of a judge.  Any other conclusion would be inimical to the proper administration of justice, since it would encourage a multiplicity of proceedings before various tribunals.  In the case at bar, because the Court of Appeal had before it the request made by the Minister under s. 95 C.J.A. before the appellant filed his application and motion in the Superior Court, the appellant’s case had been properly referred to the Court of Appeal to the exclusion of any other court.  The Superior Court therefore had no jurisdiction to act in the circumstances.

 


The Conseil de la magistrature had jurisdiction to review the appellant’s conduct even though the ethical breach occurred before he was appointed.  The Conseil had jurisdiction over the person who was the subject of the complaint and over the subject matter of the complaint.  Whether or not the appellant’s actions were prior to his appointment is not relevant under the C.J.A.  In the interests of judicial independence, it is also important that discipline be dealt with in the first place by peers.  The committee of inquiry of the Conseil is responsible for preserving the integrity of the whole of the judiciary.  Accordingly, it must be able to examine the past conduct of a judge if, as in this case, it is relevant to the assessment of his candidacy, having regard to his capacity to carry out his judicial functions, and to determine, based on that, whether it may reasonably undermine public confidence in the incumbent of the office.  In conclusion on this point, the process of selecting persons for appointment as judges is so closely related to the exercise of the judicial function that it cannot be dissociated from it.

 

(2)  Constitutional Questions

 


Section 95 C.J.A. is constitutional.  The removal of a judge of a provincial court without an address of the legislature is not contrary to the principle of judicial independence embodied in the preamble to the Constitution Act, 1867 .  Regarding security of tenure, it does not afford greater protection to judges of the Provincial Court than s. 11 (d) of the Canadian Charter of Rights and Freedoms  in criminal matters.  The functions of the judge are essentially the same whether or not the judge is hearing criminal matters.  Requiring that the removal of a provincial court judge follow the procedure of an address of the legislature, as provided by s. 99  of the Constitution Act, 1867  for superior court judges, may indeed be an ideal, but that procedure is not necessary in order to comply with the Constitution.  Furthermore, the jurisdiction of provincial legislatures over provincial courts derives expressly from s. 92(14)  and (4)  of the Constitution Act, 1867 .  In exercising their jurisdiction, and within the limitations of the constitutional requirements, provincial legislatures are authorized to establish separate rules for the functioning of the various judicial councils they establish.  Lastly, although the government makes the final decision regarding removal, it “may remove a judge only upon a report of the Court of Appeal” (s. 95 C.J.A.).  The use of that wording indicates a real intention on the part of the legislature that the Executive be bound by a finding of the Court of Appeal exonerating a judge.  Because the Executive is bound by a finding exonerating a judge, the judges of the Provincial Court are secure against any discretionary interference by the Executive.  Section 95 is consistent with the requirements of judicial independence.

 

(3)  Substantive Issues

 


The Conseil de la magistrature and its committee of inquiry are subject to the rules of procedural fairness.  Essentially, the duty to act fairly has two components:  the right to be heard and the right to an impartial hearing.  The nature and extent of the duty may vary with the specific context and the various fact situations dealt with by the administrative body, as well as the nature of the disputes it must resolve.  In this case, the right to be heard was respected.  First, the appellant had sufficient notice.  The committee of inquiry of the Conseil de la magistrature did not hold a general inquiry; it examined a specific complaint made against a particular judge.  That judge was therefore a party to the proceedings from the outset and was informed of the allegations made against him.  In this case, the appellant received a copy of the complaint in accordance with s. 266 C.J.A. and the respondents filed a further pleading in which they detailed the subject matter of the complaint.  In the circumstances, the appellant was well aware of all of the findings of misconduct that might be made against him in the final report.  Second, having regard to s. 275 C.J.A., which authorizes the committee of inquiry of the Conseil de la magistrature to make rules of procedure or practice that are necessary for the carrying out of its duties, the committee was fully justified, out of concern for efficiency, in refusing to hold a separate hearing on the question of sanctions.  The committee made a genuine effort to allow the appellant to make representations by twice giving him an opportunity to be heard on the question of the various applicable sanctions.

 


The right to an impartial hearing was also respected.  Although the Conseil de la magistrature does not exercise its decision-making authority itself since it is bound by the conclusions drawn by the committee, decision-making structures of the Conseil and its committee do not violate the maxim delegatus non potest delegare.  The terms used in the C.J.A. are mandatory and reflect a clear intent on the part of the legislature to authorize delegation of the powers of inquiry and decision regarding the justification for a complaint to a committee consisting of five persons chosen from among the members of the Conseil (ss. 268, 278 and 279).  Even though 4 of the 15 members of the Conseil de la magistrature are not judges, the presence of persons who are not members of the judiciary at a preliminary stage of the disciplinary process does not violate the collective or institutional dimension of the structural principle of judicial independence in that only a body composed of judges may recommend the removal of a judge.  The report and recommendations made by a committee of inquiry of the Conseil are merely the first stage of the process put in place by the C.J.A.  The final recommendation to remove a provincial court judge is within the exclusive jurisdiction of the highest court in the province.  In these circumstances, the composition of the committee of inquiry of the Conseil de la magistrature complies with the structural principle of judicial independence and the rules of procedural fairness.  Lastly, the functioning of the committee of inquiry does not raise a reasonable apprehension of institutional bias.  Counsel for the committee does not play the role of judge and party.  The committee’s purpose is to gather the facts and evidence in order, ultimately, to make a recommendation to the Conseil de la magistrature.  When he examined and cross-examined witnesses, counsel was not acting as a prosecutor, but rather was providing the committee with assistance in carrying out the mandate assigned to it by the statute.  Where there are no judge or parties, counsel for the committee cannot be in a conflict of interest.  Because the committee’s recommendation is not final with respect to the outcome of the disciplinary process, the role played by the independent counsel neither violates procedural fairness nor raises a reasonable apprehension of bias in a large number of cases in the mind of an informed person viewing the matter realistically and practically and having thought the matter through.

 


The pardon granted to the appellant under the Criminal Records Act  did not mean that he could deny his criminal record and answer “no” to the question regarding  his “trouble with the law”, which the selection committee asks people qualified for appointment as judges.  An objective analysis of the Act does not support the argument that the pardon retroactively wipes out his conviction.  While a pardon does not make the past go away, it expunges consequences for the future.  The integrity of the pardoned person is restored and he or she need not suffer the effects associated with the conviction in an arbitrary or discriminatory manner.  Even if the opinion subjectively formed by the appellant had to be considered, the Court of Appeal held that the appellant’s record contained sufficient evidence tending to establish that he was aware of the meaning and effect of the Act and that he deliberately subjectively ignored them.

 

The decision by the Minister of Justice to lodge an ethics complaint against the appellant was based primarily, perhaps exclusively, on the appellant’s failure to disclose to the members of the selection committee that he had been in trouble with the law.  Even though that decision was based in part on the existence of a criminal record, it did not infringe the appellant’s equality rights under s. 15(1)  of the Canadian Charter .  Although there was differential treatment between the appellant and others who did not have a criminal history, and assuming, but without deciding the issue, that a criminal record is an analogous ground of discrimination for the purposes of s. 15(1) , the Minister’s decision cannot be regarded as discriminatory when we consider the relevant contextual factors.  The Minister took into account the appellant’s situation as a whole, as well as the situation of people who come before the court and are entitled to the highest degree of integrity, impartiality and independence on the part of the members of the judiciary in whom they place their confidence.

 


The appellant could have been asked the question about being in trouble with the law by the members of the selection committee without infringing the provisions of the Quebec Charter.  Section 18.1 provides that no one may, in an employment interview, require a person to give information regarding any ground mentioned in s. 10 unless the information is useful for the application of s. 20.  It is uncertain whether judicial office is included in the expression “employment” in s. 18.1 and a criminal record, even one for which a pardon has been granted, is not included in the grounds listed in s. 10.  Even if the information related to one of the grounds listed in s. 10, the question would still be permitted in the selection process for persons qualified for appointment as judges since the distinction is based on the aptitudes or qualifications required for judicial office, which is deemed non-discriminatory by s. 20 of the Quebec Charter.  The existence of a police file containing information relating to the appellant’s criminal record is a supplementary source of information, but it cannot replace the selection committee and did not justify the appellant in not answering the question asked by the committee.

 

Section 18.2 of the Quebec Charter, which provides that no one may dismiss, refuse to hire or otherwise penalize a person in his employment owing to the mere fact that he was convicted of a penal or criminal offence, if the offence was in no way connected with the employment or if the person has obtained a pardon for the offence, cannot prevent the appellant from being removed.  A careful examination of the conditions that must be met if that section is to apply clearly indicates that this provision does not apply to members of the judiciary.  Judicial office is not an employment within the meaning of s. 18.2, by reason of the history of the judiciary and the nature, characteristics and requirements of the office.  As well, the recommendations made by the Conseil de la magistrature and the Court of Appeal were not made owing to the mere fact that the appellant had been convicted of a criminal offence; rather, they were made solely because he had failed to disclose his criminal record to the selection committee.  Lastly, the legislature, which was concerned about preserving the independence, impartiality and integrity of the judiciary, cannot have intended to deprive the government of its discretion to refuse to vest judicial authority in candidates whose past would be likely to undermine public confidence in its justice system.

 


Revocation of the appellant’s commission is the appropriate sanction.  The public’s confidence in its justice system, which every judge must strive to preserve, is at the very heart of this case.  The Court of Appeal made a thorough study and a balanced assessment of the appellant’s situation and focused its decision on upholding the integrity of the judicial office.  In the circumstances, and since it is the judicial forum appointed by the legislature to make determinations concerning the conduct of a judge, and a recommendation for removal in this case would not amount to arbitrary interference by the Executive in the exercise of the judicial function, the sanction that the Court of Appeal chose to impose should not be reviewed.  The appellant’s failure to be candid and to disclose relevant information when he was a candidate for the office of judge sufficiently undermined public confidence that he was incapable of performing the duties of his office.

 

Cases Cited

 


Applied:  Valente v. The Queen, [1985] 2 S.C.R. 673; distinguished:  Thomson v. Canada (Deputy Minister of Agriculture), [1992] 1 S.C.R. 385; Canada (Minister of Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. 391; R. v. Kelly, [2001] 1 S.C.R. 741, 2001 SCC 25; Thomas v. The Queen, [1980] A.C. 125; considered:  Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3; Ruffo v. Conseil de la magistrature, [1995] 4 S.C.R. 267; Beauregard v. Canada, [1986] 2 S.C.R. 56; R. v. Généreux, [1992] 1 S.C.R. 259; referred to:  Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835; A. (L.L.) v. B. (A.), [1995] 4 S.C.R. 536; Lady Davis v. Royal Trust Co., [1932] S.C.R. 203; Wartime Housing Ltd. v. Madden, [1945] S.C.R. 169; R. v. W. (G.), [1999] 3 S.C.R. 597; Luitjens v. Canada (Secretary of State) (1992), 9 C.R.R. (2d) 149; St. Anne Nackawic Pulp & Paper Co. v. Canadian Paper Workers Union, Local 219, [1986] 1 S.C.R. 704; Weber v. Ontario Hydro, [1995] 2 S.C.R. 929; Maurice v. Priel, [1989] 1 S.C.R. 1023; R. v. Lippé, [1991] 2 S.C.R. 114; Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police, [1979] 1 S.C.R. 311; Cardinal v. Director of Kent Institution, [1985] 2 S.C.R. 643; Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; Syndicat des employés de production du Québec et de l’Acadie v. Canada (Canadian Human Rights Commission), [1989] 2 S.C.R. 879; 2747-3174 Québec Inc. v. Quebec (Régie des permis d’alcool), [1996] 3 S.C.R. 919; Canada (Attorney General) v. Canada (Commission of Inquiry on the Blood System), [1997] 3 S.C.R. 440; Pezim v. British Columbia (Superintendent of Brokers), [1994] 2 S.C.R. 557; Peralta v. Ontario, [1988] 2 S.C.R. 1045, aff’g (1985), 49 O.R. (2d) 705; Reference as to the Effect of the Exercise of the Royal Prerogative of Mercy upon Deportation Proceedings, [1933] S.C.R. 269; Reference re Resolution to amend the Constitution, [1981] 1 S.C.R. 753; Dubois v. The Queen, [1985] 2 S.C.R. 350; Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497; Commission des droits de la personne du Québec v. Cie Price Ltée, J.E. 81-866; Commission des droits de la personne du Québec v. Ville de Beauport, [1981] C.P. 292.

 

Statutes and Regulations Cited

 

Act of Settlement, 12 & 13 Will. 3, c. 2.

 

An Act to amend the Courts of Justice Act, S.Q. 1941, c. 50, s. 2.

 

An Act to amend the Criminal Records Act and to amend another Act in consequence, S.C. 2000, c. 1, s. 4.

 

Canadian Charter of Rights and Freedoms , ss. 7 , 11 , 15 .

 

Charter of Human Rights and Freedoms, R.S.Q., c. C-12, ss. 4, 5, 10 [am. 1982, c. 61, s. 3], 18.1 [idem, s. 5], 18.2 [idem; am. 1990, c. 4, s. 133], 20 [am. 1982, c. 61, s. 6; am. 1996, c. 10, s. 1].

 


Code of Civil Procedure, R.S.Q., c. C-25, ss. 25, 31, 33 [am. 1992, c. 57, s. 179], 46.

 

Constitution Act, 1867 , preamble, ss. 92(4) , (14) , 96  to 100 , 99 .

 

Courts of Justice Act, R.S.O. 1990, c. C.43, s. 51.8.

 

Courts of Justice Act, R.S.Q., c. T-16, ss. 9 [am. 1988, c. 21, s. 12], 10, 86, 95 [am. 1988, c. 21, s. 30], 96, 248, 256 [am. 1988, c. 21, s. 56], 260, 262 [am. 1980, c. 11, s. 99; am. 1988, c. 21, s. 57; am. 1988, c. 74, s. 8; am. 1989, c. 52, s. 138], 263 [am. 1988, c. 21, s. 58], 266, 268 [idem, s. 60; am. 1990, c. 44, s. 24], 269, 272, 275, 277, 278, 279 [am. 1980, c. 11, s. 101; am. 1988, c. 21, s. 62; c. 74, s. 9], 281.

 

Criminal Code, R.S.C. 1985, c. C-46 , ss. 690 , 748 , 748.1 , 749 .

 

Criminal Records Act, R.S.C. 1970, c. 12 (1st Supp.), s. 5.

 

Criminal Records Act, R.S.C. 1985, c. C-47 , ss. 5 , 6 , 7 , 8 .

 

Inquiries Act, R.S.C. 1985, c. I-11 , s. 6 .

 

Interpretation Act, R.S.Q., c. I-16, s. 57.

 

Judges of the Provincial Court Act, R.S.N.S. 1989, c. 238, s. 6(4).

 

Judicature Act, R.S.A. 1980, c. J-1, ss. 32.6(2)(h), 32.7(2), 32.91.

 

Judicial Code of Ethics, R.R.Q. 1981, c. T-16, r. 4.1, ss. 2, 4, 5, 10.

 

Professional Code, R.S.Q., c. C-26, ss. 45 [am. 1994, c. 40, s. 40], 116 [idem, s. 103].

 

Provincial Court Act, R.S.B.C. 1996, c. 379, ss. 28(1), 29.

 

Provincial Court Act, R.S.M. 1987, c. C275, ss. 39.1(1)(h), 39.4.

 

Provincial Court Act, R.S.N.B. 1973, c. P-21, ss. 6.11(4)(d), 6.11(8).

 

Provincial Court Act, R.S.P.E.I. 1988, c. P-25, s. 10(7).

 

Provincial Court Act, 1991, S.N. 1991, c. 15, ss. 22, 23.

 

Provincial Court Act, 1998, S.S. 1998, c. P-30.11, ss. 62(2)(a), 62(7).

 

Public Order Regulations, 1970, SOR/70-444, ss. 3, 4(c), 5.

 

Regulation respecting the procedure for the selection of persons apt for appointment as judges, R.R.Q. 1981, c. T-16, r. 5, ss. 7, 18.

 

Supreme Court Act, R.S.C. 1985, c. S-26 , ss. 2(1)  “judgment”, “final judgment”, 40(1) [am. 1990, c. 8, s. 37 ], 53.

 

Territorial Court Act, R.S.N.W.T. 1988, c. T-2, s. 31.8.


Territorial Court Act, S.Y. 1998, c. 26, ss. 49(3)(d), 50(2).

 

War Measures Act, R.S.C. 1952, c. 288.

 

Young Offenders Act, R.S.C. 1985, c. Y-1 , s. 36(1) .

 

Authors Cited

 

Beetz, Jean.  Présentation du premier conférencier de la Conférence du 10e anniversaire de l’Institut canadien d’administration de la justice, propos recueillis dans Mélanges Jean Beetz.  Montréal:  Thémis, 1995.

 

Brunelle, Christian.  “La Charte québécoise et les sanctions de l’employeur contre les auteurs d’actes criminels œuvrant en milieu éducatif” (1995), 29 R.J.T. 313.

 

Canada.  Proposal for Reform of the Criminal Records Act  –  Explanatory document by the Solicitor General of Canada, Recommendation No. 7.  Ottawa:  Solicitor General of Canada, July 20, 1991.

 

Canadian Judicial Council.  Ethical Principles for Judges.  Ottawa:  Canadian Judicial Council, 1998.

 

Côté, Pierre-André.  The Interpretation of Legislation in Canada, 3rd ed. Scarborough, Ont.:  Carswell, 2000.

 

Dumont, Hélène.  “Le casier judiciaire:  criminel un jour, criminel toujours?”, in Les Journées Maximilien-Caron 1995, Le respect de la vie privée dans l’entreprise:  de l’affirmation à l’exercice d’un droit.  Montréal:  Université de Montréal, 1996.

 

Dumont, Hélène.  Pénologie -- Le droit canadien relatif aux peines et aux sentences.  Montréal:  Thémis, 1993.

 

Friedland, Martin L.  A Place Apart:  Judicial Independence and Accountability in Canada.  Ottawa:  Report prepared for the Canadian Judicial Council, 1995.

 

Gall, Gerald L.  The Canadian Legal System.  Toronto:  Carswell, 1977.

 

Glenn, H. Patrick.  “Indépendance et déontologie judiciaires” (1995), 55 R. du B. 295.

 

Morissette, Yves-Marie.  “Figure actuelle du juge dans la cité” (1999), 30 R.D.U.S. 1.

 

Nadin-Davis, R. Paul.  “Canada’s Criminal Records Act :  Notes on How Not to Expunge Criminal Convictions” (1980-81), 45 Sask. L. Rev. 221.

 

Ouellette, Yves.  Les tribunaux administratifs au Canada:  Procédure et preuve.  Montréal:  Thémis, 1997.

 

Oxford English Dictionary, 2nd ed., vol. XIX.  Oxford:  Clarendon Press, 1989.

 


Quebec.  Commission des droits de la personne et des droits de la jeunesse.  Lignes directrices pour l’application de l’article 18.2, 12 mai 1988.

 

Russell, Peter H.  The Judiciary in Canada:  The Third Branch of Government.Toronto:  McGraw-Hill Ryerson, 1987.

 

Singleton, Thomas J.  “La discrimination fondée sur le motif des antécédents judiciaires et les instruments anti-discriminatoires canadiens” (1993), 72 Can. Bar Rev. 456.

 

APPEAL from a report of the inquiry panel of the Quebec Court of Appeal, [1998] R.J.Q. 2956, 21 C.R. (5th) 296, [1998] Q.J. No. 3105 (QL), recommending the removal of a judge of the Court of Québec, and from a decision of the Quebec Court of Appeal, [1998] R.J.Q. 1392, [1998] Q.J. No. 1666 (QL), setting aside judgments of the Superior Court, [1998] Q.J. No. 180 (QL), J.E. 98-433, dismissing motions to dismiss applications for judicial review and for declaratory judgment.  Appeal dismissed.

 

Jean-Claude Hébert, Sophie Bourque and Christian Brunelle, for the appellant.

 

Benoît Belleau, Robert Mongeon and Monique Rousseau, for the respondents.

 

Lori Sterling and Sean Hanley, for the intervener the Attorney General for Ontario.

 

Cedric L. Haines, Q.C., for the intervener the Attorney General for New Brunswick.

 


Julius H. Grey and Elisabeth Goodwin, for the interveners the Office des droits des détenus and the Association des services de réhabilitation sociale du Québec.

 

English version of the judgment of the Court delivered by

 

Gonthier J.

 

I.  Introduction

 

1                                   This appeal raises very important and for the most part novel questions.  They are essentially of three types.  First, it addresses questions concerning the jurisdiction of this Court and the courts below in relation to the disciplinary procedure for provincially appointed judges put in place by the Courts of Justice Act, R.S.Q., c. T-16 (“C.J.A.”).  Second, it challenges the constitutionality of s. 95 C.J.A. as regards the principle of the independence of the judiciary.  Finally, it raises three sets of allegations relating to compliance with the rules of procedural fairness by the Conseil de la magistrature of Quebec and its committee of inquiry, the application of certain provisions of the Canadian Charter of Rights and Freedoms  (“Canadian Charter ”) and the Charter of Human Rights and Freedoms, R.S.Q., c. C‑12 (“Quebec Charter”) that protect a person who has been pardoned, and the fitness of the sanction imposed on the appellant in the present proceedings.

 

II.  Facts

 


2                                   In October 1970, Quebec was shaken by a serious political crisis.  Richard Therrien was then a minor and a first-year law student in the Université de Montréal law faculty.  He lived close to the faculty in his sister Colette’s apartment on Queen Mary Road.  Neither the brother nor the sister was at that time formally a member of the Front de libération du Québec (“F.L.Q.”), an association declared to be unlawful by s. 3 of the Public Order Regulations, 1970, SOR/70-444, enacted under the War Measures Act, R.S.C. 1952, c. 288. Richard Therrien’s sister was, however, a friend of Jacques Rose.  From October 17 to November 6, 1970, Paul Rose, Jacques Rose, Francis Simard and Bernard Lortie, the four F.L.Q. members associated with the kidnapping of the minister Pierre Laporte, hid in that apartment.  Richard Therrien’s involvement in these events was quite minor: he stayed in the apartment with them for only a few nights, preferring to keep his distance.  At one point, he went to get materials so that they could build a hideout, and at another time he mailed three letters at the request of one of these persons.

 

3                                   On November 26, 1970, Richard Therrien was charged with illegally and unlawfully giving assistance to these four individuals with intent thereby to prevent, hinder and interfere with their apprehension, trial or punishment, knowing or having reasonable cause to believe that they were members of the unlawful association, contrary to s. 5 of the Public Order Regulations, 1970.  He was also charged with communicating statements on behalf of the said association, contrary to s. 4(c) of the Regulations.  On April 14, 1971, he pleaded guilty and on the following day Judge Antonio Lamer, then of the Superior Court (Criminal Division), sentenced him to imprisonment for one year.

 


4                                   After serving his sentence, Richard Therrien continued his legal studies and received his licence.  In the spring of 1974, the examining committee of the Barreau du Québec, which was established to consider the appellant’s candidacy in view of the fact that he had a criminal record, recommended that he be admitted to the professional school of the Barreau.  His name was first entered on the Roll of the order on January 26, 1976. From 1976 to 1996, he practised law in various provincial legal aid offices in a competent and dignified manner, thus winning the respect of his colleagues and members of the bench.

 

5                                   On August 20, 1987, on the appellant’s application, the Governor in Council granted him a pardon pursuant to s. 5(b) of the Criminal Records Act, R.S.C. 1970, c. 12 (1st Supp.).  The document he received stated that it is evidence that he was of good behaviour and that the conviction in respect of which it is granted should no longer reflect adversely on his character.  It also stated that the pardon granted vacates the conviction and removes any disqualification to which the person so convicted is subject by virtue of any Act of the Parliament of Canada or a regulation made thereunder.

 


6                                   Between 1989 and 1996, Mr. Therrien submitted his candidacy in five selection procedures for judicial appointments.  He was interviewed on four occasions by the committee for the selection of persons qualified for appointment as judges, and on each occasion committee members raised the issue of trouble with the law.  In 1991 and 1993, he revealed his previous conviction and stated that he had been pardoned.  His candidacy for the first two appointments was unsuccessful, and it appears clearly from the evidence of persons who were selection committee members at that time that his criminal record was a determining factor in the decision to reject his candidacy.  It is not clear whether the issue was directly addressed at the third interview, but there is no doubt that during the last selection process he did not disclose his criminal record or the fact that he had been pardoned, when he was asked the following series of questions:  [translation] “Have you ever been in trouble with the law or with the Barreau?  Has any disciplinary action ever been taken against you?  Are there any outstanding complaints against you?”  Judge Therrien testified to the committee of inquiry of the Conseil de la magistrature that he felt he was justified in answering “no” to these questions for two reasons.  First, he understood, at the time, that the pardon had vacated his conviction and that this was precisely what the law meant.  Second, his answer meant that he would be assessed on his personal qualities and merits, although he was convinced that the Minister of Justice would be informed about his record.

 

7                                   On September 18, 1996, as a result of the favourable recommendation of the committee for the selection of persons qualified for appointment as judges, and after running checks with the Barreau du Québec and the Sûreté du Québec and confirming that his record was clear, the Minister of Justice recommended that Richard Therrien be appointed as a Judge of the Court of Québec.  In late October 1996, the Associate Chief Judge of the Court of Québec and chairman of the selection committee which had recommended Judge Therrien for appointment, Louise Provost, learned that he had been in trouble with the law in the early 1970s.  She advised the Minister of the situation and stated that the appellant had failed to disclose this information to the committee.  On November 11, 1996, the Minister lodged a complaint with the Quebec Conseil de la magistrature pursuant to s. 263 C.J.A., requesting that the Conseil [translation] “determine whether Judge Richard Therrien is capable, in the circumstances, of fulfilling his role with dignity, honour and impartiality”.  He also lodged a complaint with the Barreau du Québec; however, that complaint was stayed pending a decision by the Conseil.

 


8                                   In accordance with ss. 268 and 269 C.J.A., the Conseil de la magistrature established a committee of inquiry to consider the matter, and the committee submitted its report on July 11, 1997.  A majority of the committee, Judge Rivet dissenting, found that the complaint was justified and recommended that procedures for the removal of Judge Therrien be initiated in accordance with ss. 279(b) and 95 C.J.A.

 

9                                   On July 22, 1997, pursuant to the majority recommendation of the committee of inquiry, the Conseil de la magistrature recommended to the Minister of Justice that he initiate the process to remove Judge Therrien by making a request to the Court of Appeal in accordance with s. 95 C.J.A.  The request was made on August 11, 1997.  Concurrently with that proceeding, on October 2, 1997, Judge Therrien filed an application for judicial review in the Superior Court, seeking to have the committee’s inquiry report and the recommendation and the order of the Conseil de la magistrature suspending him declared void and of no effect, and seeking to have the request to the Court of Appeal dismissed.  At the same time, he filed a motion for declaratory judgment challenging the constitutionality of s. 95 C.J.A.  In response to the application and motion, the Minister of Justice filed two motions to dismiss in which he claimed that the Court of Appeal had jurisdiction to dispose of the issues in conducting the inquiry referred to it pursuant to s. 95 C.J.A.  On January 26, 1998, Cliche J. of the Quebec Superior Court dismissed the motions to dismiss.

 

10                               The Minister of Justice appealed the decisions of the Superior Court to the Court of Appeal.  On May 14, 1998, a majority of that Court, Beauregard J.A. dissenting, allowed the first appeal and dismissed the application for judicial review filed by Judge Therrien.  The Court of Appeal unanimously allowed the second appeal, and dismissed the motion for declaratory judgment filed by Judge Therrien.


 

11                               On October 28, 1998, the five judges of the Court of Appeal submitted a report to the Minister of Justice following their inquiry, in which they recommended that the Government revoke Judge Therrien’s commission.

 

III.  Judgments Below

 

A.  Committee of Inquiry of the Conseil de la magistrature

 

1.  Preliminary Question

 

12                               At the outset, the appellant challenged the jurisdiction of the Conseil and its committee to investigate his conduct, since the complaint was based on facts prior to his appointment as a judge.  On this preliminary question, the committee of inquiry unanimously found that it had jurisdiction to review a judge’s past conduct where that conduct could affect his capacity to perform his judicial functions, and to determine whether it undermines public confidence in the incumbent of the office.

 

2.    Judges Lachapelle, Lalande, and Quesnel and Mr. Michel Caron (majority)

 


13                               The four majority members took the view that while the pardon granted to the appellant restored his reputation, it did not erase the past and did not mean that he could deny his criminal record and answer “no” to the question asked by the selection committee regarding his convictions.  In addition, even if it were assumed that having a criminal record may be regarded as an analogous ground for the purposes of s. 15  of the Canadian Charter , it is in the best interests of justice and justified in a free and democratic society for candidates for judicial office to be questioned regarding their criminal past.  Nor can Judge Therrien rely on ss. 18.1 and 18.2 of the Quebec Charter.  Although three of the four majority members were of the view that the office of judge is an employment within the meaning of s. 18.2, they all agreed this provision did not prohibit questioning of a candidate regarding his criminal record.  In addition, he was not justified in denying that he had a record, and in so doing he undermined public confidence in his integrity, rectitude and honesty and in the justice system.

 

14                               Finally, the four majority members made a decision regarding Judge Therrien’s conduct.  The applicable criterion in that regard was related to the confidence of a reasonably informed person appearing before the court, and of the general public, in his honesty, integrity and impartiality.  Since the pardon did not erase the past, an impartial observer would have some doubt as to whether a person sentenced to a year of imprisonment could fulfil his role in accordance with all the provisions of the Code of Ethics.  The public would also have some doubt as to whether he had the capacity to be a judge.  It was therefore important that as a candidate, Judge Therrien act completely transparently and answer “yes” to the questions asked by the committee.  The Committee had the mandate to inform the Minister, and Judge Therrien could not assume that the Minister of Justice alone could find out about his record.  Instead, he opted to construe the law in his own interest, and failed to disclose information of which the committee ought to have been informed, substituting his judgment for theirs.  The entire judicial system depends on truth.  In their view, therefore, a reprimand was not an appropriate sanction; it could not restore public confidence in the judge in question and in the judiciary.  Given the gravity and the continuing nature of the offence, a recommendation for removal was appropriate.

 


3.  Judge Rivet (dissenting)

 

15                               Judge Rivet, the President of the Human Rights Tribunal, would have dismissed the complaint.  In her view, the effect of the pardon granted under s. 5 (b) of the Criminal Records Act  was to vacate the conviction in question, which then became part of the sphere of privacy protected by the charters.  In this regard, Judge Therrien must be given the protection of s. 18.2 of the Quebec Charter, the purpose of which is to combat potential prejudice and discrimination against persons with a criminal past.  The office of judge is an employment within the meaning of that section.  In addition, the complaint lodged by the Minister would “otherwise penalize” the judge “owing to the mere fact” of his criminal record.  It is necessary to look beyond the failure to disclose and to consider instead what he had failed to disclose and who was being discriminated against.  She added that Judge Therrien also enjoyed the protection of s. 15  of the Canadian Charter , since the status of pardoned person is an analogous ground to those set out in s. 15 , and an infringement of this nature cannot be justified under s. 1 , which requires that the limit in question be prescribed by law.

 


16                               In conclusion, she stated that she could not criticize him for how he answered the selection committee, since he did so with the goal of having his candidacy judged in a manner that was consistent with his rights, without discrimination.  In doing so, he had not lied.  The fact that he had a criminal record, even though he had been granted a pardon, had been a major factor in the rejection of his candidacy in previous selection processes and Judge Therrien, being aware of this situation, was justified in withholding the information and requiring that his candidacy be considered on its true merits.  Thus, an informed person viewing the matter realistically and practically, and having thought the matter through, would not lose confidence in the impartiality or integrity of the judicial system and of Judge Therrien, but rather would consider him to be an example of rehabilitation.

 

B.  Quebec Superior Court, [1998] Q.J. No. 180 (QL)

 

17                               Assuming the veracity of all the allegations in the application for judicial review and the motion for declaratory judgment, and without ruling as to the merits, Cliche J. took the view that the application and motion contained sufficient grounds to be referred to a judge of the Superior Court.  A refusal to allow judicial review of the decision by the Conseil de la magistrature would deprive the appellant of his right to review and his right of appeal such as could be exercised by any other person.  There were therefore no grounds to decline to exercise his discretion.

 

C.  Quebec Court of Appeal

 

1.  Motions to Dismiss, [1998] R.J.Q. 1392

 

(a)  LeBel J.A. (majority)

 


18                               LeBel J.A. was of the view that the jurisdiction assigned to the Court of Appeal in s. 95 C.J.A. precluded the exercise of the ordinary jurisdiction of the Superior Court in respect of judicial review and consideration of motions for declaratory judgment.  The Superior Court should have declined to exercise its discretion, and dismissed the application and motion.  In his opinion, the Court of Appeal had the required jurisdiction to consider all issues of fact and law in connection with the request by the Minister of Justice for an inquiry.  This was the case because, among other things, there is a close and necessary connection among the various steps in the process of removing a judge, which involves review by the Court of Appeal of the validity of the initial step. In addition, this is a matter involving the public interest where diligence is essential, the review of which is assigned entirely to the Court of Appeal.

 

(b)  Beauregard J.A. (dissenting in part)

 

19                               Beauregard J.A. would have allowed the Minister’s appeal on the question of the dismissal of the motion for declaratory judgment, on the ground that it was not up to the Superior Court to state an opinion as to whether the Court of Appeal should or should not grant the request made by the Minister.  However, he would have allowed the Minister’s appeal on the question of the dismissal of the application for judicial review only in part, finding for the respondent in respect of the fourth conclusion, that the Court of Appeal cannot assume jurisdiction over the application.  In his view, the inquiry procedure in the Court of Appeal is not dependent on the legality of the procedure followed by the Conseil de la magistrature.  On the other hand, he took the view that the appellant was fully entitled to apply to the Superior Court for judicial review and that he should not be deprived of that remedy.  He would therefore have dismissed that aspect of the appeal.

 

2.    Report of the Inquiry Panel, [1998] R.J.Q. 2956

 


20                               The Court of Appeal rejected the appellant’s argument that the fact that the legislature was not involved in any way in the procedure for removing judges set out in s. 95 C.J.A. compromises their independence, citing the decision of this Court in Valente v. The Queen, [1985] 2 S.C.R. 673.  It took the view that the Courts of Justice Act establishes a dual screening mechanism which eliminates the possibility of a judge being removed by the government without a review of his conduct by his peers and without an affirmative recommendation of removal.

 

21                               For the reasons stated by the committee of inquiry of the Conseil de la magistrature, the Court of Appeal was of the opinion that the committee had jurisdiction to hear the complaint.  It added that the procedure for the selection of persons qualified for appointment as judges is so closely connected with the exercise of the judicial function that it cannot be dissociated from it.  It also considered the structure and functioning of the Conseil and its committee to be in accordance with the requirements of procedural fairness, having regard to the role played by the committee, the procedure that it followed and the composition of the Conseil.  For the reasons set out in his opinion, dissenting as to the motions to dismiss, Beauregard J.A. did not concur in the part of the report relating to the legality of the recommendation made by the Conseil de la magistrature.

 

22                               The Court of Appeal next considered the effect of the pardon granted under s. 5 (b) of the Criminal Records Act .  It distinguished it from Royal clemency and the free and conditional pardons granted under the Criminal Code, R.S.C. 1985, c. C-46 .  The administrative type of pardon granted to Judge Therrien does not affect his guilt and therefore does not mean that his guilt was expunged retroactively; rather, it results in the total or partial vacation of a conviction and of its legal effects for the future.  That pardon therefore does not mean that the person to whom it is granted may deny that he or she has previous convictions when directly asked the question; it merely means that the person may provide an explanation.

 


23                               Sections 18.1 and 18.2 of the Quebec Charter do not provide any help to the appellant.  The first provision prohibits requiring information regarding any ground of discrimination mentioned in s. 10, which does not include previous convictions.  Section 18.2 rather deals with using that information to refuse to hire, dismiss or otherwise penalize a person in his employment.  Judicial office is not comparable to employment.  In addition, even if it were comparable, the nature and requirements of the office could not mean that questions concerning the criminal record of a person aspiring to that office could not be asked.  Finally, the candidate tacitly consents to the selection committee questioning him or her regarding his or her past conduct.  These findings do not mean that other provisions of the Canadian Charter  and the Quebec Charter prohibiting discrimination are not applicable.

 

24                               With that proviso, the selection committee’s question was legitimate and called for an honest answer from the appellant.  The government might have regarded the events of October 1970 as a youthful indiscretion, but it ought to have been able to do so with full awareness of the circumstances.  The appellant knew that he could not be appointed to the bench without disclosing those facts, but he deliberately concealed them, and this conduct justifies a recommendation to the government that his commission be revoked.

 

IV.  Issues

 

25                               The questions in issue can be broken down into three different categories: jurisdictional questions, constitutional questions and the substantive issues.

 


A.  Jurisdictional Questions

 

26                               1.  Under s. 40(1)  of the Supreme Court Act, R.S.C. 1985, c. S-26  (“S.C.A. ”), can the appellant appeal to this Court from a report of the inquiry panel of the Quebec Court of Appeal made pursuant to s. 95 C.J.A., recommending to the government that he be removed?

 

2.  Did the Court of Appeal err in law by declaring that it had jurisdiction to determine questions of law and jurisdiction relating to the inquiry requested by the Minister of Justice under s. 95 C.J.A.?

 

3.  Did the Conseil de la magistrature have jurisdiction to investigate the appellant’s conduct as regards events relating to his candidacy that occurred before he was appointed as a judge?

 

B.  Constitutional Questions

 

27                               On October 1, 1999, Arbour J. stated the following constitutional questions:

 

1.    Is the rule of law — adopted in 1941 (Act to amend the Courts of Justice Act, S.Q. 1941, c. 50, s. 2, assented to on May 17, 1941) and now found in s. 95 of the Courts of Justice Act, R.S.Q., c. T‑16 — allowing the government to remove a judge without an address of the legislature of no force or effect to the extent that it infringes the structural principle of the independence of the judiciary which is guaranteed by the preamble to the Constitution Act, 1867 ?

 


2.    If the answer to the first question is in the negative, is the rule of law contained in s. 95 of the Courts of Justice Act, R.S.Q., c. T‑16, of no force or effect on the ground of inconsistency with the structural principle of the independence of the judiciary guaranteed by the preamble to the Constitution Act, 1867 , to the extent that the government may dismiss a judge without being bound by the conclusions and recommendations of the report of the Court of Appeal?

 

C.  Substantive Issues

 

28                               1.  Did the inquiry panel of the Court of Appeal err in fact and in law in its report when it determined that the nature and functioning of and the inquiry process followed by the committee of inquiry of the Conseil de la magistrature met the requirements of procedural fairness?

 

2. Did the inquiry panel of the Court of Appeal err in fact and in law in its interpretation of the meaning and effect of the pardon obtained by the appellant?

 

3. Having regard to s. 15(1)  of the Canadian Charter  and the preamble and ss. 4, 5 and 18.2 of the Quebec Charter, is the report of the inquiry panel of the Court of Appeal wrong in law and fact?

 

4.  Is the report of the inquiry panel of the Court of Appeal wrong in law and fact having regard to the test for removal of a judge?

 

V.  Analysis

 

A.  Jurisdictional Questions

 

1.  Relevant Statutory Provisions

 


29                               Supreme Court Act, R.S.C. 1985, c. S‑26 

 

2. (1)  In this Act,

 

                                                                   . . .

 

“final judgment” means any judgment, rule, order or decision that determines in whole or in part any substantive right of any of the parties in controversy in any judicial proceeding.

 

. . .

 

“judgment”, when used with reference to the court appealed from, includes any judgment, rule, order, decision, decree, decretal order or sentence thereof, and when used with reference to the Supreme Court, includes any judgment or order of that Court.

 

40. (1)  Subject to subsection (3), an appeal lies to the Supreme Court from any final or other judgment of the Federal Court of Appeal or of the highest court of final resort in a province, or a judge thereof, in which judgment can be had in the particular case sought to be appealed to the Supreme Court, whether or not leave to appeal to the Supreme Court has been refused by any other court, where, with respect to the particular case sought to be appealed, the Supreme Court is of the opinion that any question involved therein is, by reason of its public importance or the importance of any issue of law or any issue of mixed law and fact involved in that question, one that ought to be decided by the Supreme Court or is, for any other reason, of such a nature or significance as to warrant decision by it, and leave to appeal from that judgment is accordingly granted by the Supreme Court.

 

Code of Civil Procedure, R.S.Q., c. C‑25

 

25.  The Court of Appeal is the general appeal tribunal for Québec; it hears appeals from any judgment from which an appeal lies, failing an express provision to the contrary.

 

31.  The Superior Court is the court of original general jurisdiction; it hears in first instance every suit not assigned exclusively to another court by a specific provision of law.

 


33.  Excepting the Court of Appeal, the courts within the jurisdiction of the Legislature of Québec, and bodies politic, legal persons established in the public interest or for a private interest within Québec are subject to the superintending and reforming power of the Superior Court in such manner and form as by law provided, save in matters declared by law to be of the exclusive competency of such courts or of any one of the latter, and save in cases where the jurisdiction resulting from this article is excluded by some provision of a general or special law.

 

46.  The courts and the judges have all the powers necessary for the exercise of their jurisdiction.  They may, in the cases brought before them, even of their own motion, pronounce orders or reprimands, suppress writings or declare them libellous, and make such orders as are appropriate to cover cases where no specific remedy is provided by law.

 

Professional Code, R.S.Q., c. C-26

 

116.  A committee on discipline is constituted within each order.

 

The committee shall be seized of every complaint made against a professional for an offence against this Code, the Act constituting the order of which he is a member or the regulations made under this Code or that Act.

 

The committee shall also be seized of every complaint made against a former member of an order for an offence referred to in the second paragraph that was committed while he was a member of the order.  In such a case, every reference to a professional or a member of the order in the provisions of this Code, the Act constituting the order of which he was a member or a regulation under this Code or the said Act shall be a reference to the former member.

 

Interpretation Act, R.S.Q., c. I-16

 

57.  The authority given to do a thing shall carry with it all the powers necessary for that purpose.

 

Courts of Justice Act, R.S.Q., c. T-16

 

9.  The court and the judges thereof shall have an appellate jurisdiction throughout Québec, over all causes, matters or things appealed from all courts wherefrom an appeal lies by law, unless such appeal be expressly directed to be to some other court.

 


Except where otherwise provided by law, appeals shall be heard before three judges; this number may however be increased by the Chief Justice where he sees fit.

 

10.  The jurisdiction in appeal granted to the court by section 9 shall carry with it all powers necessary to its exercise.

 

95.  The Government may remove a judge only upon a report of the Court of Appeal made after inquiry at the request of the Minister of Justice.

 

256.  The functions of the council are:

 

                                                                   . . .

 

(c)  to receive and examine any complaint lodged against a judge to whom Chapter III of this Part applies;

 

260.  This chapter applies to a judge appointed under this act. . . .

 

263.  The council receives and examines a complaint lodged by any person against a judge alleging that he has failed to comply with the code of ethics.

 

279.  If the report of the inquiry establishes that the complaint is justified, the council, according to the recommendations of the report of the inquiry,

 

(a)  reprimands the judge; or

 

(b)  recommends that the Minister of Justice and Attorney General file a motion with the Court of Appeal in accordance with section 95.

 

If it makes the recommendation provided for in paragraph b, the council suspends the judge for a period of thirty days.

 

2.  Jurisdiction of the Supreme Court

 


30                               On June 17, 1999, this Court granted Judge Therrien leave to appeal from two Court of Appeal decisions on the respondents’ motions to dismiss and from the report of that Court’s inquiry panel, subject to a hearing on the issue of jurisdiction raised by the Attorney General of Quebec.  The jurisdiction of the Supreme Court to hear the appeal from the first two decisions is not in dispute.  However, the respondents argue that no appeal lies from the Court of Appeal report to this Court since it is not a judgment within the meaning of s. 40(1)  S.C.A. , but rather an opinion of the Court of Appeal concerning the conduct of a judge resulting only in a recommendation for removal that is not final and not mandatory.  For the reasons that follow, I do not share that view and I am rather of the opinion that this Court has jurisdiction to hear this appeal.

 

31                               Section 40(1)  S.C.A.  confers “comprehensive jurisdiction in federal and provincial laws” on the Supreme Court of Canada: Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835, at p. 859.  It provides that an appeal lies to this Court if it meets the following three conditions:  (1) it involves a final or other judgment within the meaning of s. 2(1)  S.C.A. ; (2) the judgment was rendered by the Federal Court of Appeal or the highest court of final resort in a province, or a judge thereof, in which judgment can be had in the particular case; (3) the Court is of the opinion that any question involved therein is, by reason of its public importance or the importance of any issue of law or of mixed law and fact involved in that question, one that ought to be decided by the Court or is, for any other reason, of such a nature or significance as to warrant decision by it.

 

32                               In this case, it seems to me to be clear that the second and third conditions have been met.  Since the dispute relates only to the first condition, it is therefore appropriate to consider it at greater length.

 


33                               The concepts of “judgment” and “final judgment” are respectively defined in s. 2(1)  S.C.A.  as follows:  “when used with reference to the court appealed from, includes any judgment, rule, order, decision, decree, decretal order or sentence thereof” (judgment); “any judgment, rule, order or decision that determines in whole or in part any substantive right of any of the parties in controversy in any judicial proceeding” (final judgment).  It is worth mentioning that s. 40(1)  S.C.A.  embraces both of these concepts:  A. (L.L.) v. B. (A.), [1995] 4 S.C.R. 536, at para. 25.  Although s. 40(1)  S.C.A.  has frequently been applied by this Court, the Court has seldom considered the interpretation of the expressions “judgment” and “final judgment”.  In Lady Davis v. Royal Trust Co., [1932] S.C.R. 203, at p. 206, Rinfret J., as he then was, referred to the concept of final judgment in the following terms:

 

In that definition, the word on which we desire to lay emphasis is the word “determines”.  In order that a judgment may come under the definition, it must have, “in whole or in part,” determined or put an end to the issue raised and in respect to which the judgment was rendered.

 

This concept was repeated in Wartime Housing Ltd. v. Madden, [1945] S.C.R. 169, at p. 172.  The English version of s. 2(1)  S.C.A.  is less laconic than the French version, on the concept of judgment, and can provide additional information regarding the nature of that concept.  It uses the expressions “judgment, rule, order, decision, decree, decretal order or sentence”.  In my view, therefore, the expressions “judgment” and “final judgment” both contrast the concept of a decision, whether final or not, with the concept of mere opinion or advice.  In this regard, the jurisdiction of this Court under that provision is closely connected to the fact that the subject matter of the appeal is in the nature of a decision.  In this case, that jurisdiction necessarily depends on the nature and effect of the jurisdiction exercised by the Quebec Court of Appeal when it conducts the proceeding set out in s. 95 C.J.A.

 


3.  Jurisdiction of the Court of Appeal under s. 95 C.J.A.

 

34                               Appellate courts are creatures of statute and their authority is conferred solely by legislation: R. v. W. (G.), [1999] 3 S.C.R. 597, at para. 8.  We must therefore begin by considering the instruments by which jurisdiction is assigned.  The general jurisdiction of the Quebec Court of Appeal is set out in s. 9 C.J.A. and art. 25 of the Code of Civil Procedure, R.S.Q., c. C-25 (“C.C.P.”).  It has jurisdiction over all causes, matters or things appealed from.  In addition, it is given special jurisdiction by certain specific provisions:  this is precisely the situation in the case of s. 95 C.J.A. in respect of judicial ethics.  What is the extent of the authority thus conferred on it? Is it in the nature of a purely advisory opinion, or of a decision? From a careful study of the law and of its context and purpose, I conclude that the report of the Quebec Court of Appeal pursuant to s. 95 C.J.A. is in the nature of a decision.  There are several factors that support this conclusion.

 


35                               It is appropriate, first, to consider the ethical context of s. 95 C.J.A.  The disciplinary process for provincial court judges established by the Courts of Justice Act consists of three stages.  First, it is the function of the Conseil de la magistrature to receive and examine any complaint lodged against a provincially appointed judge (ss. 256c) and 263 C.J.A.).  If the Conseil establishes that the complaint is justified following its preliminary inquiry, or if the complaint is lodged by the Minister of Justice, as in the case at bar, the Conseil establishes a committee of five persons chosen from among its members to conduct an inquiry (ss. 268 and 269 C.J.A.).  If the report of inquiry establishes that the complaint is justified, then following the recommendations of the report of inquiry, the Conseil reprimands the judge, or recommends that the Minister of Justice and Attorney General file a motion with the Court of Appeal in accordance with s. 95 (s. 279 C.J.A.).  It is therefore in the context of the second stage that a request by the Minister may come before the Court of Appeal.  Finally, upon a report of the Court of Appeal, the Minister may remove a judge (s. 95 C.J.A.).

 

36                               In those circumstances, when the Minister of Justice makes a request to the Court of Appeal under s. 95 C.J.A., he does so after reading the report of the Conseil de la magistrature, which is involved at a preliminary stage and has already examined the matter.  Its committee of inquiry has heard the appropriate witnesses and has gathered the necessary evidence in order to make a determination regarding the allegations of failure to comply with the provisions of the Judicial Code of Ethics, R.R.Q. 1981, c. T-16, r. 4.1.  For example, I note that in this case, the committee of inquiry sat for eight days and heard more than 15 witnesses.  It then analyzed the facts at length and made its findings, and then issued a recommendation.  Accordingly, the Minister has the benefit of the administrative body’s specialized knowledge and experience.

 


37                               The report of the Court of Appeal is something quite different.  First, the terms used by the legislator are different.  Section 95 C.J.A. does not require that the Court of Appeal make a report of an inquiry, but a report made after inquiry, and it imposes no restrictions in terms of how it should be done.  It does not limit the inquiry to collecting and analyzing the facts and evidence relating to the judge’s conduct.  As I said earlier, this stage, which involves actively seeking out the truth, has already been the subject, first, of an inquiry under the authority of the Conseil.  It is also revealing that in the case at bar, during the hearing in the Court of Appeal, the parties agreed that all the evidence introduced at the committee of inquiry of the Conseil de la magistrature would be filed in the court, subject to the parties’ right to submit additional evidence, which proved unnecessary.

 

38                               Second, this is a judicial report and, moreover, one made by the highest court in the province.  Its purpose is not simply to assist the Minister in making a decision; rather, it is an essential condition of the proceeding that may lead to the removal of a provincially appointed judge.  In fact, Quebec is the only Canadian province that requires that the Court of Appeal be involved in the removal process: P. H. Russell, The Judiciary in Canada: The Third Branch of Government (1987), at p. 181, and M. L. Friedland, A Place Apart: Judicial Independence and Accountability in Canada (1995), a report prepared for the Canadian Judicial Council, at p. 130.  Its report is a mandatory stage in the proceeding that may lead to the removal of a judge of the Court of Québec.  The fact that s. 95 C.J.A. provides that “[t]he Government may remove a judge only upon a report of the Court of Appeal” (emphasis added) is therefore not happenstance.  Accordingly, it plays a vital role in the administration of justice in the province, and this is one factor that suggests that it should be recognized as a decision.

 


39                               I will add, as my third point, that the procedure for removal of a judge established by the Courts of Justice Act is part of the more general context of the constitutional requirements relating to judicial independence.  The fact that the report of the Court of Appeal is judicial and is in the nature of a decision is one of the conditions that ensure the constitutionality of the process for removal of judges provided by the C.J.A.  I will return to this question later; for now, suffice it to say that for the purposes of s. 11 (d) of the Canadian Charter , the first of the three essential guarantees of judicial independence is security of tenure.  To satisfy this guarantee as regards the removal of provincial court judges, the following two criteria must be met: (1) the removal must be for cause, which must be specific and be related to the judge’s capacity to perform his or her judicial functions; and (2) there must be a judicial inquiry to establish that such cause exists, at which the judge affected must be afforded an opportunity to be heard: Valente, supra, at p. 696; Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3, at para. 115.  For the province of Quebec, this judicial forum is the Court of Appeal.

 

40                               In view of the non-limitative wording of s. 95 C.J.A., and given the importance of the report, in terms of both the process relating to ethics, itself, and the principle of judicial independence, the Court of Appeal has, in my view, very broad powers.  It must put together a complete picture of the situation for the Minister of Justice who has requested it, and this means that it has to determine all questions of fact and law relevant to the finding it must ultimately make.  Section 10 C.J.A. and art. 46 C.C.P. expressly provide that the Court of Appeal has all the powers necessary for the exercise of its jurisdiction.  This is also what is meant by s. 57 of the Quebec  Interpretation Act, which provides that the authority given to do a thing shall carry with it all the powers necessary for that purpose.

 


41                               Thus, as a function that is incidental and necessary to the special jurisdiction conferred on it by s. 95 C.J.A., the court must, inter alia, determine the constitutionality of the provisions that form the basis of its immediate jurisdiction.  It must also consider any procedural defects that may have tainted the inquiry made under the authority of the Conseil de la magistrature, since that inquiry is an integral part of the disciplinary process.  Upon completing that inquiry, the primary purpose of which is to provide a basis for the report and the findings to which it leads, it is required to make a recommendation.  Accordingly, the court’s power to make a recommendation is closely connected to its power of inquiry.

 

42                               In this regard, I would point out that the present situation may be distinguished from the situation in Thomson v. Canada (Deputy Minister of Agriculture), [1992] 1 S.C.R. 385.  In Thomson, Cory J. considered the meaning to be given to the word “recommendation” as it appears in s. 52(2)  of the Canadian Security Intelligence Service Act, R.S.C. 1985, c. C-23 .  In his view, giving the word its ordinary meaning, it necessarily referred to the offering of advice and should not be taken to mean a binding decision: as he said at p. 399, “[t]he . . . meaning of the word ‘recommendation’ is not synonymous with ‘decision’”.  The investigation in question was conducted by the Canadian Security Intelligence Service and related to the granting of a security clearance to the respondent in connection with his employment.  In the case at bar, the inquiry was conducted by the Court of Appeal, the highest court in the province, and by its very nature is not restricted to gathering information; rather, its aim is legally to determine a situation.  Furthermore, the wording of s. 95 C.J.A. does not restrict the court to making recommendations.

 

43                               Thus, the report of the Court of Appeal amounts to much more than the expression of a mere opinion; rather, it is substantially in the nature of a decision.  In the case at bar, this is sufficient to satisfy the definitions of “judgment” or “final judgment” in s. 40(1)  S.C.A.  and to enable this Court to review it.  Having regard to that section, the Court of Appeal should not be permitted to make determinations that are final and not subject to appeal on constitutional questions and questions of law that are of such importance for the administration of justice, lest this lead to inequitable results.


 

44                               I will, however, make a few comments in conclusion, regarding three decisions of this Court and of the Privy Council that must be distinguished from the case at bar.  The respondents cited first, in support of their argument that the report of the Court of Appeal is not in the nature of a decision, the recent decision of this Court in Canada (Minister of Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. 391.  In that case, the Court agreed with the conclusion reached by the Federal Court of Appeal in Luitjens v. Canada (Secretary of State) (1992), 9 C.R.R. (2d) 149, in which that Court was of the opinion that a decision under s. 18(1)  of the Citizenship Act, R.S.C. 1985, c. C-29 , was not a final judgment subject to appeal under the Federal Court Act, R.S.C. 1985, c. F‑7 .  This Court said, at para. 52:

 

Although the decision followed a hearing at which much evidence was adduced, it was merely a finding of fact by the court, which was to form the basis of a report by the minister and, eventually, a decision by the Governor in Council, as described by ss. 10 and 18(1) .  The decision did not finally determine any legal rights.  [Emphasis added.]

 

It is the English version of this decision, “The decision did not finally determine any legal rights” (emphasis added), which best conveys the meaning of these remarks, which is that the decision was not final.  As I noted earlier, s. 40(1)  S.C.A.  refers to a final or other judgment.  Furthermore, the fact situation in Tobiass was very different from the situation contemplated by s. 95 C.J.A.  The Federal Court-Trial Division was conducting an inquiry to determine whether the citizenship that had been granted to the appellants should be revoked.  That inquiry, although judicial in nature, is optional and will be held only if the person in respect of whom the decision is to be made has requested, within 30 days, that the case be referred to the court: s. 18  of the Citizenship Act .  Accordingly, it does not play an essential role in the decision-making process.

 


45                               There is also the recent decision of this Court in R. v. Kelly, [2001] 1 S.C.R. 741, 2001 SCC 25, to which I also wish to return.  In that case, Major J., for the majority, held that the opinion given by the Ontario Court of Appeal under the referral process set out in s. 690 (c) of the Criminal Code, R.S.C. 1985, c. C-46 , for the purpose of determining whether certain evidence was admissible as fresh evidence, was no more than an opinion and not a judgment from which an appeal to this Court is available.  That decision contains a number of points in common with the decision of the Privy Council in Thomas v. The Queen, [1980] A.C. 125, cited by the respondents, which was a reference by the Governor-General to the Court of Appeal of New Zealand regarding whether a convicted person should be pardoned.  Although these two decisions may bear some prima facie resemblance to the present appeal, I believe that the fact situations were different.  As I mentioned earlier, the report of the Quebec Court of Appeal has broader effect.  Unlike s. 690(c) of the Code, it is not optional, but essential to the process of removing a judge and the administration of justice in general.  Furthermore, the fact that it is judicial and in the nature of a decision is fundamental to the constitutionality of the proceeding as a whole.  These considerations do not apply to applications for the mercy of the Crown under s. 690(c) of the Code.

 

46                               For all these reasons, I am of the view that the report of the Quebec Court of Appeal is a final or other judgment within the meaning in which it is understood in ss. 2(1)  and 40(1)  S.C.A. , and I find that this Court has jurisdiction to hear the appeal from the report of the Court of Appeal.  We must now consider the jurisdictional questions raised with respect to the Superior Court and the Conseil de la magistrature.

 


4.  Jurisdiction of the Superior Court

 

47                               In its decision on the appeal from the two Superior Court decisions dismissing the motions to dismiss brought by the respondents against the application for judicial review and motion for declaratory judgment by the appellant, the Court of Appeal correctly held that it had jurisdiction to consider all the questions of law and fact connected with the request by the Minister of Justice for an inquiry.  It said that the exercise of [translation] “[t]he jurisdiction assigned to it for the purposes of that inquiry precludes the exercise of the jurisdiction of the Superior Court” (emphasis added), thus giving the impression that its jurisdiction was exercised exclusively.  In the alternative, the Court of Appeal then stated the opinion that it exercised its jurisdiction concurrently with the jurisdiction of the Superior Court.  LeBel J.A. stated, at pp. 1402-3:

 

[translation]  The context of this special proceeding [provided in s. 95 C.J.A.] then makes it pointless for the Superior Court to exercise its ordinary jurisdiction relating to judicial review and consideration of motions for declaratory judgment. . . .  For these reasons, the Superior Court should have declined to exercise its jurisdiction in these circumstances and dismissed both motions.  [Emphasis added.]

 

The appellant submits that s. 95 C.J.A. did not assign jurisdiction of that nature to the Court of Appeal, either exclusively or concurrently.  I am unable to share that view.

 


48                               Under art. 31 C.C.P., the Superior Court hears in first instance every suit not assigned exclusively to another court by a specific provision of law.  In my opinion, where a request is properly made to the Court of Appeal by the Minister of Justice under s. 95 C.J.A., following a recommendation to that effect by the Conseil de la magistrature in accordance with s. 279 C.J.A., it is precisely the intent of the legislature that the Court of Appeal determine the matter to the exclusion of any other court.  Although this is not spelled out, it clearly follows from the wording and the general scheme of the Courts of Justice Act.  This is the only interpretation that will give true meaning to the provision in s. 95 C.J.A. that “[t]he Government may remove a judge only upon a report of the Court of Appeal” (emphasis added).  Furthermore, this interpretation is consistent with the legislature’s intention of complying with the constitutional requirements regarding tenure of provincial court judges by assigning responsibility to the Court of Appeal, the highest court in the province, exclusively and in the first instance, for conducting an inquiry and making a report on the conduct of a judge.  As a final point, to conclude otherwise would be inimical to the proper administration of justice, since it would encourage a multiplicity of proceedings before various tribunals.  It is therefore far preferable to leave it to the Court of Appeal to determine all the questions of law and fact that may be raised in the course of the disciplinary process involving the scrutiny of the judge’s conduct.

 


49                               It may be helpful here to draw a parallel with the interpretation accepted by this Court in relation to arbitration in St. Anne Nackawic Pulp & Paper Co. v. Canadian Paper Workers Union, Local 219, [1986] 1 S.C.R. 704, and Weber v. Ontario Hydro, [1995] 2 S.C.R. 929.  In Weber, the Court was asked to determine to what extent s. 45(1) of the Ontario Labour Relations Act, R.S.O. 1990, c. L.2, which contains a mandatory arbitration clause for the interpretation and application of collective agreements, deprived the ordinary courts of their jurisdiction.  McLachlin J., as she then was, stated on behalf of a unanimous Court on this question that the model by which arbitrators have exclusive jurisdiction, to the exclusion of the ordinary courts, should prevail in relation to any disputes arising from the collective agreement.  Of the three models proposed (concurrent, overlapping or exclusive), the exclusive jurisdiction model was most consistent with previous jurisprudence, the wording of the Act and the practical effect of a rule of this nature.  At the time when Weber was decided, s. 45(1) of the Ontario Labour Relations Act read as follows:

 

45.--(1) Every collective agreement shall provide for the final and binding settlement by arbitration, without stoppage of work, of all differences between the parties arising from the interpretation, application, administration or alleged violation of the agreement, including any question as to whether a matter is arbitrable.

 

Although the wording does not refer explicitly to the fact that exercise of the jurisdiction of grievance arbitrators regarding the interpretation, application, administration or alleged violation of the agreement precludes any concurrent proceedings in the ordinary law courts, this Court saw, here as well, the clear expression of the legislature’s intention in that regard.  However, this Court was careful to say that the model by which arbitrators have exclusive jurisdiction over disputes arising from the collective agreement did not close the door to all other actions in the courts between the employer and employee.

 

50                               In my view, the Quebec legislature did not say anything different with regard to the jurisdiction of the Court of Appeal under s. 95 C.J.A.  Thus, where a request is referred to it under s. 95 C.J.A., that Court exercises its jurisdiction exclusively.  However, as this Court held in Weber, supra, this model does not operate completely to preclude the ordinary jurisdiction of the Superior Court in other circumstances.

 


51                               In the case at bar, the Court of Appeal had before it the request made by the Minister under s. 95 C.J.A. on August 11, 1997.  Then, on October 2, 1997, before it commenced its inquiry, the appellant filed his application for judicial review and motion for declaratory judgment in the Superior Court.  Therefore, at the point in time when the application and motion were before the Superior Court, the appellant’s case had been properly referred by the Minister to the Court of Appeal, to the exclusion of any other court.  I therefore find that the Superior Court had no jurisdiction to act in the circumstances.

 

52                               The appellant then argues that the effect of this finding is to deprive him of the extraordinary remedies available to all individuals before the courts.  In his view, it is absurd that a judge who has been reprimanded can have the inquiry process judicially reviewed (with a right of appeal), as was the case in Ruffo v. Conseil de la magistrature, [1995] 4 S.C.R. 267, whereas he, who is threatened with removal, is deprived of any remedy.  It is untrue to say that no remedy is available to the appellant.  Quite the contrary, the proceeding provided for in s. 95 C.J.A. gives him special protection and provides him with a judicial forum in which he can be heard.  Furthermore, this is, so to speak, a remedy as of right, since it is a mandatory part of the process that the Minister must follow before removing him from the bench, whereas extraordinary remedies are discretionary.  I would add, in conclusion on this point, that the constitutional considerations that apply when a judge is reprimanded are not as significant as when his or her appointment may be revoked by the Executive.

 

5.  Jurisdiction of the Conseil de la magistrature

 


53                               The appellant argues that the Conseil de la magistrature has no jurisdiction to review his conduct, since the ethical breach occurred before he was appointed.  He is accordingly of the opinion that the misconduct that is the source of the proceedings against him falls under the exclusive jurisdiction of the discipline committee of the Barreau du Québec.  I am unable to accept this reasoning, for several reasons.

 

54                               The Courts of Justice Act imposes two conditions in order for the Conseil to have jurisdiction.  First, it must have jurisdiction over the person who is the subject of the complaint.  Section 256c) C.J.A. states that the functions of the Conseil are “to receive and examine any complaint lodged against a judge to whom Chapter III of this Part applies”.  Section 260 C.J.A. then provides that “[t]his chapter [referring to Chapter III] applies to a judge appointed under this act”.  In the case at bar, Judge Therrien’s notice of appointment confirms that he was appointed as a judge of the Court of Québec pursuant to s. 86 C.J.A.  Second, the Conseil must have jurisdiction over the subject matter of the complaint.  Section 263 C.J.A. specifies that the Conseil receives and examines a complaint lodged by any person against a judge alleging that he has failed to comply with the code of ethics.  At the hearing before the committee of inquiry of the Conseil de la magistrature, counsel for the Minister of Justice explained that the complaint lodged related to breaches of ss. 2, 4, 5 and 10 of the Judicial Code of Ethics, which provide:

 

2.  The judge should perform the duties of his office with integrity, dignity and honour.

 

4.  The judge should avoid any conflict of interest and refrain from placing himself in a position where he cannot faithfully carry out his functions.

 

5.  The judge should be, and be seen to be, impartial and objective.

 

10.  The judge should uphold the integrity and defend the independence of the judiciary, in the best interest of justice and society.

 

The Conseil de la magistrature therefore had jurisdiction over the person and over the subject matter of the complaint.  Whether or not the actions were prior to the appellant’s appointment is not relevant under the Act.


55                               Furthermore, the Barreau du Québec has no jurisdiction over the actions in question.  In Maurice v. Priel, [1989] 1 S.C.R. 1023, this Court set out the procedure to be followed in order to determine the jurisdiction of the Law Society of Saskatchewan to proceed with discipline proceedings against the respondent, a judge of the Court of Queen’s Bench for Saskatchewan, for breaches of its Code of Professional Conduct while he was a practising lawyer.  It stated, at p. 1033:

 

Rather [the case at bar] is concerned with the narrow issue as to whether pursuant to the provisions of The Legal Profession Act of Saskatchewan the Law Society of that province can institute discipline proceedings against a judge for alleged misconduct committed while still a lawyer.  The resolution of the issue turns solely upon the wording of The Legal Profession Act and the Judges Act .  [Emphasis added.]

 

56                               In Quebec, s. 116 of the Professional Code describes the extent of the jurisdiction of the committees on discipline constituted within each professional order:

 

116.  A committee on discipline is constituted within each order.

 

The committee shall be seized of every complaint made against a professional for an offence against this Code, the Act constituting the order of which he is a member or the regulations made under this Code or that Act.

 

The committee shall also be seized of every complaint made against a former member of an order for an offence referred to in the second paragraph that was committed while he was a member of the order.  In such a case, every reference to a professional or a member of the order in the provisions of this Code, the Act constituting the order of which he was a member or a regulation under this Code or the said Act shall be a reference to the former member.  [Emphasis added.]

 


Although the complaint lodged against Judge Therrien concerns allegations of misconduct committed while he was a lawyer, something that is expressly provided for in the third paragraph of s. 116, it does not relate to any “offence against this Code, the Act constituting the order of which he [was] a member or the regulations made under this Code or that Act”.

 

57                               Apart from the statutory provisions, a number of other reasons stated both by the committee of inquiry of the Conseil de la magistrature and by the Court of Appeal may be raised.  For example, in the interests of judicial independence, it is important that discipline be dealt with in the first place by peers.  I agree with the following remarks by Professor H. P. Glenn in his article “Indépendance et déontologie judiciaires” (1995), 55 R. du B. 295, at p. 308:

 

[translation] If we take as our starting point the principle of judicial independence -- and I emphasize the need for this starting point in our historical, cultural and institutional context -- I believe that it must be concluded that the primary responsibility for the exercise of disciplinary authority lies with the judges at the same level.  To place the real disciplinary authority outside that level would call judicial independence into question.

 

58                               In addition, as I said in Ruffo, supra, at p. 309, the committee of inquiry is responsible for preserving the integrity of the whole of the judiciary.  Accordingly, it must be able to examine the past conduct of a judge, if it is relevant to the assessment of his candidacy, having regard to his capacity to carry out his judicial functions, and to determine, based on that, whether it may reasonably undermine public confidence in the incumbent of the office.  In this case, the appellant’s actions, though predating his appointment, were alleged to have had that kind of impact on the performance of his functions.  In conclusion on this point, I am of the same view as LeBel J.A., who held that the process of selecting persons qualified for appointment as judges is so closely related to the exercise of the judicial function itself that it cannot be dissociated from it.

 

B.  Constitutional Questions


1.  Relevant Statutory Provisions

 

59                               Constitution Act, 1867 

 

                                                             [Preamble]

Whereas the Provinces of Canada, Nova Scotia, and New Brunswick have expressed their Desire to be federally united into One Dominion under the Crown of the United Kingdom of Great Britain and Ireland, with a Constitution similar in Principle to that of the United Kingdom:

 

                                                                   . . .

 

96.  The Governor General shall appoint the Judges of the Superior, District, and County Courts in each Province, except those of the Courts of Probate in Nova Scotia and New Brunswick.

 

99. (1)  Subject to subsection (2) of this section, the judges of the superior courts shall hold office during good behaviour, but shall be removable by the Governor General on address of the Senate and House of Commons.

 

(2)  A judge of a superior court, whether appointed before or after the coming into force of this section, shall cease to hold office upon attaining the age of seventy-five years, or upon the coming into force of this section if at that time he has already attained that age.

 

Canadian Charter of Rights and Freedoms 

 

7.  Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

 

11.  Any person charged with an offence has the right

 

                                                                   . . .

 

(d)  to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.

 


2.  Issues and Appellant’s Arguments

 

60                               Individual and institutional impartiality and independence are key elements in the function of a judge; they are inherent in the very definition of a judge and are an integral part of the constitutional structure of the parliamentary democracy of the United Kingdom, which we have inherited through the preamble to our Constitution: Beauregard v. Canada, [1986] 2 S.C.R. 56, at pp. 70-71, and Reference re Remuneration of Judges of the Provincial Court, supra, at paras. 92 and 106.  Section 11 (d) of the Canadian Charter  refers specifically to these elements in defining the rights of the accused:  Valente, supra, at p. 679; R. v. Généreux, [1992] 1 S.C.R. 259, at pp. 282 and 284.  Sections 96  to 100  of the Constitution Act, 1867  also guarantee these elements in respect of judges of the superior courts:  Beauregard, supra, at pp. 71-73, and Reference re Remuneration of Judges of the Provincial Court, supra, at paras. 105, 124-26.  The scope of these various sources of judicial independence, and how they interact, are at the core of the constitutional issue in this case.

 


61                               First, the appellant submits that the legal rule set out in s. 95 C.J.A., by which a provincial court judge may be removed without an address of the legislature, is contrary to the principles of judicial impartiality and independence embodied in the preamble.  While he acknowledges that this Court disposed of this question in Valente, supra, at p. 697, he argues that it did so only in the context of s. 11 (d) of the Canadian Charter , which deals exclusively with criminal matters.  In a non-criminal context, the preamble would apply and afford greater protection than s. 11 (d).  Regarding security of tenure, it would afford the same protection to provincial court judges as to judges of the superior courts, who cannot be removed without an address of Parliament in accordance with s. 99  of the Constitution Act, 1867 .  The appellant is also of the opinion that the province of Quebec did not have the necessary legislative jurisdiction to repeal the requirement for an address of the legislature when it enacted s. 95 C.J.A. in 1941.

 

62                               Second, the appellant argues that s. 95 C.J.A. undermines the structural principle of judicial independence embodied in the preamble to the Constitution Act, 1867 , since the removal of a judge of the Court of Québec is a matter within the sole discretion of the Minister of Justice, who is not required either to table the report of the Court of Appeal in the National Assembly or to follow it. Once again, he is of the opinion that the preamble affords greater protection than is provided by s. 11 (d) of the Canadian Charter .  I will address these two arguments in turn.

 

3.  The Requirement for an Address of the Legislature

 

63                               It is worth mentioning at the outset that the Court of Québec, like the Ontario Provincial Court or courts at the same level in other provinces, is not a superior court as defined in s. 96  of the Constitution Act, 1867 .  Its judges are therefore not covered by the specific conditions set out in ss. 96  to 100  of the Constitution Act, 1867 , inter alia that the removal of a judge must follow the joint address procedure set out in s. 99(1) .  However, should this standard, while not directly applicable to them, be imposed as a constitutional requirement in respect of provincial court judges?  This Court examined that question in relation to s. 11 (d) in Valente, supra, to which we should briefly return.

 


64                               Valente raised the issue of whether a judge of the Ontario Provincial Court hearing criminal cases, whose independence and impartiality are expressly guaranteed by s. 11 (d) of the Canadian Charter , was an independent tribunal within the meaning of that provision.  Le Dain J. wrote the judgment on behalf of the Court.  First, he stated the three essential conditions of judicial independence for purposes of s. 11 (d):  security of tenure, financial security and institutional independence with respect to matters of administration bearing directly on the exercise of its judicial function: Valente, supra, at pp. 694, 704 and 708 (see also R. v. Lippé, [1991] 2 S.C.R. 114, at p. 132; Généreux, supra, at pp. 285-86; Ruffo, supra, at para. 40; and Reference re Remuneration of Judges of the Provincial Court, supra, at para. 115).

 

65                               Le Dain J. next said that although it may be desirable, it is not reasonable to apply the most elaborate and rigorous conditions of judicial independence as constitutional requirements, since s. 11 (d) of the Canadian Charter  may have to be applied to a variety of tribunals.  These essential conditions should instead respect that diversity and be construed flexibly.  Accordingly, there should be no uniform standard imposed or specific legislative formula dictated as supposedly prevailing.  It will be sufficient if the essence of these conditions is respected:  Valente, supra, at pp. 692-93 (see also Lippé, supra, at p. 142; Généreux, supra, at pp. 284-86 and 304; and Reference re Remuneration of Judges of the Provincial Court, supra, at para. 167).

 


66                               In his view, the essence of security of tenure for purposes of s. 11 (d) of the Canadian Charter  is that the appointment be made until an age of retirement, for a fixed term, or for a specific adjudicative task, and that the tenure be secure against interference by the Executive or other appointing authority in a discretionary manner:  Valente, supra, at p. 698 (see also Généreux, supra, at p. 285).  More specifically, as regards removal of provincial court judges, it will be sufficient if the following two criteria are met: (1) the judge may be removed only for cause related to his or her capacity to perform judicial functions and (2) there must be a judicial inquiry to establish that such cause exists, at which the judge must be given an opportunity to be heard:  Valente, supra, at pp. 697-98 (see also Reference re Remuneration of Judges of the Provincial Court, supra, at para. 115).

 

67                               Accordingly, it is not necessary, for purposes of s. 11 (d) of the Canadian Charter , that the procedure to remove a provincial court judge who hears criminal cases include an address of Parliament.  Although in this regard superior court judges enjoy the higher degree of constitutional guarantee modelled on the Act of Settlement of 1701 (12 & 13 Will. 3, c. 2) and set out in s. 99  of the Constitution Act, 1867 , that standard should not be imposed as a constitutional requirement:  Valente, supra, at pp. 695, 697-98 (see also Reference re Remuneration of Judges of the Provincial Court, supra, at para. 115).  Le Dain J. also said, at p. 697:

 

Similarly, it may be desirable, as now provided for in s. 56(1), that a judge should be removable from office only on an address of the legislature, but again I do not think it is reasonable to require this as essential for security of tenure for purposes of s. 11 (d) of the Charter .  It may be that the requirement of an address of the legislature makes removal of a judge more difficult in practice because of the solemn, cumbersome and publicly visible nature of the process, but the requirement of cause, as defined by statute, together with a provision for judicial inquiry at which the judge affected is given a full opportunity to be heard, is in my opinion a sufficient restraint upon the power of removal for purposes of s. 11 (d).  [Emphasis added.]

 


68                               I am of the opinion that this should also apply to provincial courts and the judges of those courts when they hear non-criminal matters, and that their independence is protected by the preamble to the Constitution Act, 1867 .  First, stricter procedural measures in relation to removal cannot be required in their case than are required for the judge exercising his or her jurisdiction in criminal cases.  Their functions are essentially the same and can be distinguished from the functions of a judge hearing criminal cases only to the extent that the subject matter of the cases is less likely to directly affect the freedom of the individual before the court and violate the guarantees set out in ss. 7  and 11  of the Canadian Charter .  Second, although the protection of s. 11 (d) is available only to persons charged with an offence, it “reflects or embodies the traditional constitutional value of judicial independence”:  Valente, supra, at p. 685 (see also Reference re Remuneration of Judges of the Provincial Court, supra, at para. 111).  That same constitutional value is also embodied in the preamble to our Constitution.  Accordingly, the preamble cannot afford greater protection than what is guaranteed by s. 11 (d) of the Canadian Charter .

 

69                               The appellant further submits that this Court should revisit the conclusion reached in Valente in light of its recent judgment in Reference re Remuneration of Judges of the Provincial Court, supra.  He relies on certain remarks by Lamer C.J., for the majority, at para. 162 of the decision:

 

Rather, all that Valente held is that s. 11 (d) does not, as a matter of principle, automatically provide the same level of protection to provincial courts as s. 100  and the other judicature provisions do to superior court judges.  In the particular circumstances, though, s. 11 (d) may in fact provide the same level of protection to provincial court judges as the judicature provisions do to superior court judges.  [Underlining in original; italics added.]

 


70                               Taken in isolation, this passage provides no support for the appellant’s submissions. Furthermore, when put back in its context, it can only reinforce the conclusions of this Court in ValenteReference re Remuneration of Judges of the Provincial Court, supra, raised the specific question of whether the guarantee of judicial independence, and primarily the financial security aspect, restricted the manner by and extent to which the government and provincial legislatures can reduce salaries of provincial court judges.  A majority of the Court found that for purposes of s. 11 (d) of the Canadian Charter , judges’ salaries may be reduced, increased or frozen provided that the government refers consideration of the proposed measure to an independent commission.  In reaching that conclusion, Lamer C.J. relied on Beauregard, supra, which dealt with the degree of protection to which superior court judges were entitled under s. 100  of the Constitution Act, 1867 .  Thus, attempting to determine the applicability of that decision to the interpretation of s. 11 (d), he said, at paras. 160-61:

 

Since Beauregard defines the scope of Parliament’s powers with respect to the remuneration of superior court judges, it was argued before this Court that it had no application to the cases at bar.

 

To some extent, this question was dealt with in Valente, where the Court held that s. 11 (d) did not entitle provincial court judges to a number of protections which were constitutionally guaranteed to superior court judges. For example, while superior court judges may only be dismissed by a resolution of both Houses of Parliament, this Court expressly rejected the need for the dismissal of provincial court judges by provincial legislatures. [Emphasis added.]

 

I do not see in this passage any questioning of the conclusions reached in Valente; those conclusions were rather affirmed.  Like Le Dain J., I therefore find that it is not necessary that the procedure to remove a provincial court judge include an address of the legislature within the meaning of the preamble to the Constitution Act, 1867 .

 


71                               The appellant’s final argument is that the Quebec National Assembly did not have the necessary legislative jurisdiction to repeal the requirement for an address of the legislature for provincial court judges.  First, I have shown that there is no such requirement.  It may indeed be an ideal but it is not necessary in order to comply with the Constitution.  Furthermore, the jurisdiction of provincial legislatures over provincial courts derives expressly from ss. 92(14)  and (4)  of the Constitution Act, 1867 , concerning respectively “The Administration of Justice in the Province, including the Constitution, Maintenance, and Organization of Provincial Courts” and “The Establishment and Tenure of Provincial Offices”.  In exercising their jurisdiction, and within the limitations of the constitutional requirements, provincial legislatures are authorized to adopt separate rules for the functioning of the various judicial councils they establish:  Reference re Remuneration of Judges of the Provincial Court, supra, at para. 167.

 

4.    The Requirement that the Executive be Bound by the Court of Appeal Report

 

72                               In my view, the implications of the second argument put forward by the appellant for judicial independence are more significant.  Indeed, what we must consider is whether the judicial function is genuinely secure against any discretionary interference by the Executive or other appointing authority, as required by Valente, supra, p. 698, where a government is not bound by the findings and recommendations of a judicial inquiry body concerning the removal of a provincial court judge.

 

73                               Le Dain J. considered this issue in Valente.  At pp. 697-98, he said:

 

Whether or not the Executive should be bound by the report of the judicial inquiry — that is, whether the power to remove should be conditional upon a finding of cause by the judicial inquiry, as is now provided by s. 56(1) of the Courts of Justice Act, 1984 — I find more difficult.  Certainly, it is preferable, but I do not think it can be required as essential to security of tenure for purposes of s. 11 (d).  The existence of the report of the judicial inquiry is a sufficient restraint upon the power of removal, particularly where, as provided by s. 4 of the Provincial Courts Act, the report is required to be laid before the legislature.

 


74                               This statement must be explained and put back in its context.  First, I note that Le Dain J. expressed great reluctance to conclude that the Executive did not necessarily have to be bound by the findings of a judicial inquiry body exonerating a judge in order to comply with the requirements of judicial independence; he took pains to point out that this issue was “more difficult” to determine, that it would certainly be “preferable” to conclude otherwise, but that this was not necessary “particularly where . . . the report is required to be laid before the legislature”.  In addition, although this Court did reach that conclusion, it was not unaware that this aspect of the Ontario legislation had been amended while the case was under appeal.  Section 56(1) of the new Courts of Justice Act, 1984, S.O. 1984, c. 11, specifically provided that the Executive was bound to accept a finding of the judicial inquiry body exonerating the judge.  Le Dain J. expressly acknowledged, in one of the introductory paragraphs of his reasons, that “[s]ubsequent changes in the law governing the Provincial Court (Criminal Division) and its judges [were] relevant to the question of the continuing independence of the tribunal to which the matter [might] be remitted for determination”:  Valente, at pp. 683-84.  Furthermore, it is important to point out that the issue of the deference that the Executive must show for a decision of the judicial inquiry body had not been included in the list of the grounds of appeal raised by the appellant before this Court: Valente, at pp. 680-82.  As a result, the remarks of Le Dain J. were merely obiter dicta, and do not bind the courts below and need not today be overruled by this Court: Reference re Remuneration of Judges of the Provincial Court, supra, par. 168.

 

75                               To the foregoing, I would finally add that the decision of this Court was based on a review of all the relevant provisions of the provincial legislation in force at that time regarding the tenure of judges.  That analysis established that “[i]n some cases the executive government is bound by the report of the inquiry; in most cases the government is not bound by it”: Valente, at p. 696.  The situation today is quite different.

 


76                               A current survey of provincial legislation actually establishes the following facts.  In British Columbia and Newfoundland, the judicial council (or in British Columbia a judge of the provincial Supreme Court) may directly recommend removal of a judge without the need for any government involvement, subject, however, to an appeal to the provincial Court of Appeal:  see ss. 28(1) and 29 of the Provincial Court Act, R.S.B.C. 1996, c. 379, and ss. 22 and 23 of the Provincial Court Act, 1991, S.N. 1991, c. 15.  In Ontario, the Northwest Territories and Nunavut, after the judicial council has recommended that a judge be removed, it provides a copy of its recommendation to the Minister, who must table it before the legislature.  The latter may then make a recommendation for removal without any involvement on the part of the government:  see s. 51.8, Courts of Justice Act, R.S.O. 1990, c. C.43, and s. 31.8, Territorial Court Act, R.S.N.W.T. 1988, c. T‑2.  In every other province, the government makes the decision to remove a judge without a prior address of the legislature, but is bound by the recommendation of the judicial council.  In Alberta, Saskatchewan, Prince Edward Island and Nova Scotia, the Lieutenant-Governor in Council may make an order for that purpose only upon a recommendation of the judicial council:  see ss. 32.6(2)(h), 32.7(2) and 32.91 of the Judicature Act, R.S.A. 1980, c. J-1, ss. 62(2)(a) and 62(7) of the Provincial Court Act, 1998, S.S. 1998, c. P-30.11, s. 10(7) of the Provincial Court Act, R.S.P.E.I. 1988, c. P-25, and s. 6(4) of the Judges of the Provincial Court Act, R.S.N.S. 1989, c. 238.  Finally, in Manitoba, New Brunswick and Yukon, if the judicial council (or the judicial ethics tribunal in Yukon) recommends that the judge be removed (that decision is subject to appeal to the provincial or territorial Court of Appeal in Manitoba and Yukon), the Lieutenant-Governor in Council (or the Commissioner in Executive Council in Yukon) must act on the recommendation: see ss. 39.1(1)(h) and 39.4 of the Provincial Court Act, R.S.M. 1987, c. C275, ss. 6.11(4)(d) and 6.11(8) of the Provincial Court Act, R.S.N.B. 1973, c. P-21, and ss. 49(3)(d) and 50(2) of the Territorial Court Act, S.Y. 1998, c. 26.  From this view of the legislative landscape, I conclude that every Canadian province has taken the necessary measures to ensure that provincial court judges are secure against any discretionary interference by the Executive, in that the Executive remains bound by the finding of a judicial inquiry body exonerating a judge.


 

77                               In my view, Quebec is not an exception in this regard.  Although the government makes the final decision regarding removal, as I stated in Ruffo, supra, at  paras. 67 and 89, nonetheless the government, under the actual terms of s. 95 C.J.A., “may remove a judge only upon a report of the Court of Appeal” (emphasis added).  The use of that wording is not a mere question of style; rather, it indicates a real intention on the part of the legislature that the Executive be bound by a finding of the Court of Appeal exonerating the judge.  I am therefore of the opinion that s. 95 C.J.A. meets this constitutional requirement.

 

78                               To conclude on this question, I would point out that although it was raised by the parties, in the case at bar the Court of Appeal actually concluded in its report that there was justification for the revocation of the appellant’s commission.  Thus, there is no danger that the scenario of the government not being bound by a finding of the Court of Appeal exonerating the appellant will arise.

 

5.  Answers to the Constitutional Questions

 

79                               I would therefore answer the constitutional questions as follows:

 

1.    Is the rule of law — adopted in 1941 (Act to amend the Courts of Justice Act, S.Q. 1941, c. 50, s. 2, assented to on May 17, 1941) and now found in s. 95 of the Courts of Justice Act, R.S.Q., c. T‑16 — allowing the government to remove a judge without an address of the legislature of no force or effect to the extent that it infringes the structural principle of the independence of the judiciary which is guaranteed by the preamble to the Constitution Act, 1867 ?

 

No.

 


2.    If the answer to the first question is in the negative, is the rule of law contained in s. 95 of the Courts of Justice Act, R.S.Q., c. T‑16, of no force or effect on the ground of inconsistency with the structural principle of the independence of the judiciary guaranteed by the preamble to the Constitution Act, 1867 , to the extent that the government may dismiss a judge without being bound by the conclusions and recommendations of the report of the Court of Appeal?

 

No.

 

C.  Rules of Procedural Fairness

 

1.  Relevant Statutory Provisions

 

80                               Courts of Justice Act, R.S.Q., c. T-16

 

268.  The council may, after examining a complaint, decide to make an inquiry.  It must make an inquiry, however, if the complaint is lodged by the Minister of Justice or if the latter requests it pursuant to the third paragraph of section 93.1.

 

269.  To conduct an inquiry on a complaint, the council establishes a committee consisting of five persons chosen from among its members and designates a chairman among them.

 

Three persons are a quorum of the committee.

 

272.  The committee hears the parties, their attorneys and their witnesses.

 

It may inquire into the relevant facts and call any person apt to testify on such facts.

 

The witnesses may be examined or cross-examined by the parties.

 

275.  The committee may make rules of procedure or rules of practice for the conduct of an inquiry.

 

If necessary, the committee or one of its members makes the orders of procedure, based on the Code of Civil Procedure (chapter C-25), that are necessary for the carrying out of its duties.

 

277.  The committee submits the report of its inquiry and its recommendations to the council.  It transmits that report to the Minister of Justice; in addition, it transmits a copy of its record of the inquiry in the case where the council makes the recommendation provided for in paragraph b of section 279.

 


278.  If the report of the inquiry establishes that the complaint is not justified, the council notifies the judge concerned, the Minister of Justice and the plaintiff.  That notice states the grounds on which it is based.

 

279.  If the report of the inquiry establishes that the complaint is justified, the council, according to the recommendations of the report of the inquiry,

 

(a)  reprimands the judge; or

 

(b)  recommends that the Minister of Justice and Attorney General file a motion with the Court of Appeal in accordance with section 95.

 

281.  The council may retain the services of an advocate or of another expert to assist the committee in the conduct of its inquiry.

 

2.  Duty to Act Fairly

 

81                               Since Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police, [1979] 1 S.C.R. 311, compliance with the rules of natural justice, which was required of the courts, has been extended to all administrative bodies acting under statutory authority, where they are expressed as the rules of procedural fairness (“duty to act fairly”).  The fact that a decision is administrative and affects “the rights, privileges or interests of an individual” is sufficient to trigger the application of the duty of fairness: Cardinal v. Director of Kent Institution, [1985] 2 S.C.R. 643, at p. 653, and Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at para. 20.  The Conseil de la magistrature and its committee of inquiry are not exceptions and are therefore subject to this principle.  In Ruffo, supra, following a review of the various judicial ethics arrangements in Canada, I found accordingly, at para. 77:

 

In short, each system has its own rules, but they are all based on the same guiding principle:  ensuring compliance with judicial ethics through proceedings that comply fully with the duty to act fairly.

 


82                               Essentially, the duty to act fairly has two components: the right to be heard (the audi alteram partem rule) and the right to an impartial hearing (the nemo judex in sua causa rule).  The nature and extent of the duty may vary with the specific context and the various fact situations dealt with by the administrative body, as well as the nature of the disputes it must resolve:  Syndicat des employés de production du Québec et de l’Acadie v. Canada (Canadian Human Rights Commission), [1989] 2 S.C.R. 879, at pp. 895-96, cited with approval in 2747-3174 Québec Inc. v. Quebec (Régie des permis d’alcool), [1996] 3 S.C.R. 919, at para. 22, and Ruffo, supra, at para. 88.  Thus, in Baker, supra, at paras. 23-28, L’Heureux‑Dubé J. specifically pointed out that several factors have been recognized in the jurisprudence as relevant to determining what is required by the duty of procedural fairness in a given set of circumstances.  While she did not provide a comprehensive list of such factors, she referred to:  (1) the nature of the decision being made and the process followed in making it; (2) the nature of the statutory scheme and the terms of the statute pursuant to which the body operates; (3) the importance of the decision to the individual or individuals affected; (4) the legitimate expectations of the person challenging the decision; and (5) respect for the choices of procedure made by the agency itself, particularly when the statute leaves to the decision-maker the ability to choose its own procedures.  It is from this perspective that I will now consider the allegations of breach of the rules of procedural fairness made by the appellant in the instant case.

 

(a)  Right to be Heard

 

83                               The appellant contends, first, that he did not receive sufficient notice of the findings that might be made by the committee of inquiry and was not granted a supplementary hearing, separate from the first, to state his views regarding appropriate sanctions for his conduct.


 

84                               He argues that at the time of the argument before the committee of inquiry on March 26, 1997, his counsel expressed the wish to make submissions regarding the sanctions applicable to the appellant’s breaches of the code of ethics should the committee find that the complaint was justified.  He stated at that time that he would prefer to be aware of the extent and gravity of the breaches found to have been committed before making argument.  In response to this concern, the committee of inquiry sent a letter to counsel for the appellant, on May 30, 1997, in which it stated that it did not wish to communicate a portion of its inquiry report in advance, since the report constituted a whole which it was inappropriate to sever; it accordingly invited him to make all [translation] “relevant submissions concerning the sanction to be recommended should the Committee’s report determine that the complaint is justified”.  The plaintiff, the Minister of Justice of Quebec, had already indicated that he planned to leave the matter to the committee’s discretion.  When counsel for the appellant initially declined to make representations, the committee repeated its invitation.  Eventually, on July 11, 1997, the committee submitted its report without having received any submissions on behalf of the appellant, or the Minister.

 

(i)  Whether Notice was Given

 


85                               First, the appellant relies on the decision of this Court in Canada (Attorney General) v. Canada (Commission of Inquiry on the Blood System), [1997] 3 S.C.R. 440, to require notice, in confidence, informing him before the conclusion of the hearings as to the various findings that might be made against him.  In my view, that decision is of no assistance to the appellant in the case at bar.  That requirement was imposed in a very particular context, one that is unique to commissions of inquiry which have a duty to “investigate and report on the state and management of the business, or any part of the business, of the department . . . and the conduct of any person in that service” (s. 6 , Inquiries Act, R.S.C. 1985, c. I‑11 ).  In the course of such an inquiry, the commissioners have the authority to make a finding of misconduct against specific organizations or individuals and are required, where that is the case, to give those persons who are not parties to the inquiry warning of findings which may be made against them in the final report (para. 56).

 

86                               In the case in bar, the committee of inquiry of the Conseil de la magistrature did not hold a general inquiry; it examined a specific complaint made against a particular judge.  That judge was a party to the proceedings from the outset and was accordingly informed of the allegations made against him.  In any case, I am of the view that the appellant had sufficient advance notice in the circumstances of this case.  In accordance with s. 266 C.J.A., on receipt of the complaint the Conseil forwarded a copy of it to the judge. Furthermore, on February 6, 1997, the respondents filed a pleading entitled [translation] “Particulars voluntarily provided by the plaintiff”, in which they detailed the subject matter of the complaint.  In the circumstances, the appellant was well aware of all the findings of misconduct that might be made against him, and the committee of inquiry complied with its duty to act fairly in that regard.

 

(ii)  Separate Supplemental Hearing

 


87                               The appellant also contends that he had a right to a separate hearing on the question of sanctions, citing the procedure followed by the British Columbia Securities Commission and considered by this Court in Pezim v. British Columbia (Superintendent of Brokers), [1994] 2 S.C.R. 557, at p. 608.  While Iacobucci J. did not specify whether the procedure in question was necessary or even desirable in order to comply with the requirements of procedural fairness, he did say simply that this was the procedure chosen by the Commission for its inquiry.

 

88                               Similarly, the committee of inquiry of the Conseil de la magistrature was master of its own procedure in the case at bar.  In Les tribunaux administratifs au Canada : Procédure et preuve (1997), at p. 92, Professor Y. Ouellette comments as follows on the autonomy of administrative tribunals in developing their own quasi-judicial procedure:

 

[translation]  From the time that the first appellate administrative tribunals emerged in the United Kingdom early in the century, advocates of judicialization and advocates of procedural autonomy confronted each other, and the question was raised at that time as to whether or not judicial procedure should be used as a suppletive source or as a model to be emulated.  Local Government Board v. Arlidge [[1915] A.C. 120 (H.L.)] may be regarded as the leading decision, firmly moving procedure in the direction of autonomy and dejudicialization. . . .

 

Lord Haldane began by explaining that granting appellate jurisdiction to an administrative agency rather than a court was the expression of a change in legislative policy and that the consequences of this political choice must be accepted.  The agency must, of course, act in a judicial manner, but it must be assumed, absent any indication to the contrary, that the legislator wished to let the agency determine its own procedure so that it could act efficiently.  Lord Shaw even went so far as to warn the judiciary against the temptation to impose its own methods on administrative tribunals.  It is to him that we owe the famous proposition: the tribunal is the master of its own procedure.

 


89                               The Quebec legislature has formally recognized this autonomy in the specific case of the committee of inquiry of the Conseil de la magistrature by enacting s. 275 C.J.A., expressly authorizing it to make rules of procedure or rules of practice that it may find appropriate for the conduct of an inquiry, and to make the orders, based on the Code of Civil Procedure, that are necessary for the carrying out of its duties.  Thus, the committee was fully justified, out of concern for efficiency, in refusing to hold a separate hearing.

 

90                               Furthermore, the facts of this case show that the committee of inquiry made a genuine effort to allow the appellant to make representations.  While it informed him that the report to be submitted to the Conseil de la magistrature could not be severed in order to issue part of it in advance, it twice gave the appellant an opportunity to be heard, in writing, and even orally, on the question of the various applicable sanctions.

 

91                               I therefore find that the appellant’s right to be heard was fully respected in the circumstances and I reject that ground of appeal.  It remains to consider the second aspect of the duty to act fairly: the right to an impartial hearing.

 

(b)  Right to an Impartial Hearing

 

92                               The appellant argues that the decision-making structures of the Conseil de la magistrature are also contrary to the rules of procedural fairness, in that the Conseil is bound to follow the recommendations of its committee of inquiry.  He says that although the Conseil may delegate its power of inquiry it must still be the ultimate decision-maker.  In the alternative, if the committee is validly invested with decision-making authority, judicial independence may be infringed, since this committee may be made up of persons who are not the appellant’s peers.  As a final point, the appellant is of the view that the functioning of the committee of inquiry raises a reasonable apprehension of institutional bias, in that an independent counsel plays the role of judge and party.

 


(i)  Decision-making Structures of the Conseil and its Committee

 

The Conseil Does Not Exercise its Decision-Making Authority Itself

 

93                               It is settled law that a body to which a power is assigned under its enabling legislation must exercise that power itself and may not delegate it to one of its members or to a minority of those members without the express or implicit authority of the legislation, in accordance with the maxim hallowed by long use in the courts, delegatus non potest delegare: Peralta v. Ontario, [1988] 2 S.C.R. 1045, aff’g (1985), 49 O.R. (2d) 705.  In the case at bar it was specifically the intent of the legislature that decision-making authority be assigned to a committee of inquiry.

 


94                               First, s. 269 C.J.A. expressly permits the Conseil to delegate its jurisdiction to inquire into a complaint to a committee consisting of five persons chosen from among its members.  The exercise of this jurisdiction is not contested.  The delegation of decision-making authority is also found in the express terms of the legislation.  In accordance with s. 277 C.J.A., the committee submits its report and its recommendations to the Conseil.  Sections 278 and 279 C.J.A. then provide that the Conseil is bound by the conclusions drawn by the committee.  Under s. 278, if the report establishes that the complaint is not justified, the Conseil notifies the judge concerned, the Minister of Justice and the plaintiff.  Thus, in this first situation, the legislature has provided that the Conseil merely transmits the committee’s decision to the interested parties without revisiting the committee’s decision, sitting on appeal from it, or reviewing it in any way. Furthermore, under s. 279, if the report of the inquiry establishes that the complaint is justified, the Conseil, according to the recommendations of the report of the inquiry, reprimands the judge or recommends that the Minister file a motion with the Court of Appeal in accordance with s. 95 C.J.A.  In this second situation, once again, the legislature has provided that the Conseil shall yield to the committee’s decision.  I acknowledged this situation in Ruffo, at para. 67, where I pointed out that “[u]nder s. 279 CJA, if the report establishes that the complaint is justified, the Conseil must implement the Comité’s recommendations” (emphasis added).  I therefore find that the terms used by the legislation are mandatory and reflect a clear intent on the part of the legislature to authorize delegation of the powers of inquiry and decision regarding the justification for a complaint.

 

95                               Furthermore, the legislature has provided the Conseil de la magistrature with this particular method of operation for obvious reasons of administrative efficiency.  It takes into account the unique situations of disciplinary bodies, and in particular the financial resources allocated to them and the often variable availability of their members. Although this process is more efficient, it in no way compromises procedural fairness.  In carrying out its inquiry, the committee respects the rights of each party involved.  It hears the parties, their attorneys and their witnesses, who may be examined or cross-examined by the parties (s. 272 C.J.A.).  If necessary, the committee makes orders as to  procedure based on the Code of Civil Procedure (s. 275 C.J.A.).

 

96                               To conclude, and as I have already pointed out in these reasons, provincial legislatures have all the necessary jurisdiction to determine the procedures that will ensure the security of tenure of provincial court judges in compliance with the rules of procedural fairness, to the extent that those rules follow the requirements of judicial independence: Reference re Remuneration of Judges of the Provincial Court, supra, at para. 167.  This further ground of appeal must therefore be dismissed.

 


Composition of the Conseil

 

97                               It should be recalled, first, that under s. 248 C.J.A., the Conseil de la magistrature is composed of 14 members: the chief judge of the Court of Québec who is also its chairman, the senior associate chief judge and the three associate chief judges of the Court of Québec, one of the chief judges of the Municipal Courts of Laval, Montréal or Québec, one judge chosen among the persons exercising the functions of chief judge of the Labour Court, president of the Human Rights Tribunal, or chairman of the Professions Tribunal, three judges chosen among the judges of the Municipal Courts (two judges chosen among the Municipal Courts of Laval, Montréal or Québec and appointed upon the recommendation of the Conférence des juges du Québec, and one judge chosen among the other Municipal Courts and appointed upon the recommendation of the Conférence des juges municipaux du Québec), two advocates appointed upon the recommendation of the Barreau du Québec and two persons who are neither judges nor advocates.  In 1998, another member was added, namely the chief judge of the municipal courts, bringing the number to 15:  S.Q. 1998, c. 30, s. 40.

 

98                               The appellant argues that the involvement of one of the four persons who are not members of the judiciary in the decision-making process violates the collective or institutional dimension of the structural principle of judicial independence, in that only a body composed of judges may recommend the removal of a judge.  He relies on certain remarks by Lamer C.J. in Reference re Remuneration of Judges of the Provincial Court, supra, at para. 120:

 

The guarantee of security of tenure, for example, may have a collective or institutional dimension, such that only a body composed of judges may recommend the removal of a judge.  However, I need not decide that particular point here.  [Emphasis added.]


 

This passage speaks for itself and cannot provide a basis for the appellant’s argument.  This is a matter on which this Court has not yet expressed a view.

 

99                               Although he too does not state a definitive opinion, Professor Friedland, in the report he prepared for the Canadian Judicial Council, supra, nevertheless refers to that possibility, at p. 137.

 

(Whether there should be lay participation on the Canadian Judicial Council itself is an issue that I have not dealt with in this Report.)

 

                                                                   . . .

 

Finally, we come to lay participation in formal Inquiries.  The Act specifies that the Inquiry may include one or more lawyers.  Recent formal Inquiries (Gratton and Marshall) have included two lawyers appointed by the Minister of Justice.  It would be better to provide that non-judicial participation could be by both a lawyer and a lay person.  And again, it should not be the government that selects the individuals; there should be some objective method of selecting a pool. . . .

 


100                           The disciplinary process in Quebec has a number of unique features.  First, it must be borne in mind that the report and recommendations of the committee of inquiry of the Conseil de la magistrature are merely the first stage of a potentially three-stage process put in place by the Courts of Justice Act.  Thus, in the second stage, the Court of Appeal becomes involved and conducts a second inquiry into the conduct of the judge in question and makes its own report.  In the case at bar, a panel of five judges of the Court of Appeal was established.  Furthermore, the powers assigned to the Conseil are limited.  Pursuant to s. 279 C.J.A., if the report of the inquiry establishes that the complaint is justified, the Conseil may reprimand the judge or recommend that the Minister initiate the procedure provided by s. 95 C.J.A., under which the Court of Appeal becomes involved.  A recommendation to remove a provincial court judge is therefore within the exclusive jurisdiction of the highest court in the province.  See Ruffo, supra, at para. 89.

 

101                           In these circumstances, the presence of persons who are not members of the judiciary at a preliminary stage may seem valuable in that it may provide input for the deliberations of the committee members and bring another perspective to the perceptions that members of the legal profession (in the case of the lawyers) and the general public (in the case of the other members) have of the judiciary.  In my view, and in the specific circumstances of this case, the composition of the committee of inquiry of the Conseil de la magistrature complies with the structural principle of judicial independence and the rules of procedural fairness.

 

(ii)  Appearance of Institutional Bias

 

102                           The appellant’s final argument is that there is the appearance of institutional bias, since the committee of inquiry uses the services of counsel who acts as both judge and party.  The concept of institutional impartiality was recognized and adopted by this Court for the first time in Lippé, supra, at p. 140.  It should be noted that the test developed by the courts for identifying this situation was: would an informed person viewing the matter realistically and practically, and having thought the matter through, have a reasonable apprehension of bias in a large number of cases?  I will now examine the situation raised by the appellant.

 


103                           Under s. 281 C.J.A., the Conseil may retain the services of an advocate or of another expert to assist the committee in the conduct of its inquiry.  My comments in Ruffo, supra, regarding the nature of the mandate assigned to the committee of inquiry provide some insight that is useful for disposing of this question.  Thus, at paras. 72-74, I said:

 

Accordingly, as the statutory provisions quoted above illustrate, the debate that occurs before it does not resemble litigation in an adversarial proceeding; rather, it is intended to be the expression of purely investigative functions marked by an active search for the truth.

 

In light of this, the actual conduct of the case is the responsibility not of the parties but of the Comité itself, on which the CJA confers a pre-eminent role in establishing rules of procedure, researching the facts and calling witnesses.  Any idea of prosecution is thus structurally excluded.  The complaint is merely what sets the process in motion.  Its effect is not to initiate litigation between two parties.  This means that where the Conseil decides to conduct an inquiry after examining a complaint lodged by one of its members, the Comité does not thereby become both judge and party: as I noted earlier, the Comité’s primary role is to search for the truth; this involves not a lis inter partes but a true inquiry in which the Comité, through its own research and that of the complainant and of the judge who is the subject of the complaint, finds out about the situation in order to determine the most appropriate recommendation based on the circumstances of the case before it.

 

Moreover, it is for this purpose and in order to conduct the inquiry for which it is responsible that the Conseil may retain the services of an advocate, as provided by s. 281 CJA.  [Emphasis added; emphasis in original omitted.]

 

This passage clearly shows that the committee’s purpose is not to act as a judge or even as a decision-maker responsible for settling a dispute; on the contrary, it is to gather the facts and evidence in order, ultimately, to make a recommendation to the Conseil de la magistrature.  It also illustrates the intention of avoiding the creation of an adversarial atmosphere between two opponents each seeking to prevail.  When there was no judge or parties, counsel for the committee could not have been in a conflict of interest.  For instance, when he examined and cross-examined the witnesses he was not acting as a prosecutor, but rather was providing the committee with help and assistance in carrying out the mandate assigned to it by the statute.

 


104                           I would also add that the committee’s recommendation is not final with respect to the outcome of the disciplinary process, which then falls within the jurisdiction of the Court of Appeal and thereafter, if applicable, the Minister of Justice: Ruffo, supra, at para. 89.  Accordingly, the role played by the independent counsel neither violates procedural fairness nor raises a reasonable apprehension of bias in a large number of cases in the mind of an informed person viewing the matter realistically and practically, and having thought the matter through.

 

D.  Appellant’s Conduct

 

1.  Relevant Statutory Provisions

 

105                           Canadian Charter of Rights and Freedoms 

 

15. (1)  Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

 

Charter of Human Rights and Freedoms, R.S.Q., c. C-12

 

4.  Every person has a right to the safeguard of his dignity, honour and reputation.

 

5.  Every person has a right to respect for his private life.

 

10.  Every person has a right to full and equal recognition and exercise of his human rights and freedoms, without distinction, exclusion or preference based on race, colour, sex, pregnancy, sexual orientation, civil status, age except as provided by law, religion, political convictions, language, ethnic or national origin, social condition, a handicap or the use of any means to palliate a handicap.

 

Discrimination exists where such a distinction, exclusion or preference has the effect of nullifying or impairing such right.

 


18.1  No one may, in an employment application form or employment interview, require a person to give information regarding any ground mentioned in section 10 unless the information is useful for the application of section 20 or the implementation of an affirmative action program in existence at the time of the application.

 

18.2  No one may dismiss, refuse to hire or otherwise penalize a person in his employment owing to the mere fact that he was convicted of a penal or criminal offence, if the offence was in no way connected with the employment or if the person has obtained a pardon for the offence.

 

20.  A distinction, exclusion or preference based on the aptitudes or qualifications required for an employment, or justified by the charitable, philanthropic, religious, political or educational nature of a non-profit institution or of an institution devoted exclusively to the well-being of an ethnic group, is deemed non-discriminatory.

 

Criminal Records Act, R.S.C. 1970, c. 12 (1st  Supp.)

 

5.  The grant of a pardon

 

(a)  is evidence of the fact that the Board, after making proper inquiries, was satisfied that an applicant was of good behaviour and that the conviction in respect of which the pardon is granted should no longer reflect adversely on his character; and

 

(b)  unless the pardon is subsequently revoked, vacates the conviction in respect of which it is granted and, without restricting the generality of the foregoing, removes any disqualification to which the person so convicted is, by reason of such conviction, subject by virtue of any Act of the Parliament of Canada or a regulation made thereunder.

 

Criminal Records Act, R.S.C. 1985, c. C‑47 

 

5.  The grant of a pardon

 

(a)  is evidence of the fact that the Board, after making proper inquiries, was satisfied that the applicant for the pardon was of good behaviour and that the conviction in respect of which the pardon is granted should no longer reflect adversely on his character; and

 


(b)  unless the pardon is subsequently revoked, vacates the conviction in respect of which it is granted and, without restricting the generality of the foregoing, removes any disqualification to which the person so convicted is, by reason of the conviction, subject by virtue of any Act of Parliament or a regulation made thereunder.

 

6. (1)  The Minister may, by order in writing addressed to any person having the custody or control of any judicial record of a conviction in respect of which a pardon has been granted, require that person to deliver that record into the custody of the Commissioner.

 

(2)  Any record of a conviction in respect of which a pardon has been granted that is in the custody of the Commissioner or of any department or agency of the Government of Canada shall be kept separate and apart from other criminal records, and no such record shall be disclosed to any person, nor shall the existence of the record or the fact of the conviction be disclosed to any person, without the prior approval of the Minister.

 

(3)  The Minister shall, before granting the approval for disclosure referred to in subsection (2), satisfy himself that the disclosure is desirable in the interests of the administration of justice or for any purpose related to the safety or security of Canada or any state allied or associated with Canada.

 

7.  A pardon may be revoked by the Board

 

(a)  if the person to whom it is granted or issued is subsequently convicted of an offence punishable on summary conviction under an Act of Parliament or a regulation made under an Act of Parliament;

 

(b)  on evidence establishing to the satisfaction of the Board that the person to whom it was granted or issued is no longer of good conduct; or

 

(c)  on evidence establishing to the satisfaction of the Board that the person to whom it was granted or issued knowingly made a false or deceptive statement in relation to the application for the pardon, or knowingly concealed some material particular in relation to that application.

 

8.  No person shall use or authorize the use of an application form for or relating to any of the following matters that contains a question that by its terms requires the applicant to disclose a conviction in respect of which a pardon that has not been revoked or ceased to have effect has been granted or issued to the applicant:

 

(a)  employment in any department as defined in section 2 of the Financial Administration Act;

 

(b)  employment by any Crown corporation as defined in section 83 of the Financial Administration Act;

 

(c)  enrolment in the Canadian Forces; or

 


(d)  employment on or in connection with the operation of any work, undertaking or business that is within the legislative authority of Parliament.

 

Criminal Records Act, R.S.C. 1985, c. C-47  (as in force on August 1, 2000)

 

5.  The pardon

 

(a)  is evidence of the fact

 

(i)  that, in the case of a pardon for an offence referred to in paragraph 4(a), the Board, after making inquiries, was satisfied that the applicant for the pardon was of good conduct, and

 

(ii)  that, in the case of any pardon, the conviction in respect of which the pardon is granted or issued should no longer reflect adversely on the applicant’s character; and

 

(b)  unless the pardon is subsequently revoked or ceases to have effect, requires the judicial record of the conviction to be kept separate and apart from other criminal records and removes any disqualification to which the person so convicted is, by reason of the conviction, subject by virtue of the provisions of any Act of Parliament, other than section 109 , 110 , 161  or 259  of the Criminal Code  or subsection 147.1(1)  of the National Defence Act , or of a regulation made under an Act of Parliament.

 

Professional Code, R.S.Q., c. C-26

 

45.  The Bureau may refuse to issue a permit to or enter on the roll any applicant who

 

(1)  has been the subject of a decision of a Canadian court finding him guilty of a criminal offence which, in the reasoned opinion of the Bureau, is related to the practice of the profession, unless he has obtained a pardon;

 

Courts of Justice Act, R.S.Q., c. T-16

 

262.  The code of ethics determines the rules of conduct and the duties of the judges towards the public, the parties to an action and the advocates, and it indicates in particular which acts or omissions are derogatory to the honour, dignity or integrity of the judiciary and the functions or activities that a judge may exercise without remuneration notwithstanding section 129.


263.  The council receives and examines a complaint lodged by any person against a judge alleging that he has failed to comply with the code of ethics.

 

279.  If the report of the inquiry establishes that the complaint is justified, the council, according to the recommendations of the report of the inquiry,

 

(a)  reprimands the judge; or

 

(b)  recommends that the Minister of Justice and Attorney General file a motion with the Court of Appeal in accordance with section 95.

 

If it makes the recommendation provided for in paragraph b, the council suspends the judge for a period of thirty days.

 

Judicial Code of Ethics, R.R.Q. 1981, c. T-16, r. 4.1

 

2.  The judge should perform the duties of his office with integrity, dignity and honour.

 

4.  The judge should avoid any conflict of interest and refrain from placing himself in a position where he cannot faithfully carry out his functions.

 

5.  The judge should be, and be seen to be, impartial and objective.

 

10.  The judge should uphold the integrity and defend the independence of the judiciary, in the best interest of justice and society.

 

Regulation respecting the procedure for the selection of persons apt for appointment as judges, R.R.Q. 1981, c. T-16, r. 5

 

 

7.  A candidate is deemed to have accepted that an investigation be carried out with respect to him with the Bar and with police authorities.

 

18.  The committee determines the competence of the candidate for appointment as a judge.  For that purpose, it assesses the personal and intellectual qualities of the candidate as well as his experience.

 

The committee assesses, in particular, the candidate’s degree of legal knowledge in the areas of law in which the judge will perform his duties, as well as his capacity for judgment, his insight, his ability for evaluation, his sense of decision and his concept of a judge’s duty.

 


2.  Appellant’s Arguments

 

106                           The appellant argues, first, that the pardon he was granted under the Criminal Records Act, R.S.C. 1985, c. C‑47  (“C.R.A. ”) (formerly R.S.C. 1970, c. 12 (1st Supp.)) retroactively vacated his conviction and allows him to deny its existence when he is asked whether he has “been in trouble with the law”.  He then claims the protection of the Canadian and Quebec charters.  More specifically, he believes that he was discriminated against on the basis of a criminal record, contrary to s. 15  of the Canadian Charter , and was dismissed or otherwise penalized in his employment owing to the mere fact that he was granted a pardon, contrary to s. 18.2 of the Quebec Charter.  He also submits that his rights to dignity, honour and reputation, and to private life, which are protected by ss. 4 and 5 of the Quebec Charter, have been infringed, since the existence of his conviction has been disclosed despite the pardon, and he was defamed by members of the legislature.  Finally, the appellant questions the application of the test for removal in his specific case.  In his view, his conduct has not been so manifestly and profoundly destructive of the impartiality, integrity and independence of the justice system that the confidence of the public in his capacity to carry out his functions would be undermined.

 

107                           By making these arguments, the appellant is inviting this Court to examine the very foundations of our justice system.  The decision is, first and foremost, closely connected to the role a judge is called upon to play in that system and to the image of impartiality, independence and integrity he or she must project and strive to maintain.

 

3.  The Role of the Judge: “A Place Apart”

 


108                           The judicial function is absolutely unique.  Our society assigns important powers and responsibilities to the members of its judiciary.  Apart from the traditional role of an arbiter which settles disputes and adjudicates between the rights of the parties, judges are also responsible for preserving the balance of constitutional powers between the two levels of government in our federal state.  Furthermore, following the enactment of the Canadian Charter , they have become one of the foremost defenders of individual freedoms and human rights and guardians of the values it embodies:  Beauregard, supra, at p. 70, and Reference re Remuneration of Judges of the Provincial Court, supra, at para. 123.  Accordingly, from the point of view of the individual who appears before them, judges are first and foremost the ones who state the law, grant the person rights or impose obligations on him or her.

 

109                           If we then look beyond the jurist to whom we assign responsibility for resolving conflicts between parties, judges also play a fundamental role in the eyes of the external observer of the judicial system.  The judge is the pillar of our entire justice system, and of the rights and freedoms which that system is designed to promote and protect. Thus, to the public, judges not only swear by taking their oath to serve the ideals of Justice and Truth on which the rule of law in Canada and the foundations of our democracy are built, but they are asked to embody them (Justice Jean Beetz, Introduction of the first speaker at the conference marking the 10th anniversary of the Canadian Institute for the Administration of Justice, observations collected in Mélanges Jean Beetz (1995), at pp. 70-71).

 


110                           Accordingly, the personal qualities, conduct and image that a judge projects affect those of the judicial system as a whole and, therefore, the confidence that the public places in it.  Maintaining confidence on the part of the public in its justice system ensures its effectiveness and proper functioning.  But beyond that, public confidence promotes the general welfare and social peace by maintaining the rule of law.  In a paper written for its members, the Canadian Judicial Council explains:

 

Public confidence in and respect for the judiciary are essential to an effective judicial system and, ultimately, to democracy founded on the rule of law. Many factors, including unfair or uninformed criticism, or simple misunderstanding of the judicial role, can adversely influence public confidence in and respect for the judiciary.  Another factor which is capable of undermining public respect and confidence is any conduct of judges, in and out of court, demonstrating a lack of integrity.  Judges should, therefore, strive to conduct themselves in a way that will sustain and contribute to public respect and confidence in their integrity, impartiality, and good judgment.

 

(Canadian Judicial Council, Ethical Principles for Judges (1998), p. 14)

 

111                           The public will therefore demand virtually irreproachable conduct from anyone performing a judicial function.  It will at least demand that they give the appearance of that kind of conduct.  They must be and must give the appearance of being an example of impartiality, independence and integrity.  What is demanded of them is something far above what is demanded of their fellow citizens.  This is eloquently expressed by Professor Y.-M. Morissette:

 

[translation] [T]he vulnerability of judges is clearly greater than that of the mass of humanity or of “elites” in general:  it is rather as if his or her function, which is to judge others, imposed a requirement that he or she remain beyond the judgment of others.

 

(“Figure actuelle du juge dans la cité” (1999), 30 R.D.U.S. 1, at pp. 11-12)

 

In The Canadian Legal System (1977), Professor G. Gall goes even further, at p. 167:

 


The dictates of tradition require the greatest restraint, the greatest propriety and the greatest decorum from the members of our judiciary.  We expect our judges to be almost superhuman in wisdom, in propriety, in decorum and in humanity.  There must be no other group in society which must fulfil this standard of public expectation and, at the same time, accept numerous constraints.  At any rate, there is no question that a certain loss of freedom accompanies the acceptance of an appointment to the judiciary.

 

112                           The reasons that follow therefore cannot disregard two fundamental premises.  First, and following from the foregoing, they cannot be dissociated from the very particular context of the judicial function.  The judge is in “a place apart” in our society and must conform to the demands of this exceptional status (Friedland, supra).  On the other hand, we also must not forget that this Court is sitting on appeal from the report of the inquiry panel of the Quebec Court of Appeal, to which a specific function has been assigned by s. 95 C.J.A.  As I said earlier, the Court of Appeal, when it makes its report under that provision, is called upon to play a fundamental role in terms of both the ethical process itself and the principle of judicial independence.  This Court must therefore respect that jurisdiction and show it the proper deference.  This is the approach that I shall now take in moving on to the final part of these reasons.

 

4.  Meaning and Effect of the Pardon

 

113                           At common law, a pardon is an expression of the sovereignty of the monarch, the result of the unilateral and discretionary exercise of the Royal prerogative of mercy or clemency.  In Canada, a pardon is also derived from the powers of the Crown.  Thus, the provisions contained in Canadian statute law, including the Criminal Code , merely prescribe various ways to exercise that prerogative, without limiting its scope: s. 749  of the Criminal Code .  See also Reference as to the Effect of the Exercise of the Royal Prerogative of Mercy upon Deportation Proceedings, [1933] S.C.R. 269, Reference re Resolution to Amend the Constitution, [1981] 1 S.C.R. 753, at pp. 876-77, and, more generally, H. Dumont, Pénologie — Le droit canadien relatif aux peines et aux sentences (1993), at pp. 539-70.


 

114                           Professor Dumont breaks the various types of pardon found in the Criminal Code  down into the following categories:  (1) the ordinary and partial pardon provided in ss. 748(1) and 748.1(1) of the Code, which consists of the remission, in whole or in part, of a sentence without reviewing the issue of the person’s guilt; (2) the conditional pardon granted under s. 748(2) of the Code, which can amend the initial sentence imposed by the court and make it subject to certain conditions; (3) the free pardon also granted under subss. 748(2) and (3) of the Code, by virtue of which a person is deemed never to have committed the offence in respect of which it is granted, and (4) the pardon granted after a referral for hearing or referral to a court of appeal in accordance with s. 690 of the Code or s. 53  S.C.A. , which results in a new trial or a new hearing.

 

115                           Also, Parliament may legislate regarding pardons in the exercise of its jurisdiction over criminal law.  For example, it has established a procedure for administrative pardons, under the exclusive authority of the National Parole Board, which is set out in the Criminal Records Act .  A pardon of that nature may be granted, after inquiry, to any applicant who has been convicted of an offence under a federal Act or regulations thereunder.  This is the procedure by which the Governor General in Council granted a pardon to Richard Therrien on August 20, 1987.  What then is the effect of this kind of pardon?  More specifically, did it mean that the appellant could completely deny the existence of the conviction in respect of which it was granted and answer “no” to the question asked by the committee for the selection of persons qualified for appointment as judges?  The Court of Appeal did an exhaustive review of this issue.  It found that the pardon granted to the appellant does not affect his guilt, but does result in the complete remission of his conviction and its legal effects for the future.  Here we need to revisit some aspects of its analysis.


 

116                           Sections 5  and 6(2)  C.R.A.  set out the effects of granting a pardon: (1) it is evidence that the National Parole Board, after making the inquiries specified in the Act, was satisfied that the applicant was of good conduct and that the conviction in respect of which it is granted should no longer reflect adversely on his character; (2) it vacates the conviction and removes any disqualification to which the person is subject by virtue of any federal Act or regulation made thereunder; and (3) it results in any record of the conviction being kept separate and apart:  in other words, the criminal record is expunged.  In and of themselves, these provisions do not persuade me that the pardon can operate to retroactively wipe out the conviction.  Rather, they are an expression of the fact that it still exists, combined with a desire to minimize its future consequences. Section 5 (a)(ii) C.R.A.  provides that the pardon is evidence that “the conviction in respect of which the pardon is granted or issued should no longer reflect adversely on the applicant’s character” (emphasis added), implying that it still exists and could so reflect.  Second, the effects of the pardon are limited to the legal disqualifications created by federal statutes or the regulations thereunder and therefore exclude all the post-sentence consequences provided in provincial legislation, which also suggests that the pardon has only limited effect.  Third, the information contained in the criminal record is not destroyed but is kept separate and apart, whence it may re-emerge should the pardoned person subsequently be no longer of good conduct.

 

117                           In support of the opposing argument, the appellant refers us to the English version of s. 5  C.R.A.  which, at first sight, appears to have another meaning.  When it was enacted in 1970, its English and French versions read as follows:

 

5.  The grant of a pardon

 


(a)  is evidence of the fact that the Board, after making proper inquiries, was satisfied that an applicant was of good behaviour and that the conviction in respect of which the pardon is granted should no longer reflect adversely on his character; and

 

(b)  unless the pardon is subsequently revoked, vacates the conviction in respect of which it is granted and, without restricting the generality of the foregoing, removes any disqualification to which the person so convicted is, by reason of such conviction, subject by virtue of any Act of the Parliament of Canada or a regulation made thereunder.

 

5.  L’octroi d’un pardon

 

a)  est la preuve du fait que la Commission, après avoir effectué une enquête suffisante, est convaincue que le requérant a eu une bonne conduite et que la condamnation à l’égard de laquelle le pardon est accordé ne devrait plus nuire à sa réputation; et

 

b)  à moins que le pardon ne soit révoqué par la suite, annule la condamnation pour laquelle il est accordé et, sans restreindre la portée générale de ce qui précède, élimine toute déchéance que cette condamnation entraîne, pour la personne ainsi déclarée coupable, en vertu de toute loi du Parlement du Canada ou d’un règlement établi sous son régime.  [Emphasis added.]

 


When it was revised in 1985, the French version was amended so that the words “efface les conséquences de la condamnation” were substituted for “annule la condamnation”.  However, the English version remained almost unchanged, retaining throughout the years the words “vacates the conviction”, which generated some debate.  Did the fact that no changes were made to the English version reflect a mere oversight, or did the amendment to the French version indicate that Parliament had intended to harmonize it with the English version?  In the Oxford English Dictionary (2nd ed. 1989), vol. XIX, at p. 385, we see that the expression “vacate” means “to make void in law, to deprive of legal authority, validity, force, efficacy or value, to render inoperative or to annul or cancel”, which does not necessarily involve retroactive effects.  Thus, it is possible to make something void, deprive it of any effect or authority or annul it for the future only.  It is therefore highly probable that the amendments to the French version were intended only to better convey the meaning of the English version.

 

118                           In connection with a proposed reform of the Criminal Records Act  in 1992, Parliament considered whether it would be advisable to add a provision to allow those who receive a pardon to deny the conviction (“deeming provision”).  The interdepartmental committee struck to consider various avenues instead opted to recommend maintaining the status quo in this regard.  Its view was that the Act should not be amended to include a provision of that type, thus demonstrating its opposition to what had been referred to as “legislated lying”.  As an alternative, it proposed the publication of bulletins indicating the effects of having records “sealed” once a pardon is granted, pointing out that information cannot be released:  Proposal for Reform of the Criminal Records Act (July 20, 1991), Explanatory document prepared by the Solicitor General of Canada, at pp. 10-11, Recommendation No. 7.  See also T. J. Singleton, “La discrimination fondée sur le motif des antécédents judiciaires et les instruments anti-discriminatoires canadiens” (1993), 72 Can. Bar Rev. 456, at p. 463.

 


119                           I note in passing that the interpretation holding that the Act does not allow  a person to deny that he or she was convicted is also consistent with the most recent amendments to the Act in 2000, although those amendments cannot be set up against the appellant in this case.  The Act to amend the Criminal Records Act and to amend another Act in consequence, S.C. 2000, c. 1, s. 4 (proclaimed in force August 1, 2000 by Order SI/2000-73, vol. 134, p. 2033), amends the French and English versions.  For example, in the French version of s. 5 the words “entraîne le classement du dossier ou du relevé de la condamnation à part des autres dossiers judiciaires” are substituted for “efface les conséquences de la condamnation”.  In my view, these changes embody the meaning that Parliament has always intended the Act to have.  Apart from the various disqualifications that a conviction may lead to under federal statutes or regulations, as referred to in s. 5, the other “conséquences” associated with the existence of a criminal record that the pardon sought to eliminate for the future are all covered by keeping the information associated with the existence of a criminal record separate and apart.  That information then becomes private to the individual and cannot be disclosed without the prior approval of the Minister.  Professor Dumont shares this view:

 

[translation]  This legal construction of the stigmatization or legal recognition of the fiction of dishonour, is so evident that the pardon process in the Criminal Records Act  consists, first and foremost, of terminating the use and distribution of the information recorded in the criminal record, restoring the confidential status of information relating to an individual’s criminal history and returning that information to the private sphere.  From that point of view, the Act creates not so much a procedure for obtaining a pardon as a mechanism consisting of withdrawing information relating to an individual’s criminal history from circulating.  [Emphasis added.]

 

(“Le casier judiciaire : criminel un jour, criminel toujours?”, in Le respect de la vie privée dans l’entreprise :  de l’affirmation à l’exercice d’un droit  (1995), at p. 115)

 


120                           In the case at bar, the Court of Appeal reached the same conclusion by referring to the other provisions of the Act.  “Every component [of an Act] contributes to the meaning as a whole, and the whole gives meaning to its parts”:  P.-A. Côté, The Interpretation of Legislation in Canada (3rd ed. 2000), at p. 308; see also Dubois v. The Queen, [1985] 2 S.C.R. 350, at p. 365 (per Lamer J.).  Several provisions of the Criminal Records Act  would be meaningless if the construction suggested by the appellant were accepted.  Sections 6(2)  and 6(3)  C.R.A.  permit the Minister to disclose the conviction if he is satisfied that the disclosure is desirable in the interests of the administration of justice or for any purpose related to the safety or security of Canada or any state allied or associated with Canada.  Section 7  C.R.A.  permits the National Parole Board to revoke the pardon if the person is subsequently convicted of another offence, is no longer of good conduct or knowingly made a false or deceptive statement in relation to the application for the pardon.  Finally, s. 8  C.R.A.  specifically provides that no person shall ask a question relating to an application for federal employment that by its terms requires the applicant to disclose a conviction in respect of which a pardon has been granted.  The purpose of all these sections is to eliminate the potential future effects of the conviction, which would be pointless if the conviction were deemed never to have existed.  Section 8  is particularly instructive for our purposes.  If the very essence of the pardon were that the pardoned person could deny the existence of the conviction, Parliament would not have felt the need to enact that provision.  (R. P. Nadin-Davis, “Canada’s Criminal Records Act :  Notes on How Not to Expunge Criminal Convictions” (1980-81), 45 Sask. L. Rev. 221)

 


121                           It is also useful to draw a comparison with certain federal statutes.  Interpretations favouring harmony between the various statutes enacted by the same government should indeed prevail.  This presumption is even stronger when the statutes relate to the same subject matter:  Côté, supra, at pp. 342 et seq.  Thus, as I have already pointed out, s. 748(3)  of the Criminal Code  expressly provides that where the Governor in Council grants a free pardon to any person, that person shall be deemed thereafter never to have committed the offence in respect of which the pardon is granted.  Furthermore, s. 36(1)  of the Young Offenders Act, R.S.C. 1985, c. Y‑1 , expressly provides that the finding of guilt relating to a young offender for whom the court has directed an absolute discharge or for whom all the dispositions and all their terms have ceased to have effect shall be deemed never to have existed.  The Criminal Records Act  contains no provision of such scope.  The fact that Parliament opted instead to use the term “réhabilitation” in the French version of the Act, thus stressing the future effects of the law, was therefore not random.

 

122                           Accordingly, I find, as did the Court of Appeal, that an objective analysis of the Act does not support the appellant’s argument that the pardon retroactively wipes out his conviction.  Professor Dumont accurately summarizes the essence of what I have said:

 

[translation]  It seems clear that the Criminal Records Act  grants a pardon which is designed only to put an end to the negative effects of a conviction. An administrative pardon, which adopts the features of a partial and conditional pardon, is not equivalent to a retroactive acquittal, as a free pardon may be, by virtue of the Royal prerogative or the Criminal Code ; accordingly, an administrative pardon does not logically result in retroactive annulment or neutralization of the conviction.  [Emphasis in original.]

 

(“Le casier judiciaire :  criminel un jour, criminel toujours?”, supra, at p. 132)

 

123                           In conclusion, I will say a few words about the appellant’s argument that in order to determine the effect of the pardon he was granted under the Criminal Records Act , the Court should adopt an “objective-subjective approach”, which would involve both doing an objective analysis of the law and considering the opinion the appellant subjectively formed about his pardon.  I do not believe that the way in which a statute is interpreted may vary, depending on the opinion formed by an individual, especially when that person is himself a member of the legal profession.

 


124                           On the other hand, even if we did have to put ourselves in the appellant’s position, I would point out that the question asked by the selection committee did not relate directly to the appellant’s criminal record; rather, it but was much more general in scope, referring to his “trouble with the law”.  That expression can cover numerous situations, ranging from a mere arrest to being charged with an offence and awaiting trial, or being charged and subsequently acquitted after a trial.  It can also refer to disciplinary proceedings initiated by the professional order to which the person belongs.  Ultimately, it could even include being a party to a civil or family law proceeding.  It therefore also includes the actual fact of the appellant’s pardon.

 

125                           Furthermore, the Court of Appeal held that the appellant’s record contained sufficient evidence tending to establish that he was aware of the meaning and effect of the Criminal Records Act , and that he deliberately and subjectively ignored them.  In its report, it states that the appellant’s decision to conceal his convictions was not the result of a good faith misinterpretation of the applicable laws ([1998] R.J.Q. 2956, at p. 2972).  After hearing lengthy testimony, including that of the appellant, and analyzing the evidence adduced, the majority of the committee of inquiry summarized the situation as follows:

 

[translation]  He understood the importance and the gravity of the duty of transparency during the first selection process: he said that to him it was obvious, “natural”, he had to answer the question.

 

After striking out with the second selection committee, he was content to do some extremely cursory research into the effects of the pardon. Just a little more research would easily have led him to a different conclusion.

 

Without regard for the importance of the office he was applying for, he decided, of his own volition, to minimize the consequences of his actions.  He looked at the law and interpreted it in his own interests.  He rationalized the whole thing, made a mental reservation, and constructed an opinion that offended reality using arguments which did not, in the form in which he presented them, amount to a lie.  He deliberately failed to reveal a fact of which the committee ought to be made aware.  He substituted his own judgment for the judgment of the selection committee.  [Emphasis in original.]

 


126                           When the appellant appeared before the selection committee in 1996, it was not to assert his right to be appointed as a judge.  An appointment to the judiciary is more in the nature of a “privilege” granted to a person who has all the qualities considered to be necessary for the office.  If, as the appellant contends, the Criminal Records Act  leaves room for doubt or for more than one interpretation, he should have left it up to the selection committee to decide this.

 

127                           I therefore find that while a pardon does not make the past go away, it expunges consequences for the future.  The integrity of the pardoned person is restored, and he or she need not suffer the effects associated with the conviction in an arbitrary or discriminatory manner, a situation which the Canadian and Quebec charters tend to protect against.  I will now consider those provisions.

 

5.  The Protection Afforded by the Canadian and Quebec Charters

 

(a)  Section 15 of the Canadian Charter

 

128                           The appellant acknowledges that it is possible to interpret the provisions of the Judicial Code of Ethics and those of the Regulation respecting the procedure for the selection of persons apt for appointment as judges so that they are compatible with s. 15  of the Canadian Charter .  However, he argues that the government’s actions in this case infringed his right to equality, to which he is entitled regardless of his criminal record.  He made two separate sub-arguments which I will now address.

 


129                           First, he believes that he was discriminated against by the members of the first three selection committees based on his criminal record.  He referred to the testimony of certain members, Judge Jean-Pierre Bonin and Nicole Gibeau, who expressed the view that having a criminal record disqualified him from holding the office of judge.  What this boils down to is: either the appellant raises this situation to demonstrate the seriousness of the prejudice he has suffered, or he does so in order to challenge the propriety of the question at an interview for the purpose of recommending persons qualified for appointment as judges.  In the first case, I would point out that the motives of the selection committee members are not on trial here and that if they were this Court is not the appropriate forum for settling that question.  In the second case, as I will explain, when I analyze the second argument, having a criminal record is relevant as a criterion for assessing a person’s capacity to be appointed as a judge.  I would therefore reject this first argument.

 

130                           Second, the appellant contends that the decision by the Minister of Justice to initiate the removal process under s. 263 C.J.A. and ss. 2, 4, 5 and 10 of the Judicial Code of Ethics was actually based on the fact that he has a criminal record, not that he refused to disclose it, which was merely a pretext.  He therefore believes that his right to equality, which is protected by s. 15  of the Canadian Charter , has been infringed.  I would start by saying that, like the Court of Appeal and the Conseil de la magistrature, I take the view that the decision by the Minister of Justice was based primarily, perhaps exclusively, on the appellant’s failure to disclose to the members of the selection committee that he had been in trouble with the law.  On the other hand, if it were also related in part to the fact that he had a criminal record, I do not find that this would infringe the appellant’s equality rights.

 


131                           In Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497, this Court held that the three-stage analysis that applies in respect of s. 15(1)  had to assign considerable weight to the subject-matter and context of the infringement.  At paragraph 88, Iacobucci J. stated that anyone who claimed under that subsection must prove the following three aspects:  (1) the existence of differential treatment between the claimant and others based on personal characteristics, (2) differential treatment based on enumerated or analogous grounds, and (3) differential treatment that discriminates by imposing a burden upon or withholding a benefit from the claimant and thereby infringing his or her dignity (that is, perpetuates or promotes the view that the individual is less capable or worthy of recognition or value as a human being or as a member of Canadian society, equally deserving of concern, respect, and consideration).  A person who claims under s. 15(1)  may rely on a series of contextual factors in order to demonstrate that his or her dignity has been infringed.

 

132                           In the case at bar, if the decision by the Minister to lodge an ethics complaint against the appellant was based on the existence of a criminal record, I acknowledge that there was differential treatment between the appellant and others who did not have such a criminal history.  I also assume, for our purposes, but without deciding the issue, that a criminal record is an analogous ground of discrimination for the purposes of s. 15(1)  of the Canadian Charter .  However, the Minister’s decision cannot be regarded as discriminatory when we consider the relevant contextual factors: the decision took into account the appellant’s situation as a whole, as well as the situation of people who come before the court and are entitled to the highest degree of integrity, impartiality and independence on the part of the members of the judiciary in whom they place their confidence.  I will now consider the allegations that the appellant’s rights under the Quebec Charter were infringed.

 

(b)  Quebec Charter

 

(i)  Right to Dignity, Honour and Respect for Reputation and Private Life

 


133                           The appellant contends that his rights to dignity, honour, reputation and private life, which are protected by ss. 4 and 5 of the Quebec Charter, were infringed in this case and that certain members of the government disclosed information that was then confidential by virtue of his pardon and under ss. 5 and 6(2)  C.R.A.  He adds that he was the victim of an impassioned public debate in the media and the political arena, during which some elected representatives or journalists made insulting, defamatory and untrue remarks regarding the nature of his involvement in the events of the October Crisis.  He was successively accused of having been a member of the F.L.Q. and of having participated in the kidnapping and even the murder of the minister Pierre Laporte.  That these statements are false is not in dispute.  However, I do not intend to state an opinion on these arguments, since this Court is not the appropriate forum in which to do so.  As I said earlier, the motives of members of the government are not on trial here, which members in any event enjoy parliamentary immunity when addressing the legislative assembly; nor is this an action for damages against journalists.  There is no evidence before us on these matters.  I will therefore refrain from any comment whatsoever.

 

(ii)  Protection From Discrimination

 


134                           The appellant contends that the complaint lodged by the Minister of Justice was based on the fact that he had a criminal record, while his failure to disclose it was really only a pretext.  Thus, he submits that he was penalized in his employment owing to the mere fact that he was convicted of a criminal offence even though he had been pardoned for that offence, contrary to s. 18.2 of the Quebec Charter.  He also contends that he was indirectly discriminated against when he was asked the illegal and abusive question by the members of the selection committees regarding his criminal history: “Have you ever been in trouble with the law or with the Barreau?”  The appellant suggests that, in order to comply with the Quebec Charter requirements, the question should have been formulated as follows:  “Have you ever been convicted of a penal or criminal offence connected with the function of judge, for which you have not been pardoned?”

 

135                           I would start by saying, as the respondents say in their factum, that lodging a complaint merely triggered the disciplinary process that was conducted in respect of the appellant in this case.  Since then, both the committee of inquiry of the Conseil de la magistrature and the Quebec Court of Appeal have considered the appellant’s conduct.  It must be borne in mind that this Court is hearing an appeal from the report of the Court of Appeal; we should therefore examine these issues from the standpoint of the reasons stated by the Court of Appeal in support of its recommendation for removal rather than from the standpoint of the complaint by the Minister of Justice.

 

136                           First, we must determine whether the committee for the selection of persons qualified for appointment as judges could legally, and without discriminating, ask a question concerning the appellant’s trouble with the law.  In my view, the provisions of the Quebec Charter are of no help in preventing an employer, assuming that the selection committee were an employer, from asking him a question of this nature during an interview.  As the Court of Appeal points out, the Quebec Charter draws a clear distinction between the protection it affords against the discriminatory collection of information and protection against the discriminatory use of that information.

 


137                           Section 18.1 provides that no one may, in an employment interview, require a person to give information regarding any ground mentioned in s. 10 unless the information is useful for the application of s. 20.  First, as I will explain below, it is uncertain whether judicial office is included in the expression “employment” in ss. 18.1 and 18.2; if that is not the case, the appellant would not be protected by the Quebec Charter against a question concerning his criminal record.  Second, if judicial office were included, a criminal record, even one for which a pardon has been granted, is not included in the grounds listed in s. 10.  Nor is it included in the concept of social condition, which appears in that section: see Commission des droits de la personne du Québec v. Cie Price Ltée, J.E. 81‑866 (Sup. Ct.); Commission des droits de la personne du Québec v. Ville de Beauport, [1981] C.P. 292. In fact, it was in response to the conservative approach taken by the courts in interpreting social condition that the legislature amended the Quebec Charter in 1982 by adding s. 18.2: S.Q. 1982, c. 61, s. 5; see also Singleton, supra, at p. 472. Finally, even if the information related to one of the grounds listed in s. 10, the question would still be permitted in the selection process for persons qualified for appointment as judges, since the distinction is based on the aptitudes or qualifications required for judicial office, which is deemed non-discriminatory by s. 20 of the Quebec Charter.

 


138                           The appellant cited the fact that he had a pardon as justification for answering “no” to the selection committee’s question.  As I explained earlier, the appellant’s pardon did not mean that he could deny the existence of his conviction or, more generally, that he had been in trouble with the law.  Thus, the pardon did not relieve the appellant of the obligation to answer the question asked by the committee, since it did not make the matter irrelevant, having regard to s. 18 of the Regulation respecting the procedure for the selection of persons apt for appointment as judges, according to which the committee determines the competence of the candidate for appointment as a judge.  However, it did mean that the appellant could, as he did at interviews prior to the one that led to his candidacy being recommended, provide an explanation regarding his conviction and state that he had been pardoned.

 

139                           At the hearing, counsel for the appellant also suggested to the Court that since the Minister of Justice could have obtained information about the appellant’s criminal record by referring to the file prepared by the police under s. 7 of the Regulation respecting the procedure for the selection of persons apt for appointment as judges, the appellant could legitimately not have answered the question asked by the committee and relied on the police investigation.  In his submission, the Minister has two separate sources for obtaining information and running checks when considering candidates qualified for appointment as judges: one is the selection committee and the other is the police.  In this case, for a reason that remains unexplained, although the information regarding the appellant’s conviction was in the database, it escaped the notice of the police and was not communicated to the Minister.  While I recognize that the file created by the police is a supplementary source of information, it cannot replace the selection committee, which has a duty to use every means at its disposal to satisfy itself as to the quality of the candidate, and is accordingly entitled to know whether the candidate has been in trouble with the law and even that he has been pardoned, regardless of whether or not the police authorities have created a file.  I therefore find that the appellant could have been asked the question about being in trouble with the law by the members of the selection committee without infringing the provisions of the Quebec Charter.

 


140                           There is one remaining question: can the provisions of the Quebec Charter prevent the appellant from being removed?  Section 18.2 provides that no one may dismiss, refuse to hire or otherwise penalize a person in his employment owing to the mere fact that he was convicted of a penal or criminal offence, if the offence was in no way connected with the employment or if the person has obtained a pardon for the offence.  Whether this section applies will depend on whether four essential conditions are met: (1) a dismissal, a refusal to hire or any kind of penalty; (2) in the person’s employment; (3) owing to the mere fact that the person was convicted of a penal or criminal offence; (4) if the offence was in no way connected with the employment or if the person has obtained a pardon for the offence.  It will also depend, above all, on whether this provision is applicable to judicial office.  On that point, the Court of Appeal noted that it would be somewhat surprising if the prohibition in s. 18.2 of the Quebec Charter were to prevent the fact that someone had criminal convictions from being taken into account in recruiting a judge.  That court found it hard to believe that the legislature implicitly wished to deprive the government of the discretion to refuse to vest judicial authority, especially in criminal matters, in a person whose past [translation] “might sometimes make counsel or the judge himself ill at ease”.  I share this opinion.  I am satisfied, after careful examination of the conditions that must be met if s. 18.2 is to apply, that it cannot apply to judges.  However, I propose to consider those conditions one by one.

 


141                           First, insofar as judicial office is an employment and a person can be dismissed from that employment, there is no doubt that the appellant runs the risk of being dismissed or at least severely penalized by the recommendations made by the Conseil de la magistrature and the Court of Appeal, and so the first condition has been met.  However, the Court of Appeal held that judicial office was not an employment within the meaning intended by s. 18.2, by reason of the history of the judiciary and the nature, characteristics and requirements of the office.  These findings in fact reflect the constitutional reality of judicial office, which requires that judges not be subject to any bureaucratic higher authority, or be a party to any relationship of subordination such as is traditionally characteristic of the employer-employee relationship, other than in respect of certain administrative aspects of the office such as workload allocation and scheduling of court sittings and certain duties associated with the enforcement of judicial ethics, which are assigned to the chief judge: see s. 96 C.J.A. and Ruffo, supra, at para. 59.  In addition, although judges perform their functions for remuneration, their financial security is one of the three essential conditions of judicial independence for the purposes of s. 11 (d) of the Canadian Charter  and the preamble to the Constitution Act, 1867 , which require that the right to salary and pension be established by law and that any salary reduction, increase or freeze be the subject of a specific process allowing avoidance of any possibility of real or perceived interference by the Executive:  Valente, supra, at p. 704, and Reference re Remuneration of Judges of the Provincial Court, supra, at paras. 131 and 287.  Finally, the hiring and firing process for judges is substantially different from the normal procedure used for most employments.  As the case at bar illustrates, the appointment and removal of members of the judiciary are governed by a series of constitutional requirements that are intended to protect their security of tenure: Valente, at p. 698.

 


142                           The restrictive nature of s. 18.2 of the Quebec Charter has been a topic of some comment in the legal literature.  Singleton criticizes the limited scope of the protection provided against this type of discrimination.  In his view, s. 18.2 would not cover the professions:  Singleton, supra, at p. 474.  See also Dumont, “Le casier judiciaire : criminel un jour, criminel toujours?”, supra, at pp. 134 et seq.  I find it to be particularly instructive that s. 45 of the Professional Code provides, with respect to all the professions it governs, that any Bureau established within a professional order may refuse to issue a permit or to enter on the roll any applicant who has been the subject of a decision finding him guilty of a criminal offence which is related to the practice of the profession, unless he has obtained a pardon.  This provision would seem to supplement the protection provided by the Quebec Charter in respect of employment and to fill the gaps it left.  Thus, having regard to the choice to use the word “employment” in s. 18.2, I am of the view that it was not the legislature’s intent to include the judiciary.  However, I will nonetheless consider whether the final two conditions apply, for the purposes of the present analysis.

 


143                           What must now be determined is whether the appellant was dismissed owing to the mere fact that he was convicted of a criminal offence.  The complaint lodged by the Minister of Justice against the appellant refers to failure to disclose important information concerning the trouble he was in with the law, and not to the fact that he had a conviction.  The Minister alleges that [translation] “Judge Therrien may have been in trouble with the law in the early 1970s” and “may have failed to disclose that information in response to questions asked in that regard by the selection committee members”.  While the majority of the committee of inquiry did not directly address the issue from the standpoint of s. 18.2, they stressed the appellant’s duty of transparency at the selection interviews and found that this [translation] “reluctance, mental reservation or rationalization” undermined public confidence in him.  It is also  plain from the report of the Court of Appeal that the appellant’s failure to disclose that he had a criminal record was the only reason that could have been regarded as justifying its recommendation for removal.  I agree with that assessment of the situation; the appellant’s failure to reveal that he had been in trouble with the law is undoubtedly instructive for a selection committee charged with assessing the qualifications and aptitudes of a candidate for judicial appointment.  I do not see any other argument that was not considered by the Court of Appeal and that persuades me to differ with its findings.  I therefore find that the recommendations made by the Conseil de la magistrature and the Court of Appeal were not made owing to the mere fact that the appellant had been convicted of a criminal offence; rather, they were made solely because he had failed to disclose his criminal record to the selection committee.

 

144                           On the last remaining condition, I am satisfied that it was not the intent of the legislature that s. 18.2 should apply to judges.  This condition in fact contains two separate conditions:  (a) the offence was in no way connected with the employment, or (b) regardless of any connection with the employment, the person has obtained a pardon for the offence.  The appellant falls within the second situation since on August 20, 1987, the Governor General granted him a pardon under the Criminal Records Act  and since the Quebec Charter makes no distinction based on which type of pardon may have been obtained.

 


145                           The second situation is one in which no exception to the application of that provision is possible.  If a pardon has been granted and the other three conditions are also met, the probable finding will be that there was discrimination against the person who received the pardon.  It should be noted that s. 20, which provides that a distinction based on the aptitudes or qualifications required for an employment is deemed non-discriminatory, has no application in respect of s. 18.2.  Section 18.2 is a self-contained provision and has its own rules governing exceptions.  This internal justification mechanism would otherwise duplicate the mechanism in s. 20.  See C. Brunelle, “La Charte québécoise et les sanctions de l’employeur contre les auteurs d’actes criminels œuvrant en milieu éducatif” (1995), 29 R.J.T. 313, at pp. 336-37; Singleton, supra, at p. 473, and Commission des droits de la personne et des droits de la jeunesse du Québec, Lignes directrices pour l’application de l’article 18.2 (document adopted at the 306th (special) session of the Commission held on May 12,1988, by its resolution COM‑306‑9.1.2), at p. 4.  A provision of that nature can hardly be reconciled with the requirements of judicial office. In my opinion the legislature, being concerned with preserving the independence, impartiality and integrity of the judiciary, cannot have intended to deprive the government of its discretion to refuse to vest judicial authority in candidates whose past would be likely to undermine the invaluable confidence of the public in its justice system.  For these reasons, I find that s. 18.2 does not apply to the appellant’s situation.  I will now consider the nature of the sanction that the majority of the Conseil de la magistrature and the Court of Appeal chose to impose on him.

 

6.  The Choice of the Proper Sanction

 


146                           The complaint lodged against the appellant alleges that he failed to disclose that he had been in trouble with the law during the 1970s, in response to questions he was asked on that subject by the members of the committee to select persons qualified for appointment as judges.  In so doing, he allegedly failed in his duty to uphold the integrity and independence of the judiciary and the duty to perform the duties of his office with dignity and honour, in accordance with s. 262 C.J.A. and ss. 2, 4, 5 and 10 of the Judicial Code of Ethics.  The majority of the committee of inquiry established by the Conseil de la magistrature found that the appellant’s conduct was so manifestly and profoundly destructive of public confidence in him and in the justice system as a whole that a reprimand could not restore that confidence.  Accordingly, because of the gravity and the continuing nature of the offence, it was appropriate to recommend the applicant’s removal.  The inquiry panel of the Court of Appeal made the same finding.  In the opinion of that Court, the appellant’s conduct was so blameworthy that it entitled the government to remove him without violating the principle of judicial independence.  The fact that he deliberately concealed his conviction and deprived the selection committee of relevant information concerning his competence to be appointed as a judge warrants the recommendation that his commission be revoked.

 

147                           The public’s invaluable confidence in its justice system, which every judge must strive to preserve, is at the very heart of this case. The issue of confidence governs every aspect of this case, and ultimately dictates the result.  Thus, before making a recommendation that a judge be removed, the question to be asked is whether the conduct for which he or she is blamed is so manifestly and totally contrary to the impartiality, integrity and independence of the judiciary that the confidence of individuals appearing before the judge, or of the public in its justice system, would be undermined, rendering the judge incapable of performing the duties of his office (Friedland, supra, at pp. 80-81).

 

148                           In applying this test to the appellant’s situation, we cannot disregard the context in which this disciplinary proceeding took place.  First, as I said in the introduction to this part of the reasons, the legislature has chosen to assign the important responsibility of determining whether the conduct of a provincial court judge warrants a recommendation for removal from office exclusively to the Court of Appeal, under s. 95 C.J.A.  This is a very special role, perhaps a unique one, in terms of both the disciplinary process and the principles of judicial independence that our Constitution protects.  Accordingly, this Court should only review the assessment made by the Court of Appeal if it is clearly in error or seriously unfair.

 


149                           We also cannot disregard the fact that the appellant’s situation makes this an unprecedented case in a number of respects.  Not only is it most exceptional for proceedings that may ultimately lead to removal of a judge to be initiated, but the actions that lie at the heart of the proceedings against him took place in a very particular context.  The appellant’s failure to disclose his conviction occurred during the process to select persons qualified for appointment as judges and not during the exercise of his judicial functions.  This distinction is of some consequence in terms of how certain fundamental principles relating to judicial independence will be applied.  As I said earlier, the Canadian Constitution protects the security of tenure of members of the judiciary by ensuring that they are protected against any arbitrary interference by the Executive.  While a review of the actions of the judge, in his capacity as a judge, involves a high risk of interference by the Executive in the performance of his judicial functions and raises questions about the independence of the judiciary, when we examine the circumstances surrounding the appointment of this judge and, more specifically, the statements he made when he was still only a candidate, we need have fewer concerns in that regard.  In this case, apart from his competence to perform the duties of office, it is the appellant’s qualifications to be appointed as a judge that are in issue.  The appointment of a judge is a sign of confidence in him or her personally:  Ruffo, supra, at para. 106.  The issue before the Court of Appeal was therefore whether the fact that the appellant was not fully candid and had failed to disclose relevant information when he was a candidate for the office of judge betrayed that confidence.

 


150                           When we read the report of the Court of Appeal, it is plain that the Court made a thorough study and a balanced assessment of the appellant’s situation.  It focused its decision on upholding the integrity of the judicial office, and in this we cannot but concur.  In the circumstances, and since it is the judicial forum appointed by the legislature to make determinations concerning the conduct of a judge, and since a recommendation for removal in this case would not amount to arbitrary interference by the Executive in the exercise of the judicial function, I am of the opinion that we should not review the sanction that the Court of Appeal chose to impose.  The appellant’s conduct has sufficiently undermined public confidence, rendering him incapable of performing the duties of his office.  Accordingly, the recommendation that the appellant’s commission be revoked is the necessary conclusion.

 

151                           In closing, I will say that in reaching this conclusion I am not unaware that this case represented, in a sense, an invitation to society to be ever more generous.  The pardon that the appellant was granted is an act of generosity, of brotherhood, but also an act of justice on the part of society.  It is undoubtedly desirable that such gestures be praised and encouraged.  However, we cannot ignore the unique role embodied by the judge in that society, and the extraordinary vulnerability of the individuals who appear before that judge seeking to have their rights determined, or when their lives or liberty are at stake.  Above all, a person who appears before a judge is entitled to have justice done in his or her case, and that justice be seen to be done by the general public.  That kind of generosity is not something that a person can be compelled to offer.  In the specific circumstances of the case at bar, the values of forgiveness and selfless generosity must therefore yield to the values of justice and the all-important integrity of the justice system.

 

VI.  Disposition

 

152                           The constitutional questions are answered as follows:


1.    Is the rule of law — adopted in 1941 (Act to amend the Courts of Justice Act, S.Q. 1941, c. 50, s. 2, assented to on May 17, 1941) and now found in s. 95 of the Courts of Justice Act, R.S.Q., c. T‑16 — allowing the government to remove a judge without an address of the legislature of no force or effect to the extent that it infringes the structural principle of the independence of the judiciary which is guaranteed by the preamble to the Constitution Act, 1867 ?

 

Answer:  No.

 

2.    If the answer to the first question is in the negative, is the rule of law contained in s. 95 of the Courts of Justice Act, R.S.Q., c. T‑16, of no force or effect on the ground of inconsistency with the structural principle of the independence of the judiciary guaranteed by the preamble to the Constitution Act, 1867 , to the extent that the government may dismiss a judge without being bound by the conclusions and recommendations of the report of the Court of Appeal?

 

Answer:  No.

 

153                           For the foregoing reasons, I would therefore dismiss the appeal and affirm the decisions of the Court of Appeal on the motions to dismiss as well as the report by the inquiry panel of the Court of Appeal, without costs.

 

Appeal dismissed.

 

Solicitors for the appellant:  Hébert, Bourque & Downs, Montréal.

 

Solicitors for the respondent the Minister of Justice:  Goodman, Phillips & Vineberg, Montréal.

 

Solicitors for the respondent the Attorney General of Quebec:  Bernard, Roy & Associés, Montréal.

 

Solicitor for the intervener the Attorney General for Ontario:  The Attorney General for Ontario, Toronto.


Solicitor for the intervener the Attorney General for New Brunswick:  The Attorney General for New Brunswick, Fredericton.

 

Solicitors for the interveners the Office des droits des détenus and the Association des services de réhabilitation sociale du Québec:  Grey Casgrain, Montréal.

 

 

 

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