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Ruffo v. Conseil de la magistrature, [1995] 4 S.C.R. 267

 

The Honourable Andrée Ruffo                                                         Appellant

 

v.

 

The Conseil de la magistrature,

the Comité d'enquête,

the Honourable Huguette St‑Louis,

the Honourable Roch St‑Germain,

the Honourable André Bilodeau,

the Honourable Pierre Brassard

and Paul Laflamme                                                                            Respondents

 

and

 

The Honourable Albert Gobeil                                                          Mis en cause

 

and

 

The Attorney General of Quebec                                                     Mis en cause

 

and

 

The Attorney General for Ontario                                                    Intervener

 

Indexed as:  Ruffo v. Conseil de la magistrature

 

File No.:  23127.

 

1995:  March 23; 1995:  December 14.

 


Present: La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin and Iacobucci JJ.

 

on appeal from the court of appeal for quebec

 

                   Constitutional law ‑‑ Charter of Rights  ‑‑ Fundamental justice ‑‑ Independent and impartial tribunal ‑‑ Institutional impartiality ‑‑ Conseil de la magistrature ‑‑ Comité d'enquête ‑‑ Chief Judge of Court of Québec also chairman of Conseil de la magistrature ‑‑ Whether Chief Judge's authority to file complaint against judge of Court of Québec with Conseil de la magistrature violates principles of judicial impartiality and independence guaranteed by s. 7 of Canadian Charter of Rights and Freedoms ‑‑ Whether Chief Judge has influence on members of Conseil de la magistrature and Comité d'enquête that might compromise their impartiality ‑‑ Courts of Justice Act, R.S.Q., c. T‑16, ss. 96, 263, 265.

 

                   Civil rights ‑‑ Impartial hearing by independent tribunal ‑‑ Institutional impartiality ‑‑ Conseil de la magistrature ‑‑ Comité d'enquête ‑‑ Chief Judge of Court of Québec also chairman of Conseil de la magistrature ‑‑ Whether Chief Judge's authority to file complaint against judge of Court of Québec with Conseil de la magistrature violates principles of judicial impartiality and independence guaranteed by s. 23 of Charter of Human Rights and Freedoms ‑‑ Courts of Justice Act, R.S.Q., c. T‑16, ss. 96, 263, 265.

 

                   Administrative law ‑‑ Bias ‑‑ Reasonable apprehension of bias ‑‑ Conseil de la magistrature ‑‑ Comité d'enquête ‑‑ Chief Judge of Court of Québec also chairman of Conseil de la magistrature ‑‑ Chief Judge filing complaint against judge of Court of Québec with Conseil de la magistrature ‑‑ Vindictive tone in wording of complaint ‑‑ Proceedings against judge referred to in complaint conducted with diligence ‑‑ Whether specific circumstances of case might give rise to reasonable apprehension of bias.

 

                   Courts ‑‑ Judges ‑‑ Judicial ethics ‑‑ Whether Chief Judge of Court of Québec has authority to file complaint against judge of that court with Conseil de la magistrature ‑‑ Courts of Justice Act, R.S.Q., c. T‑16, ss. 96, 263, 265.

 

                   Courts ‑‑ Judges ‑‑ Judicial ethics ‑‑ Duty to act in a reserved manner ‑‑ Vagueness in constitutional sense ‑‑ Judicial Code of Ethics, (1982) 114 G.O. II, 1253, s. 8.

 

                   The appellant is a judge of the Court of Québec, Youth Division, noted for her many public statements.  In 1988, the director general of a social services centre filed a complaint against her with the Conseil de la magistrature (the "Conseil") alleging that she had committed a number of breaches of the Judicial Code of Ethics.  The Conseil designated one of its members to examine the complaint.  After hearing the appellant's and the complainant's versions of the events, he recommended that the Conseil hold an inquiry into the complaint.  The Conseil set up a Comité d'enquête.  At the conclusion of its inquiry, this Comité concluded that the Code of Ethics had been breached and a majority of the members recommended that the Conseil reprimand the appellant.  Despite the Conseil's reprimand, the appellant continued her public activities and statements.  The Chief Judge of the Court of Québec then laid his own complaint against the appellant with the Conseil, in which he alleged that the appellant had acted in a manner inconsistent with the Code of Ethics, in particular by breaching her duty to act in a reserved manner and uphold the independence of the judiciary.  The Conseil itself ruled on the admissibility of this complaint without hearing the parties and set up a Comité d'enquête made up of five members, including three Court of Québec judges.  The Chief Judge did not participate in this session, at the conclusion of which the Conseil called the appellant to a subsequent meeting in order to hear her views on whether she should be suspended for the duration of the inquiry.  At that meeting the Conseil denied the appellant's request for an adjournment in order to urge preliminary exceptions asking for the dismissal of the complaint and raising the lack of jurisdiction of the Conseil and the Comité over the case, concluding that it did not have to reconsider jurisdictional issues on which it had already ruled at its meeting on the admissibility of the complaint.  The appellant then filed a motion in evocation with the Superior Court, in which she argued that the Conseil and Comité members did not have the necessary impartiality to make a fair and equitable decision concerning her.  She further argued that ss. 263 and 265 of the Courts of Justice Act ("CJA"), if they are to be interpreted as authorizing the Chief Judge of the Court of Québec to lodge a complaint with the Conseil, violate the rights guaranteed by s. 7  of the Canadian Charter of Rights and Freedoms  and s. 23 of the Quebec Charter of Human Rights and Freedoms.  The Superior Court dismissed the motion.  The Court of Appeal affirmed this judgment in a majority decision.  Before this Court, the appellant made the same arguments.  She also argued that s. 8 of the Code of Ethics, which provides that judges of the Court of Québec should act in a reserved manner, violates s. 2 (b) of the Canadian Charter  and is void on the ground of vagueness.

 

                   Held (Sopinka J. dissenting):  The appeal should be dismissed.

 

                   Per La Forest, L'Heureux‑Dubé, Gonthier, Cory, McLachlin and Iacobucci JJ.:  The right to be tried by an independent and impartial tribunal is an integral part of the principles of fundamental justice protected by s. 7  of the Canadian Charter , and the constitutional guarantee of an independent and impartial tribunal includes the concept of institutional impartiality.  The protection provided by s. 7  is essentially the same as is provided by s. 23 of the Quebec Charter.  In the present case, ss. 263 and 265 CJA do not violate the rights guaranteed by ss. 7  and 23.

 

                   Sections 263 and 265 CJA authorize the Chief Judge of the Court of Québec to lay a complaint with the Conseil against a judge of his court.  Under s. 248(a) CJA the Chief Judge is the chairman of the Conseil, and ss. 263 and 265 provide that any person may lodge a complaint with the Conseil, including a member of the Conseil, although a member cannot participate in the examination of the complaint in such a case.  The key role given to the Chief Judge in ethical matters under s. 96(3) CJA is simply the expression of a reality that is consistent with general practice and gradual developments over time.  The supervisory powers of chief judges over ethics are inherent in the exercise of their functions.  In view of the Chief Judge's preferred position, the power to lay a complaint for a breach of the Code of Ethics is therefore an intrinsic part of his responsibility as Chief Judge.

 

                   As regards institutional impartiality, it cannot be concluded from an examination of the powers conferred on the Chief Judge of the Court of Québec by the CJA that they might compromise the impartiality of members of the Conseil or the Comité d'enquête in dealing with a complaint lodged by the Chief Judge.  These powers are largely administrative in nature and as such are not liable to compromise the impartiality of Conseil or Comité members in dealing with a complaint.

 

                   The Conseil is responsible for receiving and examining complaints lodged by any person against a judge for failure to comply with the Code of Ethics and, if an inquiry is necessary, it establishes a Comité d'enquête for that purpose consisting of five persons chosen from among its members.  Under the Code of Ethics, these members must perform this function in an impartial manner.  When the inquiry is completed, the Comité submits its recommendations to the Conseil.  Proceedings before the Comité are not similar to an adversarial trial.  The complainant is not a prosecutor on whom the burden of proof lies.  Rather, the Comité's inquiry is intended to be the expression of purely investigative functions and, in light of this, the actual conduct of the case is the responsibility not of the parties but of the Comité itself.  The complaint is merely what sets the process in motion.  It does not initiate litigation, which 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:  its primary role is to search for the truth.  The concept of "party" at a Comité hearing does not change the essence of the institution in question.  Where the Chief Judge makes use of the disciplinary process by taking the initiative of laying a complaint, there is therefore no reason to think that the Conseil and its Comité do not, in the eyes of a reasonable and well‑informed observer, have the impartiality required to carry out their duties.  The Chief Judge's authority under the CJA is essentially administrative and his moral authority, which is naturally associated with his status and functions, is not restrictive and is part of the context in which all judges perform their duties.  This moral authority does not in itself affect the capacity of a judge to decide to the best of his or her knowledge and belief and on the basis of the relevant factors.  Finally, the existence of a friendly relationship between the Chief Judge and the members of the Conseil and the Comité d'enquête is not liable to compromise their impartiality.  Such an assertion has no legal basis and challenges the dignity and professionalism of the judiciary and its Conseil.

 

                   With respect to case‑by‑case impartiality, a reasonable and well‑informed observer would not apprehend in this case that the Conseil was unable to make an impartial decision.  The main reason for the Chief Judge's complaint was a general concern with the threat that the appellant's overall conduct represented to judicial institutions and the public's respect for them.  The fact that the Chief Judge chose to rely on documents from the same "media monitoring services" agency that had already provided documents to support the first complaint laid against the appellant does not indicate any sort of collusion.  There is no reason that the same documents could not be used for separate purposes.  The appellant's general conduct was not in issue in the context of the first complaint.

 

                   As regards the issue of the Conseil's precipitous conduct, its decision to depart from the usual procedure by not appointing an examiner at the initial stage of examining the complaint cannot be seen as evidence of bias.  The purpose of appointing an examiner, which is not mandatory, is solely to assess whether there are grounds for an inquiry.  In the present case, such an assessment was made possible not only by the extensive information provided by the Chief Judge in support of his complaint, but also by the fact that most of the information submitted to the Conseil was already in the public domain.  Moreover, in this case the duty to act fairly did not mean the appellant had to be given the opportunity to express her views during the initial examination of the complaint, despite the possible consequences of the decision to hold an inquiry concerning her.  The appointment of an examiner is the first step in a procedure that can itself be described as preliminary, since after the formal inquiry the Conseil and the Comité can of their own initiative only reprimand the judge concerned or recommend that removal proceedings be initiated.  Finally, the hearing on the suspension of the appellant did not indicate any precipitous conduct that might give rise to a reasonable apprehension of bias on the part of the Conseil members.  The Conseil was already aware of certain facts that could prima facie have justified a suspension during the proceedings, and the nature of the complaint put directly in issue the appellant's ability to act with the confidence of the parties and to continue to carry out her duties in a manner consistent with public order.  By inviting the appellant within the 30‑day period provided for by the CJA for beginning the inquiry, the Conseil gave itself enough time to make an informed decision on suspension before the inquiry began.

 

                   The complaint's tone and language must be assessed on the basis of the specific nature of the complaint, which focuses on an overall situation involving both a judge's conduct and the public's possible perception thereof.  Because of the general nature of the duty to act in a reserved manner, it was necessary for the complainant to specify and explain the relevant aspects that he felt might impair the appellant's ability to perform her duties.  Although the complaint resembles an indictment because of its categorical tone, the complainant cannot be criticized for setting out facts and conduct that were the matter to be assessed by the Comité d'enquête.  The complaint could have been worded more neutrally, but it cannot be said that it made accusations based on supposed intentions.  The Chief Judge's concerns related not to illegitimate intentions but to activities and the public's perception of them.  There is accordingly no reason to fear that Comité members would be influenced by the language of the complaint or the particular status of its author.  The Chief Judge's position carries with it no, or very little, direct authority and his moral authority would be harmful only if it led the decision maker to adopt opinions it did not share.  The Comité is for the most part made up of judicial professionals who are bound by an oath and whose functions essentially require them to be able to decide dispassionately between positions that are opposed and fervently defended.

 

                   Since the Comité d'enquête has not yet had an opportunity to hear the merits of the case, it appears premature for this Court to rule on the constitutionality of s. 8 of the Code of Ethics, which establishes the duty of judges appointed under the CJA to act in a reserved manner, under s. 2 (b) of the Canadian Charter  in a context in which no evidence has been adduced and no light can be shed on the issue by lower court judgments.  There is no reason, however, to find that the duty to act in a reserved manner is void on the ground of vagueness.  More precision cannot be required of ethical rules than their subject matter allows.  The general nature of the duty to act in a reserved manner as it is worded does not, as far as substance is concerned, mean that an area of risk is not sufficiently delineated or that there is no adequate basis for legal debate.

 

                   Per Sopinka J. (dissenting):  For the reasons given by Gonthier J., ss. 263 and 265 CJA do not violate the principles of judicial impartiality and independence guaranteed by s. 7  of the Canadian Charter .  It is also premature for the Court to rule at this stage on the constitutionality of s. 8 of the Code of Ethics.  Although this section is not void for vagueness, it is open to very broad interpretation.  Before determining whether it imposes an unreasonable limitation on freedom of expression, it would be preferable to know how it will be interpreted by the Conseil or the Comité d'enquête.

 

                   Under the CJA, the Conseil receives and deals with complaints made against judges.  Although the legislative framework does not violate the principle of judicial independence and in this sense has no inherent bias, the situation is one which approaches the threshold of tolerance.  An appearance of bias may result in some circumstances even though the process followed is consistent with the statutory rules.  The Chief Judge's power to file a complaint places the Conseil and the Comité d'enquête close to the edge of the fine line that separates impartiality and partiality.

 

                   When the Chief Judge's complaint in this case is analysed in a general context, a number of factors, including the tone and language of the complaint, when taken together raise a reasonable apprehension of bias.  The chairman of the Conseil for the second complaint was the dissenting member of the Comité d'enquête formed to examine the first complaint, who had recommended that removal proceedings be initiated.  A significant part of the Chief Judge's complaint referred to the appellant's disregard of this Comité's decision recommending that she be reprimanded:  all the members of the Comité d'enquête set up to hear the second complaint were members of the Conseil which approved this decision.  A majority of this new Comité was also made up of judges of the Court of Québec.  Although the Comité d'enquête agreed to appoint counsel to handle the presentation of evidence against the appellant, this placed the parties in a rather unusual situation where the opponent of the person defending herself against the complaint was the tribunal's counsel.  Moreover, the proceedings which followed the filing of the second complaint indicate unwarranted haste.  Whether or not the stage of preliminary examination of a complaint is mandatory, the Conseil's decision to bypass it gives the impression that it dealt with the Chief Judge's complaint as evidence and not merely as an allegation.  At the hearing to determine whether the appellant should be suspended during the inquiry, the Conseil refused to hear her on such a serious matter as the jurisdiction of the Conseil and Comité on the ground that it had already ruled on this matter ex parte and proprio motu at the meeting of the Conseil at which it had ruled on the admissibility of the complaint.  The 30‑day period set out in the CJA for beginning the inquiry cannot explain this precipitous conduct, since this period relates simply to the calling of the parties and not the presentation of evidence.  Finally, the Chief Judge's complaint is more in the nature of a judgment.  It contains both opinions and conclusions expressed with considerable vehemence.  The Comité's proceedings are not primarily in the nature of an inquiry, since it may make an official reprimand and may even recommend that removal proceedings be instituted.  In short, although the members of the Comité harboured no prejudices against the appellant, when all the circumstances surrounding this matter are considered a well‑informed person would have a reasonable apprehension of bias.

 

Cases Cited

 

By Gonthier J.

 

                   Referred to:  Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369; R. v. Beauregard, [1986] 2 S.C.R. 56; Pearlman v. Manitoba Law Society Judicial Committee, [1991] 2 S.C.R. 869; R. v. Généreux, [1992] 1 S.C.R. 259; Valente v. The Queen, [1985] 2 S.C.R. 673; MacKeigan v. Hickman, [1989] 2 S.C.R. 796; R. v. Lippé, [1991] 2 S.C.R. 114; R. v. Bain, [1992] 1 S.C.R. 91; Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), [1992] 1 S.C.R. 623; Idziak v. Canada (Minister of Justice), [1992] 3 S.C.R. 631; Irvine v. Canada (Restrictive Trade Practices Commission), [1987] 1 S.C.R. 181; Eur. Court H. R., Le Compte, Van Leuven and De Meyere judgment of 23 June 1981, Series A No. 43; Eur. Court H. R., Albert and Le Compte judgment of 10 February 1983, Series A No. 58; IWA v. Consolidated‑Bathurst Packaging Ltd., [1990] 1 S.C.R. 282; Mackay v. Manitoba, [1989] 2 S.C.R. 357; Danson v. Ontario (Attorney General), [1990] 2 S.C.R. 1086; Hy and Zel's Inc. v. Ontario (Attorney General), [1993] 3 S.C.R. 675; Ruffo v. Conseil de la magistrature, [1989] R.J.Q. 2432 (Sup. Ct.), aff'd (1992), 98 D.L.R. (4th) 202 (Que. C.A.); R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606; Ontario v. Canadian Pacific Ltd., [1995] 2 S.C.R. 1031.

 

By Sopinka J. (dissenting)

 

                   MacDonald Estate v. Martin, [1990] 3 S.C.R. 1235; Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369.

 

Statutes and Regulations Cited

 

An Act to amend the Courts of Justice Act, S.Q. 1945, c. 18, s. 6.

 

An Act to amend the Courts of Justice Act and other legislation to establish the Court of Québec, S.Q. 1988, c. 21, s. 30.

 

An Act to amend the Courts of Justice Act and the Code of Civil Procedure and to establish the Conseil de la magistrature, S.Q. 1978, c. 19, s. 6.

 

An Act to amend the Revised Statutes, 1909, respecting district magistrates, S.Q. 1922, c. 64, s. 1.

 

Canadian Charter of Rights and Freedoms , preamble, ss. 1 , 2 (b), 7 , 11 (d).

 

Charter of Human Rights and Freedoms, R.S.Q., c. C‑12, s. 23 [am. 1982, c. 17, s. 42; am. 1993, c. 30, s. 17].

 

Code of Civil Procedure, R.S.Q., c. C‑25, s. 234 [am. 1992, c. 57, s. 246].

 

Constitution Act, 1867 , preamble.

 

Courts of Justice Act, R.S.O. 1990, c. C.43 [am. 1994, c. 12, s. 16], ss. 49(2)(b), (21), 51.3, 51.4(1), 51.6(6).

 

Courts of Justice Act, R.S.Q. 1925, c. 145, ss. 221, 269.

 

Courts of Justice Act, R.S.Q. 1941, c. 15, ss. 221, 269.

 

Courts of Justice Act, R.S.Q. 1964, c. 20, ss. 75 [sub. 1978, c. 19, s. 6], 76, 118 [am. 1965, c. 17, s. 2 ; am. 1974, c. 11, s. 32], 119.

 

Courts of Justice Act, R.S.Q., c. T‑16 [am. 1988, c. 21], ss. 86, 89, 90, 92, 93, 95, 96, 100, 107, 108, 109, 110, 111, 112, 115, 116, 121, 130, 131 [am. 1989, c. 45, s. 5], 132, 134, 248, 256, 262, 263, 265, 266, 267, 268, 269, 271, 272, 273, 275, 276, 277, 279 [am. 1988, c. 74, s. 9], 281.

 

Courts of Justice Act, R.S.Q. 1977, c. T‑16, ss. 85, 127, 133.

 

Judges of the Provincial Court Act, R.S.N.S. 1989, c. 238, s. 15 [am. 1992, c. 16, s. 27].

 

Judicial Code of Ethics, (1982) 114 G.O. II, 1253 [R.R.Q., 1981, 1271 (Supp.)], ss. 5, 7 , 8, 10.

 

Provincial Court Act, 1978, S.S. 1978, c. 42, s. 17 [am. 1983, c. 11, s. 66(8)].

 

Provincial Court Act, 1991, S.N. 1991, c. 15, ss. 8, 16(3).

 

Provincial Court Act, R.S.B.C. 1979, c. 341, ss. 6.1 [ad. 1981, c. 26, s. 4;  am. 1989, c. 30, s. 41], 15(4) [rep. & sub. 1981, c. 26, s. 12; am. 1989, c. 30, s. 41], (5) [rep. & sub. 1981, c. 26, s. 12], 18(4) [idem].

 

Provincial Court Act, R.S.M. 1987, c. C275, ss. 8.1 [ad. 1989‑90, c. 34, s. 4; am. 1994, c. 14, s. 4], 32(9) [en. 1994, c. 14, s. 6], 36(1) [idem], 37(13) [idem].

 

Provincial Court Act, R.S.N.B. 1973, c. P‑21 [am. 1987, c. 45, s. 8], ss. 6.6(3), 6.8(1), 6.9(1)(b), 6.10(4).

 

Provincial Court Act, R.S.P.E.I. 1988, c. P‑25, s. 10(1) [rep. & sub. 1995, c. 32, s. 10(b)].

 

Provincial Court Judges Act, S.A. 1981, c. P‑20.1, s. 9.

 

R.S.Q. 1909, ss. 3263, 3291a [en. 1922, c. 64, s.1], 3292 [sub. idem].

 

Territorial Court Act, R.S.N.W.T. 1988, c. T‑2, s. 5(4).

 

Territorial Court Act, R.S.Y. 1986, c. 169, s. 20.

 

Authors Cited

 

American Bar Association.  "Model Rules for Judicial Disciplinary Enforcement", August 1994.

 

Canadian Institute for the Administration of Justice. International Centre for Criminology, Université de Montréal.  Compendium of Information on the Status and Role of the Chief Justice in Canada, 1981.

 

Canadian Judicial Council.  Commentaries on Judicial Conduct. Cowansville, Qué.:  Yvon Blais, 1991.

 

Dion, Léon.  "Plus de démocratie pour les juges" (1981), 41 R. du B. 199.

 

Felsky, Martin.  "The Berger Affair and the Independence of the Judiciary" (1984), 42(1) U.T. Fac. L. Rev. 118.

 

Geyh, Charles Gardner.  "Means Of Judicial Discipline Other Than Those Prescribed By The Judicial Discipline Statute, 28 U.S.C. Section 372(c)". In Research Papers of the National Commission on Judicial Discipline and Removal, vol. 1. Washington:  U.S.G.P.O., 1993, 713.

 

Glenn, H. Patrick.  "La responsabilité des juges" (1983), 28 McGill L.J. 228.

 

Glenn, H. Patrick.  "Professional Structures and Professional Ethics" (1990), 35 McGill L.J. 424.

 

Lambert, Pierre.  "Les droits relatifs à l'administration de la justice disciplinaire dans la jurisprudence des organes de la Convention européenne des droits de l'homme", (1995) Rev. trim. dr. h. 161.

 

Lubet, Steven.  Beyond Reproach:  Ethical Restrictions on the Extrajudicial Activities of State and Federal Judges.  Chicago:  American Judicature Society, 1984.

 

MacKay, A. Wayne.  "Judicial Free Speech and Accountability:  Should Judges Be Seen but Not Heard?" (1993), 3 N.J.C.L. 159.

 

McCormick, Peter.  "Judicial Councils for Provincial Judges in Canada" (1986), 6 Windsor Y.B. Access Just. 160.

 

Ouellette, Yves.  "L'imprécision des codes de déontologie professionnelle" (1977), 37 R. du B. 669.

 

Pelland, Léo.  "Aperçu historique de notre organisation judiciaire depuis 1760" (1933‑1934), 12 R. du D. 14.

 

Thomas, James Burrows.  Judicial Ethics in Australia.  North Ryde, N.S.W.:  Law Book Co., 1988.

 

United Nations.  Basic Principles on the Independence of the Judiciary.  Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders held in Milan in 1985.  New York:  United Nations Department of Public Information, 1988.

 

Universal Declaration on the Independence of Justice, adopted at the First World Conference on the Independence of Justice, Montreal, June 10, 1983.  In Shimon Shetreet and Jules Deschênes, eds., Judicial Independence:  The Contemporary Debate.  Dordrecht, The Netherlands:  Martinus Nijhoff Publishers, 1985.

 

Webber, Jeremy.  "The Limits to Judges' Free Speech:  A Comment on the Report of the Committee of Investigation into the Conduct of the Hon. Mr. Justice Berger" (1984), 29 McGill L.J. 369.

 

                   APPEAL from a judgment of the Quebec Court of Appeal, [1992] R.J.Q. 1796, 98 D.L.R. (4th) 176, 48 Q.A.C. 209, 10 Admin. L.R. (2d) 296, affirming a judgment of the Superior Court, [1991] R.J.Q. 2206, dismissing the appellant's motion in evocation.  Appeal dismissed, Sopinka J. dissenting.

 

                   Michel Robert, Q.C., and David Platts, for the appellant.

 

                   Pierre J. Dalphond and Carole Tremblay, for the respondents.

 

                   François Aquin, for the mis en cause the Honourable Albert Gobeil.

 

                   Jean‑Yves Bernard and Marise Visocchi, for the mis en cause the Attorney General of Quebec.

 

                   Peter Landmann, for the intervener.

 

                   English version of the judgment of La Forest, L'Heureux‑Dubé, Gonthier, Cory, McLachlin and Iacobucci JJ. delivered by

 

1                 Gonthier J. ‑‑ This appeal calls for an examination of the disciplinary procedure for provincially appointed judges instituted by the Courts of Justice Act, R.S.Q., c. T‑16 ("CJA").  Two main issues are before this Court:  (1) What is the constitutional validity of ss. 263 and 265 CJA in light of the principles of judicial impartiality and independence?  (2) Is  s. 8 of the Judicial Code of Ethics, O.C. 643‑82, (1982) 114 G.O. II, 1253 (the "Code of Ethics"), which provides that judges should act in a reserved manner, void on the ground of vagueness?

 

I ‑ Facts

 

2                 The appellant is a judge of the Court of Québec, Youth Division.  For a number of years now, Judge Ruffo has been noted for her many public statements and her active involvement on all fronts in ensuring that children have adequate resources.  She displays unlimited devotion to a cause that everyone agrees is eminently worthy.

 

3                 Strictly speaking, the appeal under consideration relates only to a complaint about Judge Ruffo filed with the Conseil de la magistrature (the "Conseil") on October 5, 1990 by the Honourable Albert Gobeil, Chief Judge of the Court of Québec and chairman of the Conseil ex officio.  A brief outline of the events preceding and following this complaint is nevertheless necessary to understand the entire debate properly.

 

4                 On June 28, 1988, the director general of the Centre des services sociaux Laurentides‑Lanaudière ("CSSLL"), Miville Lapointe, filed an initial complaint against the appellant with the Conseil alleging that she had committed a number of breaches of the Code of Ethics.  At the same time, Robert Dupont, the CSSLL's director of youth protection, served on the appellant a motion for general recusation with respect to all the cases in which he was involved.  Given this state of affairs, the appellant and Chief Judge Gobeil met on July 4, 1988 and agreed that she would not sit until the complaint had been dealt with.

 

5                 On July 11, 1988, the Conseil designated Judge André Desjardins to examine the complaint.  He heard the appellant's and the complainant's versions of the events and, in a report submitted to the Conseil a month later, recommended that an inquiry be held into certain aspects of the complaint.  On August 11, 1988, the Conseil set up a Comité d'enquête (the "Comité") composed of five persons chosen from among its members to conduct an inquiry into ten of the fifty‑eight breaches alleged against the appellant by Mr. Lapointe.

 

6                 On December 20, 1988, the first day of the inquiry, the appellant made preliminary objections concerning the jurisdiction and composition of the Conseil and the Comité as well as the procedure followed in examining the complaint.  These objections were dismissed on January 30, 1989.  A motion in evocation was made respecting the Comité's decision to Philippon J. of the Superior Court, who on August 14, 1989 dismissed all the grounds raised by the appellant:  [1989] R.J.Q. 2432.  The appellant appealed this judgment, although she did not ask the Quebec Court of Appeal for a stay order.  In the meantime, in a long letter dated March 21, 1989, Chief Judge Gobeil asked the appellant to make no further public statements and, in particular, to refrain from making any comments about the Youth Division's mandate, her conception of her role as a judge of that court and the situation with respect to resources available for children.  This request by the Chief Judge did not deter Judge Ruffo, who said she was determined to continue her activities.

 

7                 At the conclusion of its inquiry, the Comité concluded in a report submitted to the Conseil on September 19, 1990 that four of the breaches alleged by Mr. Lapointe had occurred.  Three of the four Comité members who heard the case felt that a reprimand was a sufficient sanction in the circumstances.  In a minority report, the Honourable Yvon Mercier, Senior Associate Chief Judge of the Court of Québec and the chairman of the Comité, stated that the appellant's conduct required that removal proceedings be instituted against her.  That same day, the Conseil accordingly reprimanded the appellant in keeping with the Comité's recommendation.  The appellant spoke out publicly as soon as the Comité's report was submitted, commented at length on the results and indicated that she fully intended to continue behaving in the same manner despite being reprimanded.

 

8                 It was in this context that Chief Judge Gobeil laid his own complaint against the appellant with the Conseil on October 5, 1990.  It is a highly detailed document, supported by numerous exhibits, in which the Chief Judge alleges that the appellant acted in a manner inconsistent with the Code of Ethics, in particular by breaching her duty to act in a reserved manner and uphold the independence of the judiciary.

 

9                 On October 17, 1990 the Conseil ruled on the admissibility of the complaint and set up a Comité d'enquête made up of the respondents herein.  Chief Judge Gobeil did not participate in this session.  It should be noted that on this occasion the Conseil chose not to designate one of its members to receive and examine the complaint and that neither the appellant nor the complainant was heard at this stage, unlike the procedure followed when Mr. Lapointe's complaint was laid.  After this session, the Conseil called the appellant to a subsequent meeting in order to hear her views on whether she should be suspended for the duration of the inquiry, pursuant to s. 276 CJA.

 

10               The appellant and her counsel appeared before the Conseil on October 25, 1990 and requested an adjournment in order to urge preliminary exceptions asking for the dismissal of the complaint and raising the lack of jurisdiction of the Conseil and the Comité over the case.  The same day, the Conseil concluded that it did not have to reconsider jurisdictional issues on which it had already ruled and offered counsel for the appellant a brief adjournment, stating that he would be heard only on the suspension during the inquiry issue.  On October 29, 1990, the appellant filed a motion in evocation with the Superior Court in respect of the Comité's decision and also requested a stay order, which was granted on November 1, 1990 by Madam Justice Hélène LeBel:  J.E. 91‑31.  The motion in evocation was dismissed on June 18, 1991 by Mr. Justice Luc Parent:  [1991] R.J.Q. 2206.  The appellant appealed that judgment and, on September 10, 1991, Beauregard J.A. of the Court of Appeal ordered the respondents to suspend all proceedings relating to the October 5, 1990 complaint filed by the Chief Judge:  [1992] R.D.J. 168.

 

11               In the meantime, in a letter to Chief Judge Gobeil on November 2, 1990, the appellant stated that she was available to sit again in accordance with her appointment order.  Chief Judge Gobeil therefore took the necessary steps for Judge Ruffo to be reassigned to a regular roll as quickly as possible.  It was agreed that she could begin sitting as of November 19, 1990.  Following this decision, the CSSLL's director of youth protection, Robert Dupont, discontinued the motion for general recusation he had filed on June 28, 1988, but nonetheless challenged the appellant's assignment by filing a motion for a suspension order on November 14, 1990.  This motion was dismissed on November 21, 1990 by Madam Justice Danielle Grenier, and the appellant was therefore able to begin sitting again within the next few days.

 

12               In 1991, therefore, pursuant to separate proceedings conducted at the same time, two cases were before the Quebec Court of Appeal concerning the same matter:  an appeal from Philippon J.'s decision on the preliminary objections made before the inquiry on Mr. Lapointe's complaint was held and an appeal from the judgment of Parent J., who ruled, inter alia, on the constitutional issues now before this Court.  On November 27, 1991 it was ordered that the two appeals be heard together.  On June 16, 1992 they were dismissed:  (1992), 10 Admin. L.R. (2d) 291, 98 D.L.R. (4th) 202; and [1992] R.J.Q. 1796, 10 Admin. L.R. (2d) 296, 98 D.L.R. (4th) 176, 48 Q.A.C. 209.  On September 8, 1992 in this Court, my colleague McLachlin J. ordered a stay of all proceedings related to the October 5, 1990 complaint filed by Chief Judge Gobeil.  On February 4, 1993 leave to appeal from the two Court of Appeal judgments was granted by this Court:  [1993] 1 S.C.R. ix.  However, the appellant has discontinued her appeal in the case initially heard by Philippon J. of the Superior Court:  [1995] 1 S.C.R. x.  Accordingly, only one clearly defined aspect of the matter is now before this Court:  as mentioned earlier, these are the issues raised by the filing of the complaint against Judge Ruffo by Chief Judge Albert Gobeil.

 

II ‑ Judgments Below

 

Superior Court, [1991] R.J.Q. 2206

 

13               Before Parent J., the appellant argued that the Conseil and Comité members did not have the necessary impartiality to make a fair and equitable decision concerning her.  She based her allegations of bias on a set of circumstances that she divided into four categories:  (1) institutional structures; (2) the participation of the complainant, the Honourable Albert Gobeil, and Senior Associate Chief Judge Mercier in the first complaint laid against the appellant in 1988 by Miville Lapointe;  (3) the session held by the Conseil on October 17, 1990; and (4) the Conseil's precipitous conduct and its intention to suspend the appellant pursuant to s. 276 CJA.  She further argued that ss. 263 and 265 CJA, if they are to be interpreted as authorizing the Chief Judge of the Court of Québec to lodge a complaint with the Conseil, violate the rights guaranteed by ss. 7  and 11 (d) of the Canadian Charter of Rights and Freedoms  (the "Canadian Charter ") and s. 23 of the Charter of Human Rights and Freedoms, R.S.Q., c. C‑12 (the "Quebec Charter").  Parent J. dealt with each of these arguments in turn.

 

14               He began by interpreting ss. 96, 263 and 265 CJA together.  He found that there was no doubt that the Chief Judge of the Court of Québec has the power to lodge a complaint with the Conseil against a judge of that court.  He stated the following at p. 2213:

 

                   [translation]  Since s. 96(3) C.J.A. expressly gives the Chief Judge the duty "to ensure that the judicial code of ethics is observed", it would seem contrary to the scheme of that statute for the Chief Judge to be the only person incapable of initiating the disciplinary process that is designed precisely to ensure such observance.

 

15               Likewise, Parent J. saw no justification for the appellant's argument that a reasonable apprehension of bias resulted from the relationship of institutional dependence between the complainant and the respondents.  He stated that the appellant could not in this respect rely on the fact that the complainant is chairman of the Conseil ex officio, since s. 265 CJA provides that a member of the Conseil who lodges a complaint cannot participate in its examination.  As for the argument that the complainant would testify at the inquiry in the capacity of prosecutor, Parent J. was of the view that although the statute refers to the complainant as a "party", the Comité's inquiry is nevertheless very different from the lis inter partes that exists in the regular courts.  Because of the pre‑eminent role given to the Comité in conducting the inquiry, there could be no apprehension of bias in the assessment of the testimony of the Chief Judge and chairman of the Conseil.

 

16               Parent J. continued his examination of institutional dependence by looking at the provisions of the CJA pursuant to which, in the appellant's submission, the Chief Judge had an influence on a majority of Conseil and Comité members that might compromise their impartiality.  He found that the powers conferred on the Chief Judge are administrative in nature and ultimately give him very limited authority.  He therefore did not accept this argument.  He likewise rejected the argument that it would be difficult for Conseil members to disregard the fraternal relationship they had established with the Chief Judge at frequent meetings.

 

17               The second set of circumstances relied on by the appellant relates to the participation of the complainant and Senior Associate Chief Judge Mercier in the first complaint made against her by Miville Lapointe in 1988.  On this point, Parent J. began by stating that despite the analogy that might be drawn between the 1988 and 1990 complaints, Chief Judge Gobeil's complaint related to new facts.  He also noted that every time Chief Judge Gobeil was present, particularly at the Conseil sessions in the summer of 1988 and the one on September 19, 1990, at which the recommendations contained in the Comité's report were implemented, he did not take part in the deliberations concerning the appellant.  As for Senior Associate Chief Judge Mercier, who chaired the committee formed in 1988,  Parent J. stated that he was required to chair the Conseil meetings on October 17 and 25, 1990 to make up a quorum, in light of the fact that Chief Judge Gobeil, as the complainant, was prohibited from participating in the examination of the complaint.  He noted, finally, that none of the members of the committee formed in 1988, including Senior Associate Chief Judge Mercier, was part of the new committee set up to inquire into Chief Judge Gobeil's complaint.  In Parent J.'s opinion, it could not in the final analysis be concluded that the intellectual independence of the Conseil members was adversely affected by these events.

 

18               As regards the circumstances relating to the Conseil's session on October 17, 1990, Parent J. found that the appellant had not established any illegality or impropriety by the Conseil that would give rise to a reasonable apprehension of bias on its part.  He stated the following at p. 2220:

 

                   [translation]  It is easy to understand why the Conseil did not appoint someone to conduct a preliminary examination of Chief Judge Gobeil's complaint.

 

                   The complaint was set out in a highly detailed 34‑page document supported by considerable documentation.

 

                   It is difficult to see what additional information the Conseil could have thought it necessary to obtain from an examiner before deciding to conduct an inquiry.

 

Parent J. was also of the view that the Conseil had seriously examined the complaint since, in addition to devoting an hour to it at the October 17 session, its members had already had seven days to study it, as a copy of all relevant documents had been received a week earlier.

 

19               Finally, Parent J. rejected the appellant's fourth set of arguments concerning circumstances that could give rise to a reasonable apprehension of bias.  On the allegations of precipitous conduct, he concluded as follows, at p. 2221:

 

                   [translation]  By inviting [the appellant] to present her views on the application of s. 276 within the 30‑day period provided for by s. 271, the Conseil was ensuring that it could make an informed decision about her suspension before beginning the inquiry within the time prescribed.

 

In Parent J.'s view, this method of proceeding was in no way unreasonable and could not be a basis for concluding that, by the October 25, 1990 meeting, the Conseil had prejudged the question of the appellant's suspension during the inquiry.

 

20               In the final part of his analysis, Parent J. dealt with the constitutional issues raised by the case.  With respect to the alleged violation of s. 7  of the Canadian Charter , he agreed with the appellant's argument that the right to liberty includes the right to practise a profession and [translation] "that depriving a judge of the right to carry out his or her duties involves much more than the loss of the salary attached thereto" (p. 2223).  He was accordingly of the view that the risk of removal at the conclusion of the disciplinary proceedings under the CJA involved a limit on the freedom to carry out the judicial function.  However, he found that the infringement resulting from the fact that ss. 263 and 265 CJA authorize the Chief Judge to commence the disciplinary process does not contravene the principles of fundamental justice, including the maxim nemo judex in sua causa.  He referred in this respect to his earlier comments and pointed out that carefully designed mechanisms under the CJA prevented the Chief Judge from acting as judge of his own case.  He noted, finally, that the ultimate decision to remove a judge accused of breaching the Code of Ethics is not made by either the Conseil or the Comité.

 

21               Parent J. dealt briefly with s. 11 (d) of the Canadian Charter , which applies only to criminal and penal matters and also to disciplinary proceedings that may lead to the imposition of true penal sanctions, which is not the case here.  He also briefly addressed s. 23 of the Quebec Charter, finding that the circumstances did not require that the appellant be heard at the stage of admissibility of the complaint, despite the serious consequences of the decision to conduct an inquiry concerning her.

 

22               The motion in evocation was dismissed.

 

Court of Appeal (1992), 98 D.L.R. (4th) 176

 

Rothman J.A., dissenting

 

23               In the Court of Appeal the appellant essentially relied on the same four grounds on the basis of which, in her submission, the Conseil and Comité members did not have the impartiality required to perform their duties.  Before examining those grounds Rothman J.A., at pp. 181‑82, discussed the test for bias developed by de Grandpré J. in Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369.  He then disposed summarily of three of the four grounds raised by the appellant, namely the participation of Chief Judge Gobeil and Senior Associate Chief Judge Mercier in the proceedings instituted in respect of the first complaint, the Conseil's failure to examine seriously the complaint and the Conseil's precipitous conduct in dealing with the case.  With regard to the first of these grounds, he supported the trial judge's conclusions, noting that the two complaints concerned separate incidents.  He rejected the second ground on the basis that the CJA in no way requires the Conseil to appoint someone to examine the complaint on a preliminary basis and that in the case at bar, Chief Judge Gobeil's allegations were carefully considered before an inquiry by the Comité was ordered.  As for the allegations of precipitous conduct, Rothman J.A. found that the proceedings against the appellant may have been conducted with diligence, but it was difficult to see in this any evidence of malice or bias.

 

24               Rothman J.A. spent more time, however, dealing with the issue of the status and role of the complainant, who, as we know, was both the Chief Judge of the Court of Québec and the chairman of the Conseil.  On this point, Rothman J.A. agreed with Parent J. of the Superior Court, noting that the powers conferred on the Chief Judge by the CJA are largely administrative in nature and as such are not liable to compromise the impartiality of Conseil members in dealing with a complaint lodged by the Chief Judge.  Likewise, in light of ss. 96, 263 and 265 CJA, he also rejected any interpretation that would tend to prevent the Chief Judge from laying a complaint with the Conseil.  He concluded as follows at p. 185:

 

                   Not without some initial hesitation, I conclude that the status of Albert Gobeil as Chief Judge and as Chairman of the Conseil did not, in itself, disqualify him from bringing a complaint.  Nor did his status, in itself, create a problem of bias arising out of institutional dependence in the Conseil or the Comité.  The members of the Conseil and Comité were sufficiently independent, objective and professional, so that no fear of their impartiality in deciding a complaint by the Chief Judge ought to have arisen on that account.  Under normal circumstances, I do not believe a reasonable and well‑informed person would have had any apprehension that the Conseil or the Comité might be biased in deciding a complaint against a judge merely because it was signed by the Chief Judge.  [Emphasis in original.]

 

25               Rothman J.A. continued in the following terms.  I have reproduced the passage in full so that it can be properly understood (at pp. 185‑86):

 

                   But if the Chief Judge was legally entitled to lay a disciplinary complaint against a judge of his court, and if his status as complainant would not, in itself, have created an apprehension of bias in the Conseil or the Comité d'enquête, his status as Chief Judge and Chairman of the Conseil, and the moral authority of his position, demanded that the complaint he was bringing before the Conseil be objectively and dispassionately framed and that his role in bringing and supporting the complaint be, and be seen to be, scrupulously fair.

 

                   In my respectful opinion, this required, at the outset, that the complaint be expressed in a factual, moderate and objective fashion.  There was no place, in my view, for personal opinions as to the seriousness or consequences of the judge's misconduct, and any appearance of collegial pressure or influence had to be avoided.  The complaint could not be framed so as to give the appearance that, in the opinion of the Chief Judge, the outcome of the complaint was a foregone conclusion or that the dismissal of the complaint would offend strongly held views of the Chief Judge or diminish the honour and dignity or the collegiality of the court.

 

                   Unfortunately, with great respect, I do not believe the language of the complaint met the required standard of objectivity.  I am far from satisfied that a reasonable person, fully informed, would not conclude that the status and moral authority of the Chief Judge in combination with the conclusive and strongly opinionated language of the complaint might well create an apprehension of bias.  [Emphasis in original.]

 

26               Rothman J.A. then examined the complaint in detail and quoted the most significant passages.  On this basis, he concluded at p. 189 that the complaint did not simply put the facts before the Conseil and invite it to draw its own conclusions, but instead exhorted it to adhere to a conclusion already reached by Chief Judge Gobeil that the appellant had placed herself in a situation where she could not usefully continue to fulfil her functions.  In Rothman J.A.'s opinion, a reasonable and well‑informed observer would be left with an apprehension that the proceedings before the Conseil might not be impartial.

 

27               For these reasons, Rothman J.A. would have allowed the appeal.

 

                   Chevalier J.A. for the majority

 

28               In Chevalier J.A.'s opinion, there was nothing further to add to Rothman J.A.'s disposition of the first three grounds raised by the appellant.  He also agreed with Rothman J.A.'s conclusions on the lack of a relationship of institutional dependence between the Chief Judge and the Conseil members that would give rise to an apprehension of any bias on their part.  However, Chevalier J.A. disagreed with his colleague on the issue of the tone and language of the complaint, which he felt were not such as to influence the conduct of the judges examining it.  He also expressed some reservations about the advisability of making this issue the determining factor in the outcome of the case, given that the appellant had deliberately limited the debate to the issue of institutional bias.  He stated the following, at p. 193:

 

                   [translation]  Given the limited and quite specific framework in which the appellant has herself chosen to situate the dispute, I ask myself whether, by adding an issue that was not discussed by her in her factum, we might be creating, with regard to the parties, a situation that the appellant did not consider appropriate to raise, and that counsel were correspondingly limited in their ability to address in the course of the hearing.

 

Chevalier J.A. recognized, however, that when the appeal was heard, the court had itself expressed concerns about this matter and had invited counsel to state their views on it.

 

29               In his opinion, if the members of the Conseil responsible for examining a complaint against one of their colleagues were not likely to be influenced because the complaint was lodged by the Chief Judge, neither would they be influenced [translation] "by the sole fact that the complaint is worded vigorously and contains an instigation to convict the judge in question" (p. 193).

 

30               Chevalier J.A. also adopted the test for bias set out by this Court in Committee for Justice and Liberty, supra.  He concluded that in the case at bar, two types of information were available to a reasonable and well‑informed person in assessing whether or not there was an appearance of bias:  information relating to the category of persons who make up the Comité and information concerning the individuals who are members thereof.

 

31               In this regard, Chevalier J.A. looked at the key provisions of the CJA and noted the composition of the Conseil, the lack of participation by the Chief Judge in the appointment of its members and the fact that the Chief Judge, as a member of the Conseil, is prohibited from being involved in examining a complaint initially laid by him.  He also noted that the Comité is made up of persons chosen from among the members of the Conseil by a resolution of the Conseil passed during a meeting at which a quorum must be present and that neither the chairman nor the vice‑chairman has a deciding vote.  He stated, finally, that before judges begin performing their duties, they must take an oath or make a solemn affirmation and that, under the Code of Ethics with which they must comply, they must, with regard to the public, lawyers and the parties to a case, be impartial and objective and defend the independence of the judiciary.

 

32               Chevalier J.A. was also of the view that a reasonable and well‑informed person who considers the role of a judge and the manner in which judges must do their work could not apprehend any bias on the part of Conseil members.  He explained this as follows at p. 199:

 

                   [translation]  [A] well‑informed citizen cannot be unaware that hearing and determining disputes is a judge's bread and butter.  He is therefore, by necessity, required to work in an essentially adversarial context in which the parties naturally display hostility toward each other, accusing each other, attacking and counter‑attacking, and in which the exaggeration with which they often present their respective positions is commonplace in his court.

 

                   This typical judge is thus, to the knowledge of the informed citizen, a professional accustomed to presiding day after day over acrimonious debates in the midst of which he must remain serene, keep calm and in all circumstances separate what is receivable from what is not.

 

33               In concluding his reasons, Chevalier J.A. discussed certain specific circumstances in the case at bar that would support a reasonable and well‑informed person's conclusion that there was no bias.  Those facts included Chief Judge Gobeil's decision not to call witnesses at the inquiry or cross‑examine the witnesses who were heard in order to avoid giving the proceedings an adversarial character that would obviously not be compatible with the office of chief judge.

 

34               Judge Ruffo's appeal was dismissed.

 

III ‑ Issues

 

35               The following constitutional questions, as stated by my colleague La Forest J. on February 11, 1994, are now before this Court:

 

1.Do ss. 263 and 265 of the Courts of Justice Act, R.S.Q., c. T‑16, if they are to be interpreted as allowing the Chief Judge of the Court of Québec and Chairman of the Conseil de la magistrature to bring a complaint against a judge of the Court of Québec before the Conseil de la magistrature, violate the principles of judicial impartiality and independence guaranteed inter alia by the preambles to the Constitution Act, 1867  and the Canadian Charter of Rights and Freedoms , as well as by s. 7  of the Canadian Charter of Rights and Freedoms ?

 

2.If the answer to question 1 is affirmative, do ss. 263 and 265 of the Courts of Justice Act constitute reasonable limits prescribed by law that can be demonstrably justified in a free and democratic society under s. 1  of the Canadian Charter of Rights and Freedoms ?

 

3.Does s. 8 of the Judicial Code of Ethics, O.C. 643‑82, (1982) 114 G.O. II, 1253, which provides that judges of the Court of Québec should act in a reserved manner, violate s. 2 (b) of the Canadian Charter of Rights and Freedoms ?

 

4.If the answer to question 3 is affirmative, does s. 8 of the Code constitute a reasonable limit prescribed by law that can be demonstrably justified in a free and democratic society under s. 1  of the Canadian Charter of Rights and Freedoms ?

 

36               In addition to the constitutional questions stated, the appellant is asking the Court to assess the disciplinary procedure to which she is subject in light of s. 23 of the Quebec Charter.  In the alternative, she argues that the specific circumstances of this case show that the Conseil and the Comité do not have the impartiality required to perform their duties.  She argues, finally, that in the instant case, the form and content of the complaint lodged by Chief Judge Gobeil violate her freedom of expression.

 

IV ‑ Statutory Provisions

 

37               The relevant statutory provisions are as follows:

 

A.The preamble to the Constitution Act, 1867 :

 

                   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: . . .

 

B.The preamble to and ss. 1  and 7  of the Canadian Charter of Rights and Freedoms :

 

                   Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law:

 

                                                                   . . .

 

                   1.  The Canadian Charter of Rights and Freedoms  guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

 

                                                                   . . .

 

                   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.

 

C.Section 23 of the Charter of Human Rights and Freedoms, R.S.Q., c. C‑12:

 

23.  Every person has a right to a full and equal, public and fair hearing by an independent and impartial tribunal, for the determination of his rights and obligations or of the merits of any charge brought against him.

 

D.At the relevant times, the Courts of Justice Act, R.S.Q., c. T‑16, provided as follows:

 

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.

 

96.  The chief judge has the direction of the Court.

 

                   The functions of the chief judge shall be, in particular,

 

                   (1)  to ensure that the general policy of the Court in judicial matters is applied;

 

                   (2)  to coordinate, apportion and supervise the work of the judges, who must comply with his orders and directives in that regard;

 

                   (3)  to ensure that the judicial code of ethics is observed.

 

248.  The council shall be composed of 14 members, namely,

 

(a)  the chief judge of the Court of Québec who shall be the chairman of the council;

 

(b)  the two senior associate chief judges of the Court of Québec;

 

(c)  three associate chief judges representing the Civil Division, the Criminal and Penal Division, and the Youth Division of the Court of Québec, respectively, and appointed upon the recommendation of the chief judge of the Court of Québec;

 

(d)  one of the chief judges of the Municipal Courts of Laval, Montréal or Québec;

 

(e)  two judges chosen among the judges of the Court of Québec or the Municipal Courts of Laval, Montréal or Québec and appointed upon the recommendation of the Conférence des juges du Québec;

 

(f)  one judge chosen among the judges of the Municipal Courts other than those of Laval, Montréal or Québec and appointed upon the recommendation of the Conférence des juges municipaux du Québec;

 

(g)  two advocates appointed upon the recommendation of the Barreau du Québec;

 

(h)  two persons who are neither judges nor advocates.

 

256.  The functions of the council are:

 

                                                                   . . .

 

(b)  to adopt, in accordance with Chapter III of this Part, a judicial code of ethics;

 

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

 

                                                                   . . .

 

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. . . .

 

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.

 

265.  The council shall examine the complaint; it may, for that purpose, require from any person such information as it may deem necessary and examine the relevant record, even if the record is confidential under the Youth Protection Act (chapter P‑34.1).

 

                   If the complaint is lodged by a member of the council, he cannot participate in the examination of the complaint by the council.

 

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.

 

                                                                   . . .

 

271.  The committee communicates to the judge a copy of the complaint . . . .

 

                   Within thirty days after the communication of the complaint, the committee calls the judge concerned and the plaintiff; . . . .

 

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.

 

273.  The members of the committee enjoy, for the purposes of an inquiry, the powers and immunity of commissioners appointed under the Act respecting public inquiry commissions (chapter C‑37).

 

276.  The council may suspend a judge for the duration of an inquiry on him.

 

E.Sections 5, 7, 8 and 10 of the Judicial Code of Ethics, (1982) 114 G.O. II, 1253:

 

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

 

7.  The judge should refrain from any activity which is not compatible with his judicial office.

 

8.  In public, the judge should act in a reserved, serene and courteous manner.

 

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

 

V ‑ Analysis

 

A.A Violation of the Constitutional Guarantees of Judicial Impartiality and Independence

 

                   (1)  Impartiality:  Principles and Test

 

38               It should be mentioned at the outset that the right to be tried by an independent and impartial tribunal is an integral part of the principles of fundamental justice protected by s. 7  of the Canadian Charter  (see, inter alia, R. v. Beauregard, [1986] 2 S.C.R. 56, Pearlman v. Manitoba Law Society Judicial Committee, [1991] 2 S.C.R. 869, and R. v. Généreux, [1992] 1 S.C.R. 259).

 

39               The parties to the case at bar view this aspect of the matter in the same way:  it is clear from the arguments made by them that judicial independence is not in issue here, and their submissions are therefore limited to the issue of impartiality.  I note, however, that it has not always been easy to distinguish these two concepts and that even today it is difficult to determine the exact relationship between them.  It thus seems appropriate in this regard to consider some of this Court's decisions that have directly addressed the issues of judicial impartiality and independence over the past few years.  I do not intend to examine them in detail, but simply to identify their main points in order to be able to trace the evolution of the principles underlying them.

 

40               Valente v. The Queen, [1985] 2 S.C.R. 673, marked the beginning of efforts by this Court to clarify the content of the judicial independence requirement.  Le Dain J. set out three essential conditions of judicial independence:  security of tenure, financial security and the institutional independence of the tribunal with respect to matters of administration bearing on the exercise of its judicial function.

 

41               In that case, the concept of impartiality was consistently seen as a principle separate from judicial independence, despite the relationship between them.  This is illustrated by the following comments by Le Dain J., at p. 685:

 

Although there is obviously a close relationship between independence and impartiality, they are nevertheless separate and distinct values or requirements.  Impartiality refers to a state of mind or attitude of the tribunal in relation to the issues and the parties in a particular case.  The word "impartial" . . . connotes absence of bias, actual or perceived.  The word "independent" in s. 11 (d) reflects or embodies the traditional constitutional value of judicial independence.  As such, it connotes not merely a state of mind or attitude in the actual exercise of judicial functions, but a status or relationship to others, particularly to the executive branch of government, that rests on objective conditions or guarantees.

 

42               In MacKeigan v. Hickman, [1989] 2 S.C.R. 796, McLachlin J., while not departing from this premise, emphasized the close interaction between these concepts and, at p. 826, noted that judicial independence is an underlying condition that contributes to the guarantee of an impartial trial.

 

43               The connection between these related concepts was further explained by Lamer C.J. in R. v. Lippé, [1991] 2 S.C.R. 114, at p. 139.  Speaking for the Court on this point, he stated the following:

 

                   The overall objective of guaranteeing judicial independence is to ensure a reasonable perception of impartiality; judicial independence is but a "means" to this "end".  If judges could be perceived as "impartial" without judicial "independence", the requirement of "independence" would be unnecessary.  However, judicial independence is critical to the public's perception of impartiality.  Independence is the cornerstone, a necessary prerequisite, for judicial impartiality.  [Emphasis added.]

 

44               The contribution of Lippé is not limited to this observation, however, as it was also recognized that the concept of institutional impartiality must be included in the constitutional guarantee of an independent and impartial tribunal.  The Chief Justice stated the following, at pp. 140‑41:

 

                   Notwithstanding judicial independence, there may also exist a reasonable apprehension of bias on an institutional or structural level.  Although the concept of institutional impartiality has never before been recognized by this Court, the constitutional guarantee of an "independent and impartial tribunal" has to be broad enough to encompass this.  Just as the requirement of judicial independence has both an individual and institutional aspect (Valente, supra, at p. 687), so too must the requirement of judicial impartiality.  I cannot interpret the Canadian Charter  as guaranteeing one on an institutional level and the other only on a case‑by‑case basis.

 

                                                                   . . .

 

                   The objective status of the tribunal can be as relevant for the "impartiality" requirement as it is for "independence".  Therefore, whether or not any particular judge harboured pre‑conceived ideas or biases, if the system is structured in such a way as to create a reasonable apprehension of bias on an institutional level, the requirement of impartiality is not met.  As this Court stated in Valente, supra, the appearance of impartiality is important for public confidence in the system (at p. 689):

 

Both independence and impartiality are fundamental not only to the capacity to do justice in a particular case but also to individual and public confidence in the administration of justice.  Without that confidence the system cannot command the respect and acceptance that are essential to its effective operation.  It is, therefore, important that a tribunal should be perceived as independent, as well as impartial . . . .  [Emphasis in original.]

 

45               In the same case, it was established that the test for institutional impartiality should be that set out by de Grandpré J. in Committee for Justice and Liberty, supra, at p. 394:

 

. . . the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information.  In the words of the Court of Appeal, that test is "what would an informed person, viewing the matter realistically and practically ‑‑ and having thought the matter through ‑‑ conclude . . . ." [Emphasis added.]

 

46               This test is similar to that used to assess individual or case‑by‑case impartiality, with the difference that according to Lippé, supra, the assessment of institutional bias assumes that there will be a reasonable apprehension of bias in the mind of the informed person mentioned above in a substantial number of cases.  Since Committee for Justice and Liberty, this test has been applied consistently by this Court, inter alia, in R. v. Bain, [1992] 1 S.C.R. 91, Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), [1992] 1 S.C.R. 623, and Idziak v. Canada (Minister of Justice), [1992] 3 S.C.R. 631.  Accordingly, the appellant's allegations of institutional bias should now be examined.  As the protection provided by the Canadian Charter  (s. 7 ) and the Quebec Charter (s. 23) is essentially the same in this regard, the following analysis will be presented in general terms to address both these aspects of the issue at the same time.

 

(2)  Institutional Bias

 

                   (a)  Preliminary Remarks

 

47               In this Court, the appellant is arguing that a relationship of dependence exists between Chief Judge Gobeil and the members of the Conseil and the Comité.  In her view, such a relationship results from the complainant's status and moral authority, the powers conferred on him by the CJA and the friendly relationship that is likely to have developed among these individuals at frequent meetings.

 

48               As regards the first issue in this case, examining the ground of institutional bias first requires an interpretation of ss. 263 and 265 CJA.  The appellant maintains that these sections must be read as not authorizing the Chief Judge, given his position and powers, to lay a complaint with the Conseil against a judge of his court.

 

49               I note at the outset that such a suggestion challenges the operation of any disciplinary jurisdiction based on the principle of peer review of professional conduct.  The appropriateness of this method was, however, unanimously recognized by this Court, per Iacobucci J., in Pearlman v. Manitoba Law Society Judicial Committee, supra.

 

50               It is clear from a mere reading of the statutory provisions in question that the appellant's suggested interpretation cannot stand.  The CJA provides that the Chief Judge of the Court of Québec is ex officio a member of the Conseil and the chairman thereof (s. 248(a)).  It also provides that any person may lodge a complaint with the Conseil (s. 263), including a member of the Conseil, although a member cannot participate in the examination of the complaint in such a case (s. 265, para. 2).  Finally, as noted by Parent J. of the Superior Court, at p. 2213:

 

                   [translation]  Since s. 96(3) C.J.A. expressly gives the Chief Judge the duty "to ensure that the judicial code of ethics is observed", it would seem contrary to the scheme of that statute for the Chief Judge to be the only person incapable of initiating the disciplinary process that is designed precisely to ensure such observance.

 

51               With this aspect of the issue clarified, an examination of ss. 263 and 265 CJA in light of the constitutional guarantees of independence and impartiality requires that the Chief Judge's role with respect to judicial ethics and the actual content of his functions and powers in the Court of Québec be properly defined.  It also requires an examination of the specific nature of the bodies responsible for deciding the outcome of the complaint.  These are the only two aspects I shall analyse in this section.  I am of the view that the existence of a friendly relationship between the Chief Judge and the members of the Conseil and the Comité would not give rise to a reasonable apprehension of bias in the mind of a reasonable and well‑informed observer.  With respect, such an assertion has no legal basis and challenges the dignity and professionalism of the judiciary and its Conseil.  In this respect, I agree with the reasons of the Superior Court and the Court of Appeal.

 

(b)  The Chief Judge:  Functions and Powers

 

(i)  With Respect to Judicial Ethics

 

52               Current provincial and territorial legislation in Canada is intended to reflect a marked awareness of judicial ethics and in many cases gives the chief judge a key role in ensuring compliance with them (see, inter alia, the Judges of the Provincial Court Act, R.S.N.S. 1989, c. 238, s. 15; the Provincial Court Judges Act, S.A. 1981, c. P‑20.1, s. 9; the Provincial Court Act, R.S.B.C. 1979, c. 341, s. 6.1; the Provincial Court Act, R.S.M. 1987, c. C275, s. 8.1; the Provincial Court Act, 1991, S.N. 1991, c. 15, s. 8; the Provincial Court Act, R.S.N.B. 1973, c. P‑21, s. 6.6(3); the Territorial Court Act, R.S.N.W.T. 1988, c. T‑2, s. 5(4); and the Territorial Court Act, R.S.Y. 1986, c. 169, s. 20; see also Peter McCormick, "Judicial Councils for Provincial Judges in Canada" (1986), 6 Windsor Y.B. Access Just. 160, at pp. 174‑75, where the author presents a very useful comparative table on this question).  I note, however, that such explicit legislative developments are relatively recent.

 

53               This is also true in Quebec, where express references to the supervisory power of the chief district judge of the Magistrate's Court, the predecessor of the Provincial Court and of what in 1988 became the Court of Québec in its present form (S.Q. 1988, c. 21, s. 30), cannot be found prior to 1945.  In this regard, s. 6 of the Act to amend the Courts of Justice Act, S.Q. 1945, c. 18, introduced the following provision:

 

                   The district magistrates shall be subject to the supervision, orders and control of such chief magistrates as regards the distribution of cases, the holding of sittings and generally all administrative matters concerning them.

 

54               Although this section was amended in subsequent years, its substance was not affected (S.Q. 1965, c. 17, s. 2, and S.Q. 1974, c. 11, s. 32).  It was only after the 1977 revision that the Act to amend the Courts of Justice Act and the Code of Civil Procedure and to establish the Conseil de la magistrature, S.Q. 1978, c. 19, came into force.  Section 6 of that statute replaced s. 75 of the old Courts of Justice Act, R.S.Q. 1964, c. 20, with a new s. 75 that included an explicit reference to the chief judge's role with respect to ethics:

 

                   75.  The chief judge has charge of the general policy of the Court in judicial matters.

 

                   His function is also to ensure that the judges of the sessions make due exercise of their functions and that they comply with the code of ethics.  [Section 27 of the same statute made s. 75 applicable to Provincial Court judges.]

 

                                                                   . . .

 

                   75c.  In the division where he resides, the chief judge . . . coordinates, apportions and supervises the work of the judges, and they must comply with his orders and directives in that regard.  [Emphasis added.]

 

55               This provision was itself amended by s. 30 of the Act to amend the Courts of Justice Act and other legislation to establish the Court of Québec, S.Q. 1988, c. 21, which introduced s. 96 CJA as it was worded on the dates relevant here, and in particular conferred on the Chief Judge the duty "to ensure that the judicial code of ethics is observed".

 

56               The relatively recent date of these statutory provisions may be explained in part, at least in Quebec, by the fact that the position of chief district judge was not established until 1922.  On this point, see An Act to amend the Revised Statutes, 1909, respecting district magistrates, S.Q. 1922, c. 64, s. 1, which read in part as follows:

 

                   3291a.  The Lieutenant‑Governor in Council may appoint, from amongst the district magistrates of this Province, a Chief District Magistrate, with residence at the place he shall determine.

 

However, according to H. Patrick Glenn, "La responsabilité des juges" (1983), 28 McGill L.J. 228, at p. 234, the principle of judges' disciplinary responsibility, although still in its infancy, can be traced back to before the Conquest of New France in 1759.  The position of chief justice in courts now known as "superior" courts has existed in Canada since 1764 (see Compendium of Information on the Status and Role of the Chief Justice in Canada, prepared in 1981 for the Canadian Institute for the Administration of Justice; and Léo Pelland, "Aperçu historique de notre organisation judiciaire depuis 1760" (1933‑1934), 12 R. du D. 14).  It must therefore be thought that chief judges or justices, because of their role as co‑ordinators, were able to have a certain influence on compliance with rules of conduct in the specific context of a disciplinary authority that was initially in the hands of the executive branch and then, starting in the 19th century after the principle of security of tenure for judges was established, belonged exclusively to the legislative branch.

 

57               In my opinion, this last observation also applies to the chief district judge.  Until 1940, disciplinary control of judges of the chief district judge's court was subject to the dismissal procedure, which required a vote by both legislative assemblies in favour of dismissal (R.S.Q. 1909, ss. 3263 and 3292; R.S.Q. 1925, c. 145, ss. 221 and 269); starting in 1941 it required a report of the Court of King's Bench (Appeal Side), the predecessor of the present Court of Appeal (R.S.Q. 1941, c. 15, ss. 221 and 269; R.S.Q. 1964, c. 20, ss. 76 and 119; R.S.Q. 1977, c. T‑16, ss. 85, 127 and 133; S.Q. 1988, c. 21, s. 30; and R.S.Q., c. T‑16, s. 95).  It must not be forgotten that a large part of the chief judge's role in maintaining high‑quality justice was defined gradually over the years, in the same way as judicial precedents.  Many aspects of this role derived from judicial tradition without being transferred to legislation.  Therefore, the fact that there was no explicit legislation on ethics until quite recently does not mean we can doubt the continuity that marked the development of the chief judge's responsibilities in this regard.  It accordingly cannot be argued that the supervisory powers conferred on the chief judge by the present s. 96 CJA were assigned spontaneously by the legislature; in my view, they must rather be seen as the expression of a reality that is consistent with general practice and gradual developments over time.

 

58               This opinion is shared by the American author C. G. Geyh, who asserts that the chief judge's supervisory powers over ethics are inherent in the exercise of his or her functions and need not be conferred by specific statutory provisions ("Means Of Judicial Discipline Other Than Those Prescribed By The Judicial Discipline Statute, 28 U.S.C. Section 372(c)", in Research Papers of the National Commission on Judicial Discipline and Removal (1993), vol. 1, 713, at p. 756).  I agree.

 

59               We must recognize that the chief judge, as primus inter pares in the court, the efficient operation of which he or she oversees in all other respects, is in a preferred position to ensure compliance with judicial ethics.  First, because of the chief judge's role as co‑ordinator, events that may raise ethical issues are more readily brought to his or her attention.  As well, because of the chief judge's status, he or she is often the best situated to deal with such delicate matters, thereby relieving the other judges of the court of the difficult task of laying a complaint against one of their colleagues where necessary.  In short, the power to lay a complaint is an intrinsic part of the chief judge's responsibility in this area and it would not be fitting for the chief judge to act through someone else, whether a judge or a person outside the judiciary, to fulfil his or her obligations in this regard.

 

(ii)  In the Court of Québec

 

60               The appellant refers here to a series of CJA provisions that she argues grant the Chief Judge powers that go beyond mere judicial management and thus affect the ability of Conseil and Comité members to make objective decisions.  On this point, I should begin by noting that any argument about the Chief Judge's authority must be analysed specifically having regard to the composition of the Conseil, which as we know consists of, in addition to the Court of Québec judges, two to four Municipal Court judges, two lawyers and two representatives of the public, over whom the Chief Judge cannot have any influence under the CJA.  As for the Comité, since it is made up of five Conseil members there is an equal chance to ensure that its membership is not monolithic.  The same observations concerning the Chief Judge's presumed authority may therefore be applied to it.

 

61               In his reasons, Parent J. of the Superior Court examined the powers conferred on the Chief Judge by the CJA in detail and found that there was no institutional bias of any kind.  I shall review the main elements of those reasons.

 

62               Like Parent J., I would immediately reject as an issue the fact that pursuant to s. 90 CJA, Chief Judge Gobeil would have been consulted by the government on the appointment of senior associate chief judges and associate chief judges of the Court of Québec, the former being members of the Conseil ex officio and three of the latter being appointed thereto upon his recommendation.  It is clear that the Chief Judge has only a power of recommendation in this regard and that the government is not required to follow his recommendation.  As for the financial benefits of holding these positions, including additional remuneration (s. 115 CJA), an expense allowance (s. 121 CJA), the same salary after leaving the position if the judge has occupied it for at least seven years (s. 116 CJA) and a year's leave of absence with salary after the same period (s. 92 CJA), they are all privileges granted by statute and the Chief Judge has no say in them.

 

63               The CJA further provides that all Court of Québec judges may receive various benefits, such as engaging in remunerated teaching activities (s. 134 CJA) or exercising the functions of arbitrator (s. 130 CJA) or coroner (s. 131 CJA).  It is also possible for a judge of the court to carry out a mandate entrusted to him or her by the government (s. 132 CJA) or to exercise judicial functions after retirement (s. 93 CJA).  Among these pursuits, only remunerated teaching activities must be authorized by the Chief Judge.  In all other cases, it is the government rather than the Chief Judge that makes the final decision, after receiving the Chief Judge's request or opinion but without being bound by it.  Like Parent J., I do not believe that a Conseil or Comité member making a decision concerning a complaint lodged by his or her Chief Judge could be influenced by the prospect of obtaining authorization from the Chief Judge to engage in remunerated teaching activities.

 

64               All that remains are the management functions conferred on the Chief Judge by s. 96 CJA, which I have reproduced below for ease of reference:

 

96.  The chief judge has the direction of the Court.

 

                   The functions of the chief judge shall be, in particular,

 

                   (1)  to ensure that the general policy of the Court in judicial matters is applied;

 

                   (2)  to coordinate, apportion and supervise the work of the judges, who must comply with his orders and directives in that regard;

 

                                                                   . . .

 

Section 100 CJA provides that the Chief Judge may designate an associate chief judge to exercise the functions of a senior associate chief judge where the latter is absent or unable to act, until the senior associate chief judge resumes his or her functions or is replaced.  As Parent J. notes, at p. 2217, [translation] "this power exists only when needed to deal with an emergency, and the designated judge exercises his or her functions only for a limited time".  In addition, if the senior associate chief judge must be replaced, his or her successor is appointed by the government, pursuant to s. 90 CJA.

 

65               The Chief Judge, after consultation with the senior associate chief judge concerned, may also assign a judge to a specific division (Civil, Criminal and Penal, or Youth:  s. 107 CJA), modify that assignment (s. 111 CJA) and temporarily assign a judge to another regional section (s. 109 CJA).  Although the Chief Judge is not consulted in any way about the initial permanent assignment of a judge to a regional section, which is determined by the government (s. 86 CJA), the Chief Judge may nonetheless recommend a modification to a judge's notice of appointment concerning the judge's place of residence or the regional section assigned to the judge (s. 108 CJA).  Under s. 110 CJA, however, the recommendations and decisions provided for in ss. 108 and 109 CJA cannot be acted upon unless the judge consents to such modification to his or her notice of appointment or unless the Chief Judge considers that the circumstances so require, in which case the judge concerned must have been given the opportunity to present his or her views.  In addition, under s. 112 CJA, a decision of the Chief Judge pursuant to ss. 108 or 111 CJA may be appealed to the Conseil, which may confirm or quash it.

 

66               In short, to quote Parent J., at p. 2218:

 

                   [translation]  The statutory provisions cited above, whose purpose is to authorize the Chief Judge to manage the Court of Québec's activities, therefore grant the Chief Judge only the administrative powers needed for such management.  In some cases, it is the Chief Judge who makes the decision, but then it has a temporary effect only;  otherwise his power will be limited to making recommendations that the government may or may not approve or follow, except where there is an appeal to the Conseil, in which case it decides the matter.  [Emphasis added.]

 

This being the situation, there is in my opinion no reason to apprehend that the impartiality of the Court of Québec judges sitting on the Conseil or Comité would be compromised in making a decision concerning Judge Ruffo.  Accordingly, the specific nature of the bodies responsible for dealing with the complaint and their relationship with the Chief Judge should now be examined.

 

(c)  The Conseil and the Comité

 

67               Under ss. 256(c) and 263 CJA, the Conseil is responsible for receiving and examining complaints lodged by any person against a judge alleging that the judge has failed to comply with the Code of Ethics.  Sections 265 and 266 CJA authorize the Conseil to gather such information as it may deem necessary; it forwards a copy of the complaint to the judge concerned and may require an explanation from that judge.  If after examining the complaint the Conseil decides that the complaint is justified and that an inquiry is warranted because of the nature and importance of the complaint, it establishes a Comité for that purpose consisting of five persons chosen from among its members and designates a chairman among them (ss. 268 and 269 CJA).  When the inquiry is completed, the Comité prepares a report, which it submits to the Conseil along with its recommendations (s. 277 CJA).  Under s. 279 CJA, if the report establishes that the complaint is justified, the Conseil must implement the Comité's recommendations, which may be of two types:  a reprimand of the judge concerned or a recommendation that the Minister of Justice and Attorney General institute removal proceedings by filing a motion with the Court of Appeal in accordance with s. 95 CJA.  It is important to note at this point that under s. 95 it is the government that makes the final decision to remove a judge, after the Court of Appeal has submitted a report on its inquiry; the Comité, Conseil and Chief Judge of the Court of Québec have no authority in this regard.

 

68               The Comité's role in light of these statutory provisions was accurately described by Parent J., at p. 2214:

 

[translation]  . . . the Comité is a body established for a purpose relating to the welfare of the public, namely to ensure compliance with the code of ethics that sets out the rules of conduct for and duties of judges toward the public, the parties to a case and counsel.  The Comité's role is to inquire into a complaint alleging that a judge has failed to comply with the code, determine whether the complaint is justified and, if so, recommend the appropriate sanction to the Conseil.

 

The Comité's mandate is thus to ensure compliance with judicial ethics in order to preserve the integrity of the judiciary.  Its role is remedial and relates to the judiciary rather than the judge affected by a sanction.  In this light, as far as the recommendations the Comité may make with respect to sanctions are concerned, the fact that there is only a power to reprimand and the lack of any definitive power of removal become entirely comprehensible and clearly reflect the objectives underlying the Comité's establishment:  not to punish a part that stands out by conduct that is deemed unacceptable but rather to preserve the integrity of the whole.

 

69               That being the case, other factors tend to eliminate the possibility of a reasonable apprehension of institutional bias arising in the case at bar:  it should not be forgotten that Comité members who are Court of Québec judges had to take the following oath pursuant to s. 89 CJA when they were appointed:

 

                   I swear (or solemnly affirm) that I will faithfully, impartially and honestly, and to the best of my knowledge and abilities, fulfil all the duties and exercise all the powers of a judge of the Court of Québec.  [Emphasis in original.]

 

Likewise, the Code of Ethics explicitly requires that judges be, and be seen to be, impartial and uphold the integrity and independence of the judiciary.  Pursuant to s. 262 CJA, these duties and rules of conduct apply toward the public, the lawyers and the parties to an action, which clearly includes the proceeding in which Judge Ruffo is involved.  I have reproduced the relevant provisions of the Code of Ethics below for ease of reference:

 

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.

 

70               The appellant argues, however, that the roles of Chief Judge and complainant are naturally incompatible, in that under ss. 271 and 272 CJA the complainant becomes a party to the inquiry and may call witnesses and cross‑examine the witnesses heard.  In the appellant's submission, the authorized use by the Chief Judge of methods that are usually employed by a prosecutor taints the proceedings with bias and therefore requires that they be quashed.  In this regard, she relies on a letter dated October 23, 1990 from counsel for Chief Judge Gobeil to the secretary of the Conseil, Judge Bernard Tellier:

 

[translation]  Under the Act . . . the complainant is a party to the inquiry.  Chief Judge Albert Gobeil will therefore appear and testify before the Comité and may be cross‑examined by any party.

 

However, it does not seem appropriate for the Chief Judge of the Court of Québec and chairman of the Conseil de la magistrature to be involved in conducting adversarial proceedings against a judge of that court.  The role of Chief Judge and the activities of the party responsible for prosecuting are clearly incompatible.  Accordingly, it does not seem appropriate for counsel for Chief Judge Albert Gobeil to call witnesses at the inquiry or cross‑examine the witnesses heard.  [Emphasis added.]

 

The appellant's argument thus rests on the premise that Chief Judge Gobeil is a prosecutor before the Comité.  This assertion presupposes that proceedings before the Comité are similar to an adversarial trial in which the burden of proof is on the prosecution.

 

71               With respect, the relevant provisions of the CJA do not support such an assertion.  I have reproduced them below for ease of reference:

 

268.  The council may, after examining a complaint, decide to make  an inquiry . . . .

 

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.

 

                                                                   . . .

 

271.  . . .

 

                   Within thirty days after the communication of the complaint, the committee calls the judge concerned and the plaintiff . . . .

 

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.

 

                                                                   . . .

 

273.  The members of the committee enjoy, for the purposes of an inquiry, the powers and immunity of commissioners appointed under the Act respecting public inquiry commissions (chapter C‑37).

 

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

 

                                                                   . . .

 

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

 

72               As I noted earlier, the Comité's mandate is to ensure compliance with judicial ethics; its role in this respect is clearly one of public order.  For this purpose, it must inquire into the facts to decide whether the Code of Ethics has been breached and recommend the measures that are best able to remedy the situation.  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.

 

73               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.

 

74               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.  In the present case, the Chief Judge's suggestion to that effect was therefore helpful and in keeping with an approach recognized by other provincial legislatures (see, inter alia, the Courts of Justice Act, R.S.O. 1990, c. C.43, s. 49(21); the Provincial Court Act, R.S.B.C. 1979, c. 341, s. 18(4); the Provincial Court Act, R.S.M. 1987, c. C275, ss. 32(9) and 37(13); and the Provincial Court Act, R.S.N.B. 1973, c. P‑21, s. 6.9(1)(b)).  Along the same lines, it should be mentioned that the American Bar Association has proposed that the states adopt a body of basic rules of judicial ethics incorporating participation by lawyers at inquiries ("Model Rules for Judicial Disciplinary Enforcement" (August 1994)).

 

75               As well, a survey of statutes across the country reveals the following:  in Ontario, the Courts of Justice Act, R.S.O. 1990, c. C.43, provides that a complaint may be made to the Council by any person, which would include the Chief Judge (s. 51.3); the Chief Judge is a member of the Council ex officio (s. 49(2)(b)) but is always excluded from the subcommittee reviewing the complaint (s. 51.4(1)).  It also provides that the Council determines who are the parties to the hearing (s. 51.6(6)).  In British Columbia, s. 15(5) of the Provincial Court Act, R.S.B.C. 1979, c. 341, provides that a chief judge who has conducted an investigation into a judge's conduct shall not sit as a member of the council on an inquiry respecting the same matter.  In Newfoundland, s. 16(3) of the Provincial Court Act, 1991, S.N. 1991, c. 15, contains a similar provision except that it applies where the chief judge has suspended or reprimanded the judge whose conduct is in question.  In these last two cases, however, I note that the chief judge is not prohibited from making submissions to the council as a party.  In New Brunswick, s. 6.10(4) of the Provincial Court Act, R.S.N.B. 1973, c. P‑21, provides that the counsel to the panel acts as the prosecutor at the formal hearing.

 

76               It is evident that few provincial statutes contain express provisions on the complainant's status at the inquiry.  In fact, only the CJA, which makes the complainant a party, is explicit on this point.  What can be concluded from this uniqueness?  First, in light of what is set out in the preceding paragraphs, it is clear that the concept of "party" at a Comité hearing does not change the essence of the institution in question.  It even seems that by defining the attributes of each person involved in the inquiry in ss. 271 and 272 CJA, the legislature was instead showing a concern to eliminate the uncertainty that often arises as to a person's precise role and standing before a committee of inquiry.  Moreover, a comparative analysis shows that disciplinary proceedings for provincially appointed judges are not uniform across the country and that the interaction that occurs among the council, committee and chief judge during such proceedings varies depending on the powers and functions conferred by statute on each of them.  In some cases, as I noted earlier, the chief judge plays a much more active role in receiving and examining complaints laid against a judge, whereas in Quebec (s. 263 CJA) and Saskatchewan (The Provincial Court Act, 1978, S.S. 1978, c. 42, s. 17), for example, these steps are the council's responsibility.  In other cases, it is the chief judge who makes the decision to suspend a judge whose conduct is in question or to take corrective action in respect of that judge (Judges of the Provincial Court Act, R.S.N.S. 1989, c. 238, s. 15(2); Provincial Court Act, 1991, S.N. 1991, c. 15, s. 8(1)(d); Provincial Court Act, R.S.B.C. 1979, c. 341, s. 15(4); Provincial Court Judges Act, S.A. 1981, c. P‑20.1, s. 9(c); Provincial Court Act, R.S.M. 1987, c. C275, s. 36(1); Territorial Court Act, R.S.N.W.T. 1988, c. T‑2, s. 5(4)), while in New Brunswick and Prince Edward Island these functions are performed by the Council (Provincial Court Act, R.S.N.B. 1973, c. P‑21, s. 6.8(1)) and the Lieutenant Governor in Council (Provincial Court Act, R.S.P.E.I. 1988, c. P‑25, s. 10(1)) respectively.

 

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.  Accordingly, the CJA's uniqueness in characterizing the complainant as a party must not be allowed to overshadow the special care shown by the Quebec legislature to avoid any structural overlapping in the statute that might give rise to a reasonable apprehension of bias.  These rules are an extension of the institutional role that has historically been, and must be, played by the Chief Judge.

 

78               Where the Chief Judge makes use of the formal disciplinary process by taking the initiative of laying a complaint, as authorized by the statute, there is no reason to think that the Conseil and its Comité do not, in the eyes of a reasonable and well‑informed observer, have the impartiality required to carry out their duties.  As I stated earlier, the Chief Judge's authority under the CJA is essentially administrative; as a result, any scenario involving possible negotiations about benefits to be conferred on or withdrawn from Conseil members dealing with the complaint, depending on what decision is made, is impossible to imagine.

 

79               Accordingly, the only issue that remains is the Chief Judge's possible influence on Court of Québec judges who are members of the Conseil by virtue of the moral authority that is naturally associated with his status and functions.  With respect, I cannot accept the appellant's arguments on this point.  It is normal, legitimate and desirable for the Chief Judge to have moral authority.  Such authority is associated with the Chief Judge as an individual and with the office he holds, and is necessary for its exercise.  It is not restrictive and is part of the context in which all judges perform their duties.  It does not in itself affect the capacity of a judge to decide to the best of his or her knowledge and belief and on the basis of the relevant factors.  In ethical matters judges take account of established rules, precedents, theory, their own experience and authoritative opinions ‑‑ including that of the Chief Judge ‑‑ not as restrictive standards but for their persuasive value, in order to make decisions they consider fair.  In this context, therefore, the Chief Judge's moral authority cannot be seen as giving rise to a reasonable apprehension of bias.

 

(3)  Bias With Respect to the Specific Circumstances of the Case

 

80               In his complaint against the appellant, Chief Judge Gobeil discusses three aspects of her behaviour:  her public comments on being reprimanded following the Comité's report on September 19, 1990; her unaltered public conduct and statements despite a written warning by the Chief Judge on March 21, 1989; and her intervention in a case that was then pending before a colleague.

 

81               The first and third aspects of the complaint clearly refer to one‑time events and therefore serve as a basis for making specific allegations; however, the second aspect strives, through a lengthy media review, to illustrate Judge Ruffo's general conduct and show that it resembled a "crusade".  Accordingly, it may be thought that it is not so much the incompatibility of Judge Ruffo's specific actions with the rules of judicial ethics that is the main reason for the complaint, but rather a general concern with the threat that such conduct represents to judicial institutions and the public's respect for them.

 

82               In my opinion, there is no doubt that the overall conduct of a member of the judiciary may be assessed under the Code of Ethics, in so far as the judge who is the subject of a complaint is able to know the specific facts alleged against him or her.  This assertion is all the more true in the case at bar, where s. 10 of the Code of Ethics, which provides that "[t]he judge should uphold the integrity and defend the independence of the judiciary, in the best interest of justice and society", and which must be complied with by the Chief Judge himself, is superimposed on his general duty to ensure the observance of judicial ethics pursuant to s. 96(3) CJA.  As well, some of the Comité's comments in the report it submitted on September 19, 1990 suggest that an inquiry could be held on a judge's general conduct:

 

[translation]  [In the case under consideration,] the committee's jurisdiction is limited by the mandate it has received from the Conseil de la magistrature to examine the allegations of the complainant [Lapointe] into which the Conseil decided to hold an inquiry.  Judge Ruffo's conduct and public statements as a whole were therefore not examined by the committee.  [Emphasis added.]

 

83               In the case at bar, the appellant argued that the conduct of the proceedings against her was marked by specific incidents that could lead a reasonable and well‑informed observer to apprehend that the Conseil was unable to make an impartial decision.  She relied in this regard on the source of the documents filed in support of the complaint, the Conseil's precipitousness in dealing with the complaint and the tone used by the Chief Judge in formulating his allegations.

 

84               I agree with the Court of Appeal, which was unanimous on this point, that the first ground must be rejected:  the fact that the Chief Judge chose to rely on documents from Verbatim Communications Inc., an agency that had also been used by Miville Lapointe to support the first complaint laid against the appellant with the Conseil,  does not indicate any sort of collusion.  Verbatim Inc. provides "media monitoring services" and for that purpose merely gathers and reproduces information provided by the press, television and radio.  It does not alter its substance in any way.  Furthermore, as I mentioned earlier, the Comité made it clear that Judge Ruffo's general conduct was not in issue in the context of the first complaint.  The content of press clippings and radio and television interviews could therefore not be considered except with respect to the specific allegations made by Mr. Lapointe.  Moreover, there is no reason that the same documents could not be used for separate purposes.

 

85               Accordingly, the remaining two grounds should now be addressed, namely that the Conseil acted precipitously in examining the complaint and that the Chief Judge formulated the complaint in a vindictive manner.

 

(a)  Precipitous Conduct

 

86               The appellant argues that the Conseil departed from the usual procedure by not hearing her version of the facts during its preliminary examination of the complaint, thus depriving itself of adequate information to assess whether the complaint was admissible.  When it reviewed Miville Lapointe's complaint in June 1988, the Conseil had decided [translation] "to follow the usual procedure in this matter and designate Judge André Desjardins to receive and examine the complaint".  After hearing the appellant's and the complainant's respective versions of the events, Judge Desjardins had submitted a report to the Conseil recommending that an inquiry be held into certain aspects of the complaint.  I note that during the proceedings that followed Mr. Lapointe's allegations, the appellant challenged the legality of this delegation of authority, the benefit of which she now seeks to claim.  Be that as it may, for the purposes of the present case she is now arguing that this failure to appoint an examiner must be seen as evidence of bias on the Conseil's part.

 

87               In his reasons at p. 2220, Parent J. of the Superior Court concluded that the Conseil's decision not to follow this procedure was fully justified given that the Chief Judge's complaint was contained in a letter some thirty pages long and supported by numerous documents.  In Parent J.'s view, this situation eliminated the need for additional factual research and therefore made it possible for the Conseil to decide for itself on the admissibility of the complaint.  I share this view.  The purpose of delegation to an examiner, which incidentally is not mandatory under s. 265, para. 1 CJA, is solely to assess whether there are grounds for an inquiry.  In the present case, such an assessment was made possible not only by the extensive information provided by the Chief Judge in support of his complaint, but also by the fact that most of the information submitted to the Conseil was already in the public domain and had been widely disseminated.

 

88               More generally, I point out that the scope of the requirements imposed by the duty to act fairly and the audi alteram partem rule varies depending on the circumstances of each case.  Among the factors to be considered, the nature of the inquiry and its consequences are extremely important.  It is also interesting to note that this principle, which was stated by this Court in Irvine v. Canada (Restrictive Trade Practices Commission), [1987] 1 S.C.R. 181, at p. 231, was also recognized in Europe in the judgments of the European Court of Human Rights Le Compte, Van Leuven and De Meyere of 23 June 1981, Series A No. 43, and Albert and Le Compte of 10 February 1983, Series A No. 58 (reported in Pierre Lambert, "Les droits relatifs à l'administration de la justice disciplinaire dans la jurisprudence des organes de la Convention européenne des droits de l'homme", (1995) Rev. trim. dr. h. 161, at pp. 164‑65).

 

89               I am therefore of the opinion that it cannot be argued in this case that the duty to act fairly meant the appellant had to be given the opportunity to express her views during the initial examination of the complaint, despite the possible consequences of the decision to hold an inquiry concerning her and perhaps to suspend her during that inquiry pursuant to s. 276 CJA.  The appointment of an examiner is the first step in a procedure that can itself be described as preliminary, since after the formal inquiry the Conseil and the Comité can of their own initiative only reprimand the judge concerned or recommend that removal proceedings be initiated.  It will be recalled that removal is ultimately not their responsibility but that of the government, following an inquiry by the Court of Appeal (s. 95 CJA).  In this context and in the specific circumstances of the case, the Conseil's decision to depart from the usual procedure by not appointing an examiner certainly cannot be seen as evidence of bias.

 

90               The appellant argues, however, that the Conseil's precipitousness is apparent from other circumstances, specifically the October 25, 1990 session to which she was invited to explain why s. 276 CJA should not be applied to her.  In the appellant's submission, this confirms the fact that the Conseil had prejudged the question of suspending her during the inquiry before even hearing what she had to say.

 

91               The most worrying aspect of this question was raised during the hearing of the appeal, namely that by asking the appellant to justify why she should continue in her position during the inquiry, the Conseil actually transferred to her the burden of proof it had to discharge under s. 276 CJA.  However, a careful examination of the transcript of proceedings for the October 25, 1990 session, a copy of which is in the record, shows that if there was any confusion on the question, it was entirely cleared up when the chairman of the Conseil, at pp. 56‑57, made it clear to counsel for the appellant that there was no burden of proof on him in this regard.

 

92               In fact, the Conseil explained, at p. 46, that it would decide the suspension issue on the basis of factors set out in the complaint and all the documents accompanying it, but that before making its decision it was giving the appellant an opportunity to be heard.  It is true that the process seems to have been conducted with diligence, but in my view this becomes less significant when the October 25 session is no longer seen as an isolated event.  It must not be forgotten that the Conseil was already aware of certain facts that could prima facie have justified a suspension during the proceedings.  These included the first agreement between the appellant and the complainant that she would not sit during the inquiry into Mr. Lapointe's complaint and the appellant's clearly expressed intention to continue behaving in a similar manner despite being reprimanded by the Conseil on September 19, 1990.  The specific nature of Chief Judge Gobeil's complaint should also be considered:  unlike that of Mr. Lapointe, which was based on precise facts, it is based primarily on Judge Ruffo's general conduct and on the fear that some types of conduct affect the public's perception of the impartiality of judicial institutions.  The advisability of ordering a suspension depends on the judge's ability to act with the confidence of the parties and to continue to carry out his or her duties in a manner consistent with public order.  It is clear that such factors were directly in issue in the present case owing to the very nature of the complaint.  In addition, since the Comité was required to begin its inquiry within thirty days after communicating the complaint to the judge concerned (s. 271, para. 2 CJA), it was appropriate for the Conseil to deal with the suspension issue at the October 25, 1990 session:  this gave it enough time to make an informed decision before the inquiry began within the time prescribed by the CJA.

 

93               My colleague Justice Sopinka expresses surprise at the Conseil's refusal to hear the appellant on the appearance of bias by the Comité resulting from the complainant's identity at the hearing on suspension of the appellant, on the ground that it had already ruled on this matter at the meeting of the Conseil on October 17, 1990 when the complaint was received and the Comité set up.  I note that in raising the question of the jurisdiction of the Conseil and the Comité, counsel for the appellant indicated some uncertainty as to whether this argument should be raised before the Conseil or directly by evocation in the Superior Court, and made a point of asking, so as to avoid unnecessary preparation and argument, whether the Conseil would be prepared to reconsider its earlier decision.  The answer to this was that the decision on the Conseil's jurisdiction to receive the complaint and set up a committee of inquiry had already been made on October 17 and it would not reconsider that decision.  The hearing on the suspension of the appellant from performing her duties was adjourned to October 30, 1990.  On October 29, as we know, she initiated through her counsel the proceedings in evocation and for a stay order in the Superior Court.  I do not see how these circumstances suggest any untoward precipitous conduct on the part of the Conseil.

 

94               In view of the circumstances as a whole, I agree with the unanimous opinion of the Court of Appeal that there is no reason in the instant case to find that there was any precipitous conduct that might give rise to a reasonable apprehension of bias on the part of the Conseil members.

 

(b)  The Tone and Language of the Complaint

 

95               It should be noted at this point that it was at the Court of Appeal's invitation that counsel for the parties were able to express their views on the question of how the Chief Judge's complaint was worded:  the appellant's motion in evocation, which is in the record, does not refer specifically to this issue except in paragraphs 68 and 79, which state respectively that the complaint expresses unequivocal opinions and that it makes accusations based on supposed intentions.  It seems clear that this issue was not deliberately made the focus of the case.  Be that as it may, it is worth reproducing here in full those parts of the complaint that Rothman J.A., at pp. 186‑87, found incompatible with Chief Judge Gobeil's status:

 

[translation]  [The appellant's] comments, it cannot be ignored, occur in a specific and extremely serious context, following a lengthy decision by the Comité d'enquête of the Conseil de la magistrature confirming four breaches of professional ethics by Her Honour Judge Andrée Ruffo and, by majority decision, recommending the reprimand (one member proposing that it be recommended to the Minister of Justice that he present a request pursuant to section 95 of the Courts of Justice Act).

 

A reprimand by the disciplinary authority of a professional body is a very harsh sentence, and everyone expects that the person who is the subject of the reprimand will submit to it peremptorily with deference, with wise discretion and with the dignity that such circumstances dictate.

 

What is true for a professional person should be even more true for a judge, whose function is precisely to render enforceable judgments, decisions and sentences, and the reserve in his or her conduct and expression, out of deference to the authorities imposing the sanction, should be absolutely exemplary in the community.

 

A reprimand is meaningful and its use as an appropriate disciplinary measure is credible within the community only to the degree that the subject of the reprimand, in this case a judge, accepts it with dignity, recognizing her failings and sincerely wishing to mend her ways.  If some other course of action were to be allowed, it would make the reprimand an absolutely useless, if not ridiculous, remedy, and very seriously affect the credibility of the disciplinary process itself, and consequently the very credibility of the judiciary.  This is even more obvious in the face of a disciplinary report that is very judicious, very dispassionate, very respectful, and, in my opinion, of remarkable quality overall.

 

                                                                   . . .

 

Thus, when the report of the Comité d'enquête concluded that not only could she not do what she did, and was prepared to do again, but that this constituted a breach of section 1 of the Code of Ethics, in deliberate disregard of the rule of law, so that the reprimand ought to have induced her to mend her ways in future, Her Honour Judge Ruffo made the above‑quoted statements.

 

Accordingly, in doing so she contravened section 4 of the Code of Ethics, placing herself in a position where she cannot faithfully carry out her functions.  [Emphasis added by Rothman J.A.]

 

Rothman J.A. went on to quote passages from the complaint in which the Chief Judge commented on the appellant's public statements about resources provided to children (at pp. 187‑89):

 

[translation]  This set of documents discloses, among other things:

 

1.That Her Honour Judge Andrée Ruffo enjoys significant support, particularly because:

 

(a)of the nature of "the cause" of which she has made herself the champion:  children;

 

(b)of the style in which she has pursued her cause, which has been characterized as "disturbing" and "denunciatory";

 

(c)of the fact that she is a judge.

 

2.That the conduct of Her Honour Judge Ruffo has created reactions of a nature such that, for many, she is a model of what a judge should be.

 

3.That, on the other hand, some disagree with the fact that, being a judge, she behaves publicly as she does, regardless of the merit of the cause she has embraced.

 

4.That, for some people, who have confused the nature of the complaints to the Conseil's Comité d'enquête with her later conduct, she is being treated unfairly by the judiciary and the Conseil de la magistrature.

 

5.That a great number, given the merit of Ms. Ruffo's cause and her tenacity or enthusiasm in defending or promoting it, overlook or subordinate the ethical issue of her conduct in face of the rules of professional ethics governing judges and the fundamental concept of acting in a reserved manner.

 

6.That Ms. Ruffo has for some people become the almost exclusive symbol of the struggle on behalf of children and their rights.

 

7.That her conduct has brought her support that is completely inappropriate for a judge; the support of five parliamentarians, as elected members.

 

8.That Her Honour Judge Ruffo has become "a case", "an affair:  the Ruffo affair", which puts squarely at issue the objectivity, impartiality and independence that a judge must be seen to demonstrate in all circumstances.

 

I have referenced my intervention to date to specific complaints.  It is possible that, as I submit, some specific actions, some specific situations constitute specific breaches of the code of ethics.  However, it is impossible, in the case of Her Honour Judge Ruffo, not to consider the conduct as a whole that she has voluntarily and deliberately adopted for more than two years and that has now made her a known public figure, a "star", a "heroine", a "Joan of Arc", "an affair".

 

Notwithstanding the opinion of her Chief Judge, notwithstanding certain public disagreements, notwithstanding the disagreement of her colleagues, which is known to her, and, since September 19, 1990, notwithstanding the report of the Comité d'enquête and the reprimands addressed to her by the Conseil, she says she does not wish to change her style and states publicly that she intends to continue.

 

                                                                   . . .

 

The totality of the observations, comments, criticisms, denunciations, positions, statements and associations with groups and campaigns, and the frequency of same, regardless of forum, and her attitude since the reprimand of September 19, now lead me to conclude as follows in the case of Her Honour Judge Andrée Ruffo:

 

1.She has violated and continues to violate the duty to act in a reserved manner which every judge is required to observe;

 

2.She has ignored and continues to ignore the imperative duty of impartiality and objectivity of the Code of Ethics and of the Canadian Charter of Rights and Freedoms  and of the Quebec Charter of Human Rights, which she invoked on her own behalf when she claimed she had been deprived of her fundamental right of free speech;

 

3.She has been and continues to be heedless about preserving the independence of the judiciary and accordingly of the courts, the independence of which is guaranteed to citizens by the Canadian and Quebec charters;

 

4.She has either engaged in activities or associated with movements or campaigns the positive value of which is of course obvious, but in a manner and in circumstances incompatible with the exercise of judicial authority;

 

5.In practice, she has placed herself in a position where she cannot faithfully carry out her functions;

 

6.Her obvious desire to make the general public the judge of the ethical situation and of her disagreement with the findings of the report of the Comité d'enquête and the reprimand of the Conseil de la magistrature offends judicial dignity in the ethical meaning of the word and impeaches the independence of the judiciary, from which she cannot dissociate herself as an institution.  [Emphasis added by Rothman J.A.]

 

96               I note at the outset that the complaint's tone and content must be assessed on the basis of its specific nature:  as I stated earlier, it focuses on an overall situation involving both a judge's conduct and the public's possible perception thereof.  By raising what he considered a violation of the duty to act in a reserved manner, Chief Judge Gobeil was relying on a flexible and all‑encompassing concept, which meant that the complaint had to set out such basic information as the nature of the rule to be observed, the facts that indicated the violation and the appropriate remedy in the specific circumstances of the case.  I will have an opportunity to outline this concept later.

 

97               Because of the general nature of the duty to act in a reserved manner, it was thus necessary for the complainant to specify and explain the relevant aspects that he felt might impair Judge Ruffo's ability to perform her duties, and in particular to continue to be seen as impartial.  In light of this, it was clearly helpful to deal with specific facts and also to describe a more general situation.  This required the complainant to assess the impact of a body of information.  Because of the quantity and scope of the impugned attitudes and facts, the complaint resembles an indictment, and it is true that this is reinforced by the tone used by its author.  However, the complainant cannot be criticized for setting out facts and conduct that were no more nor less than the matter to be assessed by the Comité, however extensive it might be.  This matter could not in itself affect a reasonable and well‑informed person's perception of the Comité's impartiality.

 

98               In fact, the concerns expressed about the complaint have to do with the fact that it passes judgment.  Although this is inherent in any complaint, the Chief Judge is being criticized here specifically for his categorical and condemnatory language.  The complaint shows that Chief Judge Gobeil and Judge Ruffo disagreed in their respective ideas about judges' freedom of expression.  It is true that in this respect one might have wished that the complaint had been worded more neutrally and that after setting out the relevant facts it had simply concluded that an inquiry was needed.  Without approving the wording that the Chief Judge chose to use for this purpose, I note that while he vigorously condemned the appellant's conduct he did not attack her personally.  It should be specified in this regard that expressions such as "Joan of Arc", "Ruffo affair" and "accusatory", which seem vindictive at first glance, in fact merely restate terms used by the press itself.  They were used to illustrate the nature of the allegations made by the Chief Judge, who was not, however, the source of such comments.  In addition, it should be mentioned that the Chief Judge criticized the appellant not for espousing a cause ‑‑ he himself considered it a worthwhile one ‑‑ but for doing so as a member of the judiciary.  The appellant's suggestion that the complaint makes accusations based on supposed intentions can therefore not be accepted, as the Chief Judge's concerns related not to illegitimate intentions but to activities and the public's perception of them.

 

99               In the final analysis, what is in issue here is the tone used and the position of the person using it, not so much on their own account as because of their anticipated effect on a well‑informed person's perception of the impartiality of the Comité responsible for deciding the outcome of the complaint in this case.  To evaluate whether this apprehension is justified, it is necessary to assess the position of both the Chief Judge and the decision maker as well as the relationship between them.  It is not necessary at this point to repeat the earlier analysis with respect to institutional bias.  It should suffice to note that the Chief Judge's position carries with it no, or at best very little, direct or material authority.  His moral authority, moreover, is legitimate and would be harmful only if it led the decision maker to adopt opinions it did not share.  The Comité is for the most part made up of judicial professionals who are bound by an oath and whose functions essentially require them to be able to decide dispassionately between positions that are diametrically opposed and generally fervently defended.  On this point, I adopt the comments of Chevalier J.A., at p. 199:

 

                   [translation]  [A] well‑informed citizen cannot be unaware that hearing and determining disputes is a judge's bread and butter.  He is therefore, by necessity, required to work in an essentially adversarial context in which the parties naturally display hostility toward each other, accusing each other, attacking and counter‑attacking, and in which the exaggeration with which they often present their respective positions is commonplace in his court.

 

                   This typical judge is thus, to the knowledge of the informed citizen, a professional accustomed to presiding day after day over acrimonious debates in the midst of which he must remain serene, keep calm and in all circumstances separate what is receivable from what is not.

 

100             To conclude on this point, mention should be made of IWA v. Consolidated‑Bathurst Packaging Ltd., [1990] 1 S.C.R. 282, in which this Court had to rule on the validity of the Ontario Labour Relations Board's practice of holding a meeting of the full Board to discuss the draft of the decision to be rendered by a three‑member panel.  This practice had been institutionalized to promote consistency in Board decisions.

 

101             A majority of the judges of this Court found that such discussions did not prevent a decision maker from adjudicating in accordance with his or her own conscience or constitute an obstacle to his or her freedom, as the ultimate decision would be that of the decision maker for which he or she would assume full responsibility.  Applied to the circumstances of the present case, the principle underlying this finding suggests that the experience of Comité members confirms their independence and impartiality.  They have nothing to gain by not deciding as their consciences dictate and nothing to lose by doing justice.  There is accordingly no reason to fear that Comité members would be influenced by the language of the complaint or the particular status of its author.

 

102             In light of the foregoing, I am of the view that the specific circumstances of the case cannot give rise to an apprehension in the mind of a reasonable and well‑informed person that the members of the Conseil and of the Comité do not have the impartiality necessary to perform their duties.

 

B.Whether Section 8 of the Code of Ethics is Void for Vagueness

 

103             In support of her appeal, the appellant is challenging, under s. 2 (b) of the Canadian Charter , the constitutional validity of s. 8 of the Code of Ethics, which establishes the duty of judges appointed under the CJA to act in a reserved manner.  With respect, since the Comité has not yet had an opportunity to hear the merits of the case, it appears premature for this Court to rule on this delicate issue, in a context in which no evidence has been adduced and no light can be shed on the issue by lower court judgments (see in this regard Mackay v. Manitoba, [1989] 2 S.C.R. 357, at pp. 361‑63; Danson v. Ontario (Attorney General), [1990] 2 S.C.R. 1086, at pp. 1099‑1101; and Hy and Zel's Inc. v. Ontario (Attorney General), [1993] 3 S.C.R. 675, at pp. 693‑94).  The issue submitted to this Court by the appellant is one relating to application, which must be shaped by circumstances and should not be dealt with in the abstract.  Accordingly, the following comments will be confined to the subject matter of

s. 8 of the Code of Ethics rather than its application to the facts involved in this case.  I have reproduced the section below for ease of reference:

 

8.  In public, the judge should act in a reserved, serene and courteous manner.

 

104             When the appeal was heard, the appellant focused her argument on the vagueness of the duty to act in a reserved manner.  I note, however, that she discontinued her appeal to this Court in the case that dealt directly with this issue (Ruffo v. Conseil de la magistrature, [1989] R.J.Q. 2432 (Sup. Ct.), Philippon J., aff'd (1992), 98 D.L.R. (4th) 202 (Que. C.A.)).  Nevertheless, I feel that certain observations on this question are in order.

 

105             I had an opportunity to consider the vagueness theory in depth in R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606.  The same analysis also served as a premise for my reasons in Ontario v. Canadian Pacific Ltd., [1995] 2 S.C.R. 1031.  Essentially, a legal norm will be found to be sufficiently precise if it gives rise to "legal debate", as I explained at pp. 639‑40:

 

[These norms] bear substance, and they allow for a discussion as to their actualization.  They therefore limit enforcement discretion by introducing boundaries, and they also sufficiently delineate an area of risk to allow for substantive notice to citizens.

 

                                                                   . . .

 

                   A vague provision does not provide an adequate basis for legal debate, that is for reaching a conclusion as to its meaning by reasoned analysis applying legal criteria.  It does not sufficiently delineate any area of risk, and thus can provide neither fair notice to the citizen nor a limitation of enforcement discretion.  Such a provision is not intelligible, to use the terminology of previous decisions of this Court, and therefore it fails to give sufficient indications that could fuel a legal debate.  It offers no grasp to the judiciary.  This is an exacting standard, going beyond semantics.  [Emphasis added.]

 

106             The assessment of whether the duty to act in a reserved manner falls within these parameters certainly requires that this duty be defined with a certain clarity.  However, I do not think it is up to this Court to define the duty in relation to the specific circumstances of the case:  the responsibility for doing so lies primarily with the Comité and, more generally, with the individuals and bodies responsible for judicial ethics.  Furthermore, the responsibility for determining what behaviour best reflects the requirements inherent in this duty, and for adopting that behaviour, lies primarily with each judge, whose appointment is a sign of confidence in him or her personally.

 

107             The duty of judges to act in a reserved manner is a fundamental principle.  It is in itself an additional guarantee of judicial independence and impartiality, and is aimed at ensuring that the public's perception in this respect is not affected.  The value of such an objective can be fully appreciated when it is recalled that judges are the sole impartial arbiters available where the other forms of dispute resolution have failed.  The respect and confidence inspired by this impartiality therefore naturally require that judges be shielded from tumult and controversy that may taint the perception of impartiality to which their conduct must give rise.

 

108             The duty to act in a reserved manner has been enshrined in principle at the international level in various documents, including the Universal Declaration on the Independence of Justice adopted unanimously at the final plenary session of the World Conference on the Independence of Justice held in Montreal on June 10, 1983 and set out in S. Shetreet and J. Deschênes, eds., Judicial Independence:  The Contemporary Debate (1985), at pp. 447 et seq.  It provides as follows:

 

2.10Judges shall always conduct themselves in such a manner as to preserve the dignity of their office and the impartiality and independence of the judiciary.  Subject to this principle, judges shall be entitled to freedom of belief, expression, association and assembly.  [Emphasis added.]

 

As well, the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders, which was held in Milan in 1985, adopted the Basic Principles on the Independence of the Judiciary (published in 1988 by the United Nations Department of Public Information), which provide inter alia as follows:

 

                   8.  In accordance with the Universal Declaration of Human Rights, members of the judiciary are like other citizens entitled to freedom of expression, belief, association and assembly; provided, however, that in exercising such rights, judges shall always conduct themselves in such a manner as to preserve the dignity of their office and the impartiality and independence of the judiciary.  [Emphasis added.]

 

109             A number of writers have also dealt with the duty to act in a reserved manner.  See, for example, Canadian Judicial Council, Commentaries on Judicial Conduct (1991); The Hon. Mr. Justice Thomas, Judicial Ethics in Australia (1988); Steven Lubet, Beyond Reproach:  Ethical Restrictions on the Extrajudicial Activities of State and Federal Judges (1984); Shetreet and Deschênes, supra; A. W. MacKay, "Judicial Free Speech and Accountability:  Should Judges Be Seen but Not Heard" (1993), 3 N.J.C.L. 159; M. Felsky, "The Berger Affair and the Independence of the Judiciary" (1984), 42(1) U.T. Fac. L. Rev. 118; J. Webber, "The Limits to Judges' Free Speech:  A Comment on the Report of the Committee of Investigation into the Conduct of the Hon. Mr. Justice Berger" (1984), 29 McGill L.J. 369; and L. Dion, "Plus de démocratie pour les juges" (1981), 41 R. du B. 199.  There is no need to discuss the specific content of these documents here; it should simply be noted that they all reach the same conclusion:  they recognize in every respect that there is a need for standards of conduct within the judiciary designed to maintain the public's confidence in it so as to ensure the continuity of the rule of law in its present form.  I recognize that the same consensus does not exist among these writers regarding how such standards can be translated into conduct, be it conduct that is appropriate in court or conduct that judges may adopt in public.  Some are strict while others advocate greater freedom.  This situation, which some see as a sign of dissatisfaction and as a clear invitation to establish more precisely defined parameters for the duty to act in a reserved manner, is in my opinion legitimate and natural.  It is simply the reflection of ethical rules themselves, which by nature are difficult to define precisely.

 

110             Ethical rules are meant to aim for perfection.  They call for better conduct not through the imposition of various sanctions but through compliance with personally imposed constraints.  A definition, on the other hand, sets out fixed rules and thus tends to become an upper limit, an implicit authorization to do whatever is not prohibited.  There is no doubt that these two concepts are difficult to reconcile, and this explains the general nature of the duty to act in a reserved manner:  as an ethical standard, it is more concerned with providing general guidance about conduct than with illustrating specifics and the types of conduct allowed.  It is interesting to note in this regard the comments of Professor H. Patrick Glenn on the Code of Ethics adopted in 1987 by the Canadian Bar Association.  They are of general application and particularly enlightening in this context:  "It is, in short, a Code which instructs in how to act, and not in what to do" (see "Professional Structures and Professional Ethics" (1990), 35 McGill L.J. 424, at p. 438).  Moreover, the distinctive nature of ethical standards becomes apparent when they are compared with the standard for recusation set out in art. 234 of the Code of Civil Procedure, R.S.Q., c. C‑25.  Article 234 contains a series of precisely defined criteria such as relationship, mortal enmity and conflict of interest, which when present make it possible to initiate recusation proceedings against a judge.  Recusation is therefore a necessary sanction for a violation that has already occurred or been perceived, whereas the primary purpose of ethics, in contrast, is to prevent any violation and maintain the public's confidence in judicial institutions.  It goes without saying that the same legislative response is not required for these two separate concepts.

 

111             In short, more precision cannot be required of ethical rules than their subject matter allows.  This does not in itself violate the principle that a professional whose conduct is in question must be able to know both the specific facts alleged against him or her and the substance of the standard he or she is alleged to have breached.  In "L'imprécision des codes de déontologie professionnelle" (1977), 37 R. du B. 669, at p. 671, Y. Ouellette makes the following comments on this point, which still hold true:

 

[translation]  . . . breaches of discipline do not have to be defined as precisely as penal offences.  Codes of ethics and discipline may thus be considered an exception to the rule that regulations must be certain or precise.

 

                   Indeed, an examination of some codes of professional ethics reveals a number of provisions that, while vague, set out fundamental principles that by their very nature are general yet probably perfectly intelligible to those in the profession.  [Emphasis added.]

 

112             This last passage illustrates the distinction that must be made between vagueness in the everyday sense and constitutional vagueness.  In this respect, the general nature of the duty to act in a reserved manner as it is worded does not, as far as substance is concerned, mean that an area of risk is not sufficiently delineated or that there is no adequate basis for legal debate, as I explained in Nova Scotia Pharmaceutical Society, supra.  By way of illustration, I should mention that the issue of the duty to act in a reserved manner was discussed in Ruffo v. Conseil de la magistrature, [1989] R.J.Q. 2432 (Sup. Ct.), Philippon J., aff'd (1992), 98 D.L.R. (4th) 202 (Que. C.A.); the Superior Court and the Court of Appeal both found that the concept had an identifiable content that was sufficiently precise to operate as a professional standard.  This is certainly an eloquent example of a matter that can give rise to legal debate.  Accordingly, and in light of the principles set out above, I am of the view that there is no reason to find that the duty to act in a reserved manner is void on the ground of vagueness.

 

VI ‑ Disposition

 

113             I would dismiss the appeal with costs throughout and answer the constitutional questions as follows:

 

1.Do ss. 263 and 265 of the Courts of Justice Act, R.S.Q., c. T‑16, if they are to be interpreted as allowing the Chief Judge of the Court of Québec and Chairman of the Conseil de la magistrature to bring a complaint against a judge of the Court of Québec before the Conseil de la magistrature, violate the principles of judicial impartiality and independence guaranteed inter alia by the preambles to the Constitution Act, 1867  and the Canadian Charter of Rights and Freedoms , as well as by s. 7  of the Canadian Charter of Rights and Freedoms ?

 

A.  No.

 

2.If the answer to question 1 is affirmative, do ss. 263 and 265 of the Courts of Justice Act constitute reasonable limits prescribed by law that can be demonstrably justified in a free and democratic society under s. 1  of the Canadian Charter of Rights and Freedoms ?

 

A.  The question does not arise.

 

3.Does s. 8 of the Judicial Code of Ethics, O.C. 643‑82, (1982) 114 G.O. II, 1253, which provides that judges of the Court of Québec should act in a reserved manner, violate s. 2 (b) of the Canadian Charter of Rights and Freedoms ?

 

A.It is premature for the Court to rule at this stage on the question as stated.  However, the duty to act in a reserved manner is not found to be unconstitutional for vagueness.

 

4.If the answer to question 3 is affirmative, does s. 8 of the Code constitute a reasonable limit prescribed by law that can be demonstrably justified in a free and democratic society under s. 1  of the Canadian Charter of Rights and Freedoms ?

 

A.  The question does not arise.

 

                   English version of the reasons delivered by

 

114             Sopinka J. (dissenting) ‑‑ Having read the reasons of my colleague Justice Gonthier, I would answer the constitutional questions as he does and for the reasons he gives.

 

115             Nevertheless, on the question of the validity of s. 8 of the Judicial Code of Ethics, O.C. 643-82, (1982) 114 G.O. II, 1253, in light of s. 2 (b) of the Canadian Charter of Rights and Freedoms , I would add the following comments.  Although s. 8 is not void for vagueness, it is open to very broad interpretation.  Before determining whether it imposes an unreasonable limitation on freedom of expression, it would be preferable to know how it will be interpreted by the Conseil de la magistrature (the "Conseil") or the Comité d'enquête (the "Comité").  An appellate court has a duty to respect as far as possible the interpretation given to rules of ethics by the professional body responsible for applying them.  See in this regard MacDonald Estate v. Martin, [1990] 3 S.C.R. 1235.

 

116             I agree with Gonthier J. that the legislative structure under which the Conseil receives and deals with complaints made against judges does not violate the principle of judicial independence.  In this sense, therefore, I cannot conclude that there is any inherent or inevitable bias in the legislative framework:  there is no reason to suppose that in every case, or even in a substantial majority of cases, a reasonable apprehension of bias would be raised in the mind of a well‑informed person.  However, the situation here is one which approaches the threshold of tolerance.  An appearance of bias may result in some circumstances even though the process followed is consistent with the statutory rules.  For example, if the Chief Judge filed a complaint and appeared at the hearing as a party to the action, presented evidence to support the complaint and cross‑examined the judge concerned and his or her witnesses, it would be difficult to conclude that there is no appearance of bias.  This situation was avoided here since the Chief Judge agreed to appear and testify before the Comité without in so doing acting as a party to the proceedings.  Nevertheless, I concur in the view of Rothman J.A. of the Court of Appeal that the Chief Judge's authority to file a complaint places the Conseil and the Comité "close to the edge of the fine line that separates . . . impartiality and . . . partiality" ((1992), 98 D.L.R. (4th) 176, at p. 185).  I conclude that a number of factors, including the tone and language of the complaint, when taken together go beyond the limits and so raise a reasonable apprehension of bias.  Consequently, and with respect, I cannot share my colleague's view on this question.

 

117             Although I subscribe to Rothman J.A.'s opinion that the tone and language of the complaint are inappropriate, I am of the view that certain other important factors should not be overlooked.  As de Grandpré J. put it in Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369, a well‑informed person must have all the necessary information.  The question of bias must therefore be assessed in general terms taking into account all relevant aspects.  A well‑informed person would not assess each aspect in isolation without regard to context.  Whereas any one aspect would undoubtedly not create an apprehension of bias, when taken together they might well lead to the opposite result.  In my view, therefore, the general context of the case at bar reinforces Rothman J.A.'s conclusion, with which I entirely agree, that the tone and language of the complaint are sufficient to raise an apprehension of bias.  I will now proceed to consider the various relevant factors.

 

118             I do not agree that the second complaint can be considered apart from the circumstances surrounding the first complaint.  The second complaint, laid by Chief Judge Gobeil, seems to have resulted from the appellant's allegedly inappropriate conduct following the reprimand contained in the decision of the Comité on the first complaint.  A significant part of the second complaint is based on the allegation of the appellant's contempt for the decision rendered by the Comité and given effect to by the Conseil (it should be noted that in connection with the reprimand the Conseil must act on the Comité's recommendation:  s. 279 of the Courts of Justice Act, R.S.Q., c. T‑16 ("CJA"):  the Comité's recommendation is thus binding on the Conseil).  After listing the comments and conduct attributed to the appellant, Chief Judge Gobeil said the following in his complaint:

 

[translation]  These comments, it cannot be ignored, occur in a specific and extremely serious context, following a lengthy decision by the Comité d'enquête of the Conseil de la magistrature confirming four breaches of professional ethics by Her Honour Judge Andrée Ruffo and, by majority decision, recommending the reprimand (one member proposing that it be recommended to the Minister of Justice that he present a request pursuant to s. 95 of the Courts of Justice Act).

                                                                   . . .

 

A reprimand is meaningful and its use as an appropriate disciplinary measure is credible within the community only to the degree that the subject of the reprimand, in this case a judge, accepts it with dignity, recognizing her failings and sincerely wishing to mend her ways.  If some other course of action were to be allowed, it would make the reprimand an absolutely useless, if not ridiculous, remedy, and very seriously affect the credibility of the disciplinary process itself, and consequently the very credibility of the judiciary.  This is even more obvious in the face of a disciplinary report that is very judicious, very dispassionate, very respectful, and, in my opinion, of remarkable quality overall.

 

                                                                   . . .

 

Thus, when the report of the Comité d'enquête concluded that not only could she not do what she did, and was prepared to do again, but that this constituted a breach of s. 1 of the Code of Ethics, in deliberate disregard of the rule of law, so that the reprimand ought to have induced her to mend her ways in future, Her Honour Judge Ruffo made the above‑quoted statements.

 

Accordingly, in doing so she contravened s. 4 of the Code of Ethics, placing herself in a position where she cannot faithfully carry out her functions.

 

119             The complaint even points to the fact that the Comité's decision on the first complaint was the subject of a dissent recommending that a motion to remove be filed with the Minister of Justice.  This dissenting member, Judge Mercier, chairman of the Conseil for the second complaint, had to rule on the matter which is the subject of the present appeal at the Conseil's hearing on October 25, 1990.  It should be noted that of the five members of the Comité three are judges of the Court of Québec, including an associate chief judge and a co‑ordinating judge, one is the Chief Judge of the Municipal Court of Montréal and one is a lawyer.  That is the makeup of the Comité which is to hear a complaint filed by someone who is the chief judge of a majority of its members.  Chief Judge Gobeil is also the chairman of the Conseil from which the members of the Comité were appointed.  One of the principal charges in the complaint refers to the appellant's disregard of the Comité's decision on the first complaint, which was approved by the Conseil:  all the members of the Comité set up to hear the second complaint were members of the Conseil which issued the reprimand following the first complaint.

 

120             In accordance with a suggestion by Chief Judge Gobeil the Comité agreed to appoint counsel to handle the presentation of evidence against the appellant.  This procedure is supposed to avoid any awkward consequences resulting not only from the ability of the Chief Judge (or his counsel) to file a complaint, recognized by the CJA, but also from his authority to present the necessary evidence and make the arguments in support of the complaint.  Even though the appointment of counsel by the Comité is in fact provided for in the CJA (s. 281), this is a rather unusual procedure in a disciplinary context.  It places the parties in a situation where the opponent of the person defending himself or herself against the complaint is the tribunal's counsel.

 

121             I am also of the view that the proceedings which followed the filing of the complaint indicate unwarranted haste.  The usual practice of making a member of the Conseil responsible for the receipt and preliminary examination of the complaint was not followed in this case.  I am not persuaded that this stage is optional, as the respondents argued.  Under s. 265 CJA, the Conseil must examine the complaint before deciding whether an inquiry is necessary:  if it is, the Conseil appoints a comité d'enquête.  The purpose of the preliminary examination is to ensure that the complaint is well‑founded (s. 267 CJA).  It is thus a stage which acts as a screening device to eliminate frivolous or unjustified complaints that do not require further inquiry.  Clearly, a disciplinary inquiry is a traumatic ordeal for a judge:  the stage of the preliminary examination thus gives the judiciary important protection.  Whether or not it is mandatory, I am not impressed by the explanation offered to justify the decision to bypass the usual stage of the preliminary inquiry.  It was suggested to the Court that the detailed nature of the second complaint made such an examination superfluous.  It must be assumed that the Conseil intended to perform its statutory duty itself in assessing the complaint, on October 17, 1990.  A complaint, however, is only an allegation.  The provisions of the CJA contemplate more than just a superficial examination of the complaint.  The CJA provides that the Conseil may require any person to provide information it considers necessary and that it must forward a copy of the complaint to the judge concerned and ask for an explanation.  The fact that this stage was bypassed gives the impression that the Conseil dealt with the complaint as evidence and not merely as an allegation.

 

122             The same sense of haste was displayed on October 25, 1990, when the appellant and her counsel were called before the Conseil to determine whether the appellant should be suspended during the inquiry as permitted by s. 276 CJA.  It would appear that the Conseil sought to reverse the onus of proof, at least initially, by demanding that the appellant show why she should not be suspended during the inquiry.  When counsel for the appellant objected, this approach was apparently abandoned.  However, the Conseil refused to hear the arguments of counsel for the appellant on the question of the Conseil and the Comité's jurisdiction, pointing out to him that this question had already been decided at the meeting of the Conseil on October 17, 1990, at which the complaint had been received and the Comité set up.  One of the appellant's arguments had to do with the appearance of bias on the part of the Comité resulting from the complainant's identity.  I find it surprising that the Conseil refused to hear the appellant on such a serious matter as the jurisdiction of the Conseil and Comité, on the ground that it had already ruled on this matter ex parte and proprio motu.  My colleague is of the view that the speed of the proceedings was due to the statutory duty to call the parties within thirty days of receiving the complaint.  I do not agree that the relevant provision imposes such a time limit on the presentation of evidence.  In my opinion, only the calling of the parties is required, and there is no reason why this could not have taken place on October 25, 1990.  In any case, the Conseil and Comité do not appear to have proposed such an explanation for this precipitous conduct.  Madam Justice Hélène LeBel dealt with the matter in connection with a motion for a stay order filed by the appellant in the Superior Court.  The motion was granted on November 1, 1990.  LeBel J. said the following concerning precipitousness:

 

[translation]  . . . additionally, the court was not given any evidence or any indication that special reasons exist in this case to justify or require immediate action.

 

(Ruffo v. Conseil de la magistrature, Sup. Ct. Mtl., No. 500‑05‑014569‑907, November 1, 1990, J.E. 91‑31.)

 

123             This therefore is the context in which the tone and language of the complaint filed by Chief Judge Gobeil must be considered.  It is not necessary to repeat Rothman J.A.'s comments on the subject.  He noted that the complaint is more in the nature of a judgment than a complaint:  that is an accurate observation.  I cannot agree with my colleague's opinion that passing judgment is inherent in any complaint.  Like any statement of claim, a complaint should contain allegations and avoid the expression of personal opinions or conclusions.  This complaint contains both which are expressed with considerable vehemence.

 

124             I agree with my colleague when he says that the scope of the rules of natural justice varies depending on the circumstances, in particular the consequences that may result from an inquiry.  I cannot agree, however, that the proceedings in question were purely or primarily in the nature of an inquiry.  The Comité may make an official reprimand and may even recommend that removal proceedings be instituted.  Regardless of the question of removal, it must be recognized that a reprimand is an extremely serious punishment for a judge.  A reprimanded judge is a weakened judge:  such a judge will find it difficult to perform judicial duties and will be faced with a loss of confidence on the part of the public and litigants.  This reality is recognized by Chief Judge Gobeil in his complaint when he says:

 

[translation]  A reprimand by the disciplinary authority of a professional body is a very harsh sentence, and everyone expects that the person who is the subject of the reprimand will submit to it peremptorily with deference, with wise discretion and with the dignity that such circumstances dictate.

 

125             The merits of the complaint against the appellant are not at issue in this appeal.  The Court is concerned here with an appearance of bias on the part of the tribunal in light of the circumstances I have tried to outline above.  Every judge, like every citizen, has the right to a hearing by a tribunal which inspires public confidence.  Observance of this right is especially important when the reputation and livelihood of a judge or a citizen are at stake.  What must be determined is not whether the tribunal actually did, or is likely to, demonstrate bias.  On the contrary, I am persuaded that the members of the Comité harbour no prejudices against the appellant.  Nonetheless, the law in this area recognizes that it is not possible to determine accurately the actual state of mind of a tribunal.  It is for this reason that the appellant only has to establish an appearance of bias in order to oust the tribunal's jurisdiction.  For this purpose the law adopts the fiction of the well‑informed person as a means of referring to public opinion concerning the credibility of these proceedings.  If there is an appearance of bias, neither the public nor the parties can trust the findings of the inquiry.  Considering all the circumstances surrounding this matter, I have come to the conclusion that a well‑informed person would have a reasonable apprehension of bias.  The record thus leaves the impression that the appellant would not have the benefit of an impartial hearing or order concerning the complaint laid against her by Chief Judge Gobeil.

 

126             I would accordingly allow the appeal, set aside the judgment of the Court of Appeal and those of the lower tribunals and quash the complaint and all related proceedings, the whole with costs against the respondents throughout.

 


                   Appeal dismissed with costs, Sopinka J. dissenting.

 

                   Solicitors for the appellant:  Langlois Robert, Montréal.

 

                   Solicitors for the respondents:  McCarthy Tétrault, Montréal.

 

                   Solicitor for the mis en cause the Honourable Albert Gobeil:  François Aquin, Montréal.

 

                   Solicitor for the mis en cause the Attorney General of Quebec:  The Department of Justice, Sainte‑Foy.

 

                   Solicitor for the intervener:  The Ministry of the Attorney General, Toronto.

 

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