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Judicial panel won’t push for judge’s ouster

Thursday, May 05, 2016 @ 8:00 PM | By Cristin Schmitz

The Canadian Judicial Council (CJC) has dismissed allegations that Quebec Superior Court Justice Michel Girouard used cocaine, but won’t deal on the merits with its own inquiry committee’s recommendation that the judge be removed for giving “false and deceitful evidence” in defending himself.

After three years and hundreds of thousands of dollars spent delving into the judge’s conduct — as well as several costly, taxpayer-funded interlocutory court challenges to the discipline process brought by the judge — the disciplinary body for Canada’s 1,134 federally appointed judges announced April 20 that it would not recommend Justice Girouard’s removal from the bench to federal Justice Minister Jody Wilson-Raybould.

The council said allegations that the judge purchased drugs for his own use before he was appointed to the bench in 2010 were “not proven,” on the balance of probabilities. This echoed the conclusion expressed last November by the three-person CJC inquiry committee charged with hearing evidence, finding facts and making recommendations to the larger council.

However, the council of 39 chief justices and associate chief justices left another allegation hanging over the judge’s head by refusing to address, on the merits, whether he attempted to mislead the inquiry when he testified about the drug-use allegations — as two members of a CJC inquiry committee found last year (albeit with a strong dissent from the third member).

“This outcome seems to me to be a missed opportunity to clear the air and address the inquiry’s serious findings in a meaningful and transparent way,” said Osgoode Hall Law School dean Lorne Sossin. “In the result, we are left with the conclusion of the inquiry committee that Justice Girouard attempted to mislead the committee sufficient to call into question his credibility, which the CJC has chosen not to address,” Sossin said. “How is he to continue to discharge his role as a judge in light of the CJC’s decision not to consider the inquiry’s findings? Since no new process was ordered, Justice Girouard is denied an opportunity to challenge these conclusions, and the public is denied an opportunity to restore its confidence in Justice Girouard’s integrity.”

The judge’s counsel Gérald Tremblay of Montreal’s McCarthy Tétrault, said his client was vindicated by the 17 chief justices who voted unanimously on behalf of council not to recommend the judge’s removal (as is customary, the chair did not vote).

“In my opinion, if a cloud exists, it’s because the media will continue to make it exist because it does not exist anymore in reality,” said Tremblay, whose co-counsel was Louis Masson of Jolicoeur Lacasse in Quebec City. “Are we going to second-guess 17 chief justices of the country?” Tremblay asked. “Come on!”

He said Justice Girouard’s return to work was welcomed by the bâtonnier of the judge’s region of Abitibi. “The independence of the judiciary is so important that the minute the [judicial conduct] process is over, people should go and say: ‘All right, this matter is over, this person is now…back in business as a judge, and he should be entitled to the same respect as any of his colleagues,’ ” said Tremblay, himself a former president of the Quebec bar.

The council said it would not deal with the assertion by the majority of the inquiry committee that the judge testified dishonestly during the inquiry because the majority failed to give the judge notice of — or an opportunity to respond to — their conclusion that he should be removed because his testimony “lacked candour, honesty and integrity” and “he deliberately attempted to mislead the committee by concealing the truth” — two conclusions firmly rejected by the dissenting member of the inquiry.

“In this report, we do not consider the majority’s conclusion that the judge attempted to mislead the committee by concealing the truth and that such conduct places him in a position incompatible with the execution of his office,” says the CJC’s report.

“The council takes this approach because the judge was not informed that the specific concerns of the [inquiry committee’s] majority were a distinct allegation of misconduct to which he must reply in order to avoid a recommendation for removal,” the council explained. “Because the judge was entitled to this kind of notice and did not get it, the council does not know whether the majority’s concerns would have been resolved had it received an informed response to them from the judge. Because we do not know if the majority’s concerns would have been resolved, the council, itself, cannot act upon the majority’s concerns as if they were valid.”

Sossin found that reasoning puzzling. “Given the concerns around integrity arose as part of the inquiry process itself…it is not clear how advance notice could have been provided by the inquiry?” he noted by e-mail. “However, once the CJC identified this as a flaw, the usual approach in administrative law would be to remedy a finding that the process did not meet the duty of fairness with a new process. In other words, if notice was the flaw, then why isn’t the solution to provide such notice now and allow Justice Girouard to respond if he wishes?”

That apparently was the thinking of the inquiry committee’s majority, Federal Court Chief Justice Paul Crampton and Moncton lawyer Ronald LeBlanc of LeBlanc Maillet. In their report to the council last year, they suggested if procedural fairness requires that the judge be given an opportunity to respond to their concerns about his testimony, the council should bring forward a new allegation of misconduct in that regard — either before a newly struck inquiry committee or before the full council. However they also concluded that the judge had been given an opportunity to respond to the evidence at the inquiry hearing and that procedural fairness did not require a further hearing.

Chief Justice Crampton and LeBlanc identified six “contradictions, inconsistencies and implausibilities” in the judge’s defence which were “much more than mere oversights attributable to the passage of time or the usual types of inconsistencies that can result from being nervous about testifying.

“A compromising of a judge’s integrity through the giving [of] false and deceitful evidence before a committee of his peers undermines the integrity of the judicial system itself and strikes at the heart of the public’s confidence in the judiciary,” they reasoned. “If Justice Girouard were to continue as a judge of the Superior Court of Quebec, this would, in our opinion, undermine public confidence in the entire judicial system.”

But the inquiry committee’s chair, Manitoba Chief Justice Richard Chartier, saw the evidence quite differently. He argued “that the inconsistencies, errors or weaknesses in Justice Girouard’s testimony are not serious enough to give rise to any concrete doubt about his credibility…I consider that the inaccuracies identified by my colleagues can be the result of being nervous about testifying, or be mere oversights attributable to the passage of time or a genuine willingness to provide explanations or details regarding a prior response.”

Nor was there what Chief Justice Chartier saw as the required independent evidence to show that the judge deliberately attempted to mislead the inquiry committee.

Chief Justice Chartier concluded that there were no grounds to recommend the judge’s removal, given that the committee unanimously dismissed the drug allegations and “we cannot impose a consequence for a misconduct that was not part of the notice of allegations” prepared by the CJC’s independent counsel.

The council’s report notes “although unnecessary for purposes of our conclusions, we also observe that the [inquiry committee] majority’s comments present a clear conundrum. It would seem that either (1) there was no drug transaction or (2) the judge misled the committee and there was a drug transaction. The majority’s reasoning does not resolve this apparent paradox. In light of this conundrum, and considering that all three members of the committee concluded that there was not sufficient evidence to establish [the drug purchase allegation]…and in light of the minority conclusion about the judge’s credibility, we would in any event have been unable to act on the majority’s findings.”