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Panel divided again on how a judge should be sanctioned

Thursday, December 17, 2015 @ 7:00 PM | By Cristin Schmitz

Members of the Canadian Judicial Council have disagreed sharply again over whether another Quebec judge’s integrity is so dubious that the public can no longer have confidence in him.

Last month, a CJC inquiry committee split 2-1 to recommend that Quebec Superior Justice Michel Girouard be removed from the bench for giving “false and deceitful evidence” when he successfully defended himself at the CJC against allegations that he used cocaine while he was a lawyer.

The inquiry committee unanimously agreed the drug allegations were unproven, but the majority urged he be kicked off the bench anyway because they believed his testimony “lacked candour, honesty and integrity” and “he deliberately attempted to mislead the committee by concealing the truth” — two conclusions expressly rejected by their dissenting colleague.

The latest CJC decision this month reveals an equally stark disagreement within the council of 39 chief and associate chief justices and other senior judges over what amounts to misconduct sufficient to remove a judge for lack of integrity in a case involving his breach of municipal campaign financing rules before his appointment to the bench by the federal Liberals in 2003.

In a decision disclosed Dec. 2, the council of chief justices voted 16-3 not to recommend to Liberal Justice Minister Jody Wilson-Raybould the removal of Quebec Superior Court Justice Michel Déziel.

In dissent, Newfoundland Chief Justice Derek Green, New Brunswick Court of Queen’s Bench Chief Justice David Smith and Court Martial Court of Appeal Chief Justice Richard Bell warned that “the approach adopted by the majority risks being perceived as allowing serious misconduct to be discounted solely on the basis of outward appearances of other good qualities not directly related to the issue under consideration” — the key issue being whether the judge has turned over a new leaf since his misconduct in 1997 and has the necessary integrity to stay on the bench.

Osgoode Hall law dean Lorne Sossin told The Lawyers Weekly the CJC members’ deep division over how to understand, and apply, the integrity requirement in the council’s own Ethical Principles for Judges “puts the spotlight again on the opaque nature of the standards of conduct for Canadian judges.

“That said, the decision does a reasonably good job of distinguishing between more and less serious activity: the majority focuses on the conduct as if it were a parking ticket (not criminal, subject to a minor fine, on the low end of the scale of misconduct, etc.), while the dissenters look to the repeated disregard…for the democratic process,” Sossin added.

He said that both the majority and minority expressed well-reasoned and principled views

“On the whole, this decision actually enhances public confidence by this clarity of reasoning, even if the existence of majority and minority reasons may strike some as further evidence of a house divided,” he explained by email.

The majority’s dismissal of the case ends the CJC review sparked in 2013 when Justice Déziel was mentioned by a witness at the Charbonneau inquiry into corruption in Quebec’s construction industry. The judge later admitted to the CJC that in 1997 he knowingly breached Quebec’s Elections Act prohibiting corporate contributions to municipal political parties.

As chief organizer of the Parti de L’Action civique de Blainville at that time, the lawyer acted as an intermediary to convey smaller sums that totaled $30,000 to $40,000 in cash from an engineering company that did business with the city to a campaign organizer for the Parti de L’Action civique, for use in a municipal election campaign.

All agreed that this was misconduct. But both the independent counsel who presented the case against the judge, as well as a three-person CJC inquiry committee which reported to the full council earlier this year, concluded that his actions did not meet the high test of being “so manifestly and profoundly destructive to the concept of impartiality, integrity and independence that public confidence would be so undermined as to render the judge incapable of remaining in office.”

The CJC inquiry committee, chaired by New Brunswick Chief Justice Ernest Drapeau, unanimously determined last July the judge’s misconduct while a lawyer “was not so serious as to warrant removal.” The inquiry said it reached that conclusion after it “considered the matter fully” including that: the infractions were non-criminal and usually sanctioned by a minimum fine of $100; the offences were time-barred before the judge was appointed; other mitigating factors, including the judge’s “irreproachable’ career on the bench, his apology, and “the unequivocal support” expressed by his chief justice and associate chief justice.

This month’s per curiam reasons by the council’s majority, including Federal Court Chief Justice Paul Crampton, Ontario Superior Court Chief Justice Heather Smith and 14 others, essentially track the inquiry committee’s reasoning, although the Council considered the matter afresh.

“We are of the view that Justice Déziel understands the onerous responsibilities of his office and takes his oath of office very seriously,” the council’s majority emphasized. “The reoccurrence of similar conduct on his part cannot be reasonably contemplated.”

The majority said his actions were not criminal nor “on the high end of the spectrum of misconduct.” Moreover, the limitation period meant “to allow those who commit minor offences to rest easy after a period” had expired before he successfully applied to the bench.

They said he was “forthright with the inquiry committee,” admitted his misconduct, and expressed sincere regret.

“We come to the view that Justice Déziel is, and has been for the entire tenure of his judicial career, a man of integrity who has fully respected his oath of office. His shortcomings before his appointment to the bench cannot be minimized, but nor can all the indicia of his good conduct since then.”

The three dissenters skewered the majority’s analysis and decision, arguing its reasoning did not support its conclusion.

They stressed “the misconduct should be viewed from the perspective of a reasonable person, generally informed about the facts and about our institutions but not part of the legal community’s inside conversation. That is the context in which one must ask the question whether the public would doubt the judge’s integrity.”

The dissenters argued the majority minimized and downplayed the seriousness of the misconduct which “strikes at the heart of one of Canada’s fundamental values, the preservation of the democratic process” and didn’t identify that the “fundamental issue at stake in this case is judicial integrity.”

Furthermore, the dissenters said the majority failed to sufficiently probe what his misconduct says about the judge’s integrity going forward; didn’t put the requisite onus on him to satisfy the CJC that he had changed for the better and thus the public can be confident in his integrity; and placed too much reliance on the positive things fellow judges and lawyers said about him (hard worker, collegial etc.) that in no way addressed the key issue of whether he has the integrity necessary for the bench.

The minority also said there was no positive evidence that the judge changed his values.

Chief Justice Green noted that it was not until the judge was publicly accused, and facing a CJC inquiry, “that he was motivated to make any statements in this regard and then only reluctantly near the very end of the process.

“There is nothing on the record to suggest that his revision of attitude was the result of self-reflection and a commitment to act differently that occurred before he was forced to confront the issue by external forces and before his interest in self-preservation was engaged,” Justice Green said.

The minority argued “a reasonable person informed of the facts, and thinking the matter through, must question his integrity in these circumstances.

“In the absence of evidence of fundamental change, the nagging doubt would always be there: if he was willing to act illegally in a matter involving our governmental processes so long as he was likely to get away with it, why not again? The fact that on the surface he might appear to act always with propriety is no reassurance because his public persona in the past masked his true attitude.”